DISCLOSURE BY THE GOVERNMENT
FED. R. CRIM. P. Rule 16(a)(1)(A) provides that upon request of the defendant the Government shall permit discovery of:
- Any relevant written or recorded statements made by the
- The substance of any oral statement made by the defendant to a person known to him to be a Government agent, whether before or after arrest, which the Government intends to offer in evidence at the trial.
- The “portion of any written record” containing the substance of any relevant oral statement made by the defendant whether before or after arrest in response to any person then known to be a government agent.
- The recorded testimony of the defendant before a grand jury relating to the offense charged, and where the defendant is a corporation, partnership, association, or labor union, the court may grant discovery of relevant recorded grand jury testimony of any officer or employee of such entity who was at the time of the charged acts or of grand jury proceedings able to legally bind the defendant with respect to the activities involved in the charges.
WRITINGS OR TAPE RECORDINGS OF THE DEFENDANT
Rule 16(a)(1)(A) provides that written or tape recorded statements of the accused need only be relevant to fall within its structures, whether or not the Government intends to offer same at trial.
Unlike unrecorded oral statements, the defendant’s written or recorded statements are discoverable without regard to whether they were made before or after the accused’s arrest. US v. Crisona, 416 F.2d 107, 112-116 (2d Cir. 1969), cert. den., 397 US 961 (1970) (noting failure to disclose held harmless). See also US v. Bufalino, 576 F.2d 446 (2d Cir. 1978), cert. den. (stating where F.B.I. destruction of poor quality back-up tape recordings of defendants was strongly criticized as an infringement on Rule 16, but nevertheless held to be harmless error); US vs. Grammatikos, 633 F.2d 1013 (2d Cir. 1980); US v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976), cert. den. sub nom., Erlichman v. US, 431 US 933 (1977); US v. Walker, 538 F.2d 266 (9th Cir. 1876); US v. Rosenberg, 299 F. Supp. 1241 (S.D.N.Y. 1969) (Frankel, J.).
Tape recordings of a defendant’s conversation, even if unknown to the defendant at the time are as well within the rule. David v. US, 413 F.2d 1226, 1230-31 (5th Cir. 1969).
Written statements discoverable under Rule 16 can be in the form of letters, even though not addressed to Government agents, and even though intercepted by unintended third parties. US Caldwell, 543 F.2d 1333, 1352 (D.C. Cir. 1975), cert. den., 423 US 1087.
When one oral statement by the defendant differs from his written confession, the Government’s failure to provide that oral statement may constitute reversible error. US v. Ible, 630 F.2d 389 (5th Cir. 1980).
An unsolicited, spontaneous admission by a defendant within the hearing of an undercover police officer is not discoverable under this portion of the rule (where it is not recorded). US v. Green, 548 F.2d 1261 (6th Cir. 1977); US v. Viserto, 596 F.2d 531 (2d Cir. 1977), cert. den., 444 US 841, 100 S. Ct. 80.
DEFENDANT’S ORAL STATEMENTS
Rule 16(a)(1)(A) mandates disclosure of oral statements either before or after arrest only when they are made in response to interrogation by a person then known to the defendant as a government agent. US v. Viserto, 596 F.2d 531 (2d Cir. 1979); US v. Zarattini, 552 F.2d 753 (7th Cir. 1977); US v. Carter, 621 F.2d 240 (1980); US v. McElroy, 697 F.2d 459, 465-66 (2d Cir. 1982) (noting substance of oral statements includes Defendant’s revocation of Miranda rights, request of lawyer prior to relinquishing those rights and statement to DEA Agent).
STATEMENTS BY DEFENDANT WHICH GOVERNMENT INTENDS TO USE AT TRIAL
Rule 16(a)(1)(A) also requires the disclosure of “the substance of any other relevant and statement made by the defendant whether before or after arrest in response to interrogation by any person then known by the defendant to be a government agent if the government intends to use that statement at trial.”
The First Circuit has held that “use at trial” includes not only use in the government’s case in chief, but also use in rebuttal, which the government reasonably anticipates. US v. Ferrer-Cruz, 899 F.2d 135 (1st Cir. 1990).
However, the Fifth circuit has held that a failure by the government to disclose all of the defendant’s statements pretrial is not per se reversible error, even if the undisclosed statements are used against the defendant at trial. In order to obtain a reversal, the defendant must show “prejudice to his substantial rights” resulting from this procedure. U.S. v. Gonzalez, 967 F.2d 1032 (5th Cir. 1992).
ORAL STATEMENTS DIFFER FROM WRITTEN
Where one’s oral statement differs from his written confession, the government’s failure to provide the oral statement may constitute reversible error. US v. Ible, 630 F.2d 389 (5th Cir. 1980).
SUMMARIES OF INTERVIEWS
Rule 16(a)(1)(A) now requires discovery of any summary of an agent’s interview with the defendant, even if included within his investigative report. Same was not true prior to the 1972 Amendment. See US v. Fioravanti, 412 F.2d 407, 411-12 n.12 (3d Cir. 1969), cert. den., 396 US 83 (1969); US v. Johnson, 525 F.2d 999, 1004 (2d Cir. 1975), cert. den., 424 US 920 (1976).
AGENT’S ROUGH NOTES
Discovery of an agent’s “rough notes” utilized to prepare his agency report has been held proper under Rule 16 by some circuits. US v. Jefferson, 445 F.2d 247 (D.C. Cir. 1971); US v. Fallen, 498 F.2d 172 (8th Cir. 1974). But see US v. Roemer, 703 F.2d 805 (5th Cir. 1983) (stating agent’s rough notes are discoverable as Jencks Act material). Two circuits have imposed sanctions where the notes have been destroyed, even if destruction of such discoverable material was inadvertent or in good faith. US v. Harrison, 524 F.2d 421 (D.C. Cir. 1975); US v. Harris, 543 F.2d 1247 (9th Cir. 1976). The Court of Appeals for the Fifth Circuit, however, has refused to impose sanctions for any such destruction of agent’s notes. US v. Cole, 634 F.2d 866 (5th Cir. 1981).
A prosecutor’s notes of his discussions with a witness have been held not to constitute Jencks statements where the witness neither approved, adopted, nor signed those notes. US v. O’Malley, 796 F.2d 891 (7th Cir. 1986).
Prior to being discoverable under Rule 16, the defendant must show that an unrecorded oral statement was made to a government agent and that the defendant knew he was an agent at the time the statement was uttered. US v. Viserto, 596 F.2d 531 (2d Cir. 1978); US v. Zarattini, 552 F.2d 753 (1977).
“SILENCE” MAY CONSTITUTE A DISCOVERABLE “STATEMENT”
At least one court has held that even silence may constitute a “statement” discoverable under FED. R. CRIM. P. Rule 16(a)(1)(A). US v. Manetta, 551 F.2d 1352 (5th Cir. 1977).
“The statement that I have no statement to make but wish to see my lawyer, itself is a statement within the terms of Rule 16.” US v. Manetta, 551 F.2d 1352 n.4 (5th Cir. 1977) (stating the Court reserved the issue of whether the admission of that statement, itself, constituted a violation of his Fifth Amendment privilege).
DEFENDANT’S GRAND JURY TESTIMONY
Any “recorded testimony of the defendant before a grand jury which relates to the offense charged” is discoverable under Rule 16(a)(1)(A).
The policy of grand jury secrecy under FED. R. CRIM. P. Rule 6(e) does not apply to a witness before that grand jury and therefore there is no impediment to disclosure of the defendant’s own testimony before the grand jury. Dennis v. US, 384 US 855, 86 S. Ct. 1840, 16 L.Ed.2d 953 (1966). See also In re-Sealed Motion, Division No. Misc. 2 D.C. Cir. 1989 (stating, “…a grand jury witness has a general right to a transcript of such testimony absent the government demonstrating countervailing interests which outweigh the right to release of a transcript.”).
As the rule is couched in mandatory terms, many courts do not even require a showing of need of relevance in interpreting this rule. See, e.g., US v. United Concrete Pipe Corp., 41 F.R.D. 538 (N.D. Tex. 1966).
Recording of all grand jury proceedings including statements made by prosecution is now required by FED. R. CRIM. P. Rule 6(e)(1).
Rule 16(a)(1)(A) also adopts a broad interpretation of the discovery of grand jury testimony of corporate officers or employees where the corporation is a defendant. However, it is interesting to note that this is one of the only provisions of the Rule which requires a motion directly to the court, a point not discussed in the Advisory Committee note, although the note does intimate that testimony of such corporate officers, or other officials is now “discoverable as statements of the defendant.” Advisory Committee Note, Amendments to FED. R. CRIM. P. Rule 16 (1974). See US v. 6918 North Tyron Street, Charlotte, NC, 672 F. Supp. 890 (W.D.N.C. 1987) (noting corporation defendant entitled to disclosure of documents obtained through grand jury investigation of corporation’s former owner).
PRODUCTION OF DEFENDANT’S STATEMENTS AT “DETENTION HEARING”
One court has recently ordered a “detention hearing … be remanded to the Magistrate for rehearing on matters regarding Defendant’s pre-trial detention with instructions that the government be directed to promptly produce the tape recording of any statements made by [the] defendant” at a “detention hearing” held pursuant to 18 U.S.C. § 3146 “immediately upon the person’s first appearance before the judicial officer” under FED. R. CRIM. P. Rule 4, but not later than 5 days thereafter. US v. Musgrave, _ F.Supp_, No. SA-85-CR-132 (July 5, 1985).
“FED. R. CRIM. P. Rule 16(a)(1)(A) expressly mandates that ‘upon request’ of a defendant the government shall permit the defendant to inspect and copy …any relevant written or recorded statement made by the defendant…
Whatever the Government’s concerns as to the production of this statement now, rather than later, are outweighed by the strictures of Rule 16(a)(1)(A)’s commands.
Counsel’s legitimate request for admittedly discoverable material should have been honored by the government, or at least ordered b the Magistrate below, particularly, where the Magistrate received, reviewed and relied upon that evidence in denying Defendant Musgrave’s bail. The government’s refusal to provide same “upon demand’ deprived Defendant of discovery guaranteed under Rule 16(a)(1)(A) and the Magistrate erred, under the instant facts, in refusing to order the government to comply with the Rule’s unambiguous command.” (emphasis added) US v. Musgrave. _ F. Supp_. No. SA-85-CR-132 (July 5, 1985).
In US v. Gaitan, the District Court applied FED. R. CRIM. P. Rule 16 holding: “That the government is obligated, at the time of a detention hearing, to produce to a defendant, upon his request, any of his oral or written statements it has in its possession (regardless whether such statements were) relevant to the detention hearing.” US v. Gaitan, F.Supp. , No. SA-88-CR-254 (W.D. Tex. 1988).
DEFENDANT’S CRIMINAL RECORD
Rule 16(a)(1)(B) provides for the mandatory disclosure of the defendant’s prior criminal record, a matter of some dispute under the old rule.
GOVERNMENT WITNESSES’ CRIMINAL RECORDS
Counsel should request the “rap sheets” of prior criminal convictions of all witnesses the Government intends to call at trial, this is critically important for meaningful cross-examination. And while discovery of such information has on occasion been refused, Hemphill v. US, 392 F.2d 45 (8th Cir. 1968); US v. Westmoreland, 41 F.R.D. 419, 427 (S.D.N.Y. 1967); US v. Taylor, 542 F.2d 1023 (8th Cir. 1976), the majority of courts have required production of same recognizing that the defendant, unlike the Federal Government with its vast data storage and investigation facilities, is at a substantial disadvantage in obtaining such information. US v. Tanner, 279 F. Supp. 457, 471-472 (N.D. Ill. 1967); US v. Deardorff, 343 F. Supp. 1033 (S.D.N.Y. 1971); US v. Houston, 339 F. Supp. 762 (N.D. Ga. 1972); US v. Curry, 278 F. Supp. 508, 514 (N.D. Ill. 1967); US v. Jepson, 53 F.R.D. 289, 291 (E.D. Wis. 1971). See also WRIGHT, FEDERAL PRACTICE AND PROCEDURE, Criminal § 254 (noting that defense counsel is at “a substantial disadvantage,” without the criminal records of Government witnesses).
Conviction records of government witnesses constitute exculpatory material within the meaning of Brady v. Maryland, 373 US 83 (1963) and, therefore, production should be required as a matter of “due process.” The fact that such information would serve to impeach any testimony by said witnesses is sufficient to bring the statement under the scope of Brady v. Maryland, since the duty imposed upon the government by Brady to disclose evidence it has in its possession applies to any information “…favorable to the accused either as direct or impeaching evidence” Williams v. Dutton, 400 F.2d 797 (5th Cir. 1968); US v. Bagley, 105 S. Ct. 3375 (1985); US v. Keogh, 391 F.2d 138 (2d Cir. 1968); US v. Agurs, 427 US 97, 106-107 (1976) (requiring a specific request). See also Garrison v. Maggio, 540 F.2d 1277 (5th Cir. 1976).
Furthermore, the defendant will be unable to comply with the requirements of FED. R. EVID. 609(b) requiring advance written notice of intent to use certain prior convictions for impeachment purposes where the defendant is deprived of access to such records.
Although certain prior convictions are admissible for impeachment purposes, see FED. R. EVID Rule 609, discovery of same has often been provided only after the witness has testified at trial. US v. Anzelmo, 319 F. Supp. 1106 (E.D. La. 1970); US v. Turner, 423 F. Supp. 957 (E.D. Tenn. 1976); US v. McCord, 509 F.2d 891 (7th Cir. 1975) (stating then reversible error only if substantial harm from non-disclosure can be shown).
However, in order to prove up such evidence, it is necessary to obtain certified copies of such convictions from the clerk of the court in the jurisdiction where the conviction occurred. Accordingly, pre-trial access to F.B.I. arrest and conviction records is necessary to provide information upon the basis of which these documents may be obtained in sufficient time to be of use at trial. The government will have ready access to any defense witness’ rap sheet and will be able to impeach those witnesses with that material. On the other hand, the defense does not have access to those records. This would appear to be the very type of imbalance in investigative resources the Supreme Court was speaking to in Wardius v. Oregon, 412 US 470 (1973).
In US v. Auten, 632 F.2d 478 (5th Cir. 1980), the Fifth Circuit held that the Government’s failure to disclose the criminal record of its witnesses met the requirements of Brady, requiring reversal even though the prosecution failed to seek such records and was therefore unaware of same. But see US v. Browne, 829 F.2d 760 (C.A. 9-Dr. 1987) (noting government failed to release police report prior to trial but made it available during trial. Defendant’s attorney was able to impeach key prosecution witnesses with the report and thus, no new trial was required).
In the hopes of obtaining early disclosure, counsel should explain to the trial judge that providing defense counsel with a “rap sheet” after the witness testifies on direct examination at trial will cause unnecessary trial delays since such a “rap sheet” is admissible hearsay, is of use and value even for impeachment; it will rarely provide adequate information regarding the “disposition” of the causes therein reflected, and an order to obtain a certified copy of the previous conviction from the appropriate jurisdiction pursuant to FED. R. EVID. Rule 803(2) during trial will entail significant effort and delay. See also US v. Phillips, 664 F.2d 971 (1981); US v. Martino, 648 F.2d 367 (1981). But see US v. Luis-Gonzalez, 719 F.2d 1539 (1983).
“Because there is no allegation that the government attorneys in the instant case had any knowledge of Wilson’s misdemeanor convictions for violations of state law and because the government had no obligation to seek out information on Wilson’s criminal record not otherwise contained in government records, the government did not suppress any evidence favorable to the appellants. Although we will not condone the withholding of a prosecution witness’ criminal record, the disclosure of the witness’ FBI ‘rap sheets’ fully compiled with Brady and the requirements of due process.” US v. Luis-Gonzalez, 719 F.2d 1539, 1549 (1983).
DOCUMENTS AND TANGIBLE OBJECTS
Rule 16(a)(1)(C) provide that “…the Government shall permit the defendant to inspect and copy” the following:
- Tangible Objects,
- Buildings, or
Upon request of the defendant new Rule 16(a)(1)(C) places on the government a mandatory duty of disclosure, where:
- The defendant shows that disclosure of the items is material to the defense, US v. Hubbard, 474 F. Supp. 64 (D.D.C. 1979).
- The Government intends to use the item in its presentation of the case in chief, US v. Pascal, 606 F.2d 561 (5th 1979) (stating rebuttal evidence is not discoverable); US v. Lambert, 580 F.2d 780 (5th Cir. 1978).
- The item was obtained from or belongs to the defendant, or any agent, employee or consultant of the US v. Countryside, 428 F. Supp. 1150 (D.C. Utah, 1977).
A document is any instrument on which is recorded, in writing, any matter which may be evidentially used. US v. Pascual, 606 F.2d 561 (5th Cir. 1979).
TEXTS AND EXAMINATIONS
Rule 16(a)(1)(D) provides for the disclosure of any testing, analysis, or examinations.
Handwriting specimens and the analyst’s reports are discoverable, US v. Buchanan, 585 F.2d 100 (5th Cir. 1978) under Rule 16(a)(1)(C), as are the medical records of the defendant; US
- Dannon, 481 F. Supp. 152 (D. Okla. 1979) (noting not necessarily true with respect to a witness); US v. Brown, 479 F. Supp. 1247 (D. Md. 1979) (stating chemicals produced by Government chemists from seized evidence).
Medical records of witnesses are not generally discoverable. US v. Brown, 479 F. Supp. 1247 (D. Md. 1979). Those records of the defendant are discoverable, US v. Dannon, 481 F. Supp. 152 (D. Okla. 1979).
Chemist’s reports are discoverable as documents. US v. Gordon, 580 F.2d 827 (5th Cir. 1978).
EXPERT WITNESS TESTIMONY, OPINION, BASIS, AND QUALIFICATIONS
Under Rule 16(a)(1)(E), at the defendant’s request, the government shall disclose to the defendant a written summary of testimony that the Government intends to use.
GOVERNMENT WITNESSES’ NAMES AND ADDRESSES
While the proposed draft of Rule 16(a)(1)(E) provided for mandatory disclosure of Government witnesses names, addresses and any record of felony convictions, Congress deleted same on July 30, 1975. Previously, “witness lists” and “rap sheets” of prospective Government witnesses had been provided by some courts even under the more restrictive provisions of former Rule 16(b). US v. Leichtfuss, 331 F.Supp. 723 (N.D. Ill. 1971); US v. Palmisano, 273 F. Supp. 750, 752 (E.D. Pa. 1957); US v. Moceri, 359 F. Supp. 431 (N.D. Ohio, 1973); US v. Hardy, Slip Op. Cr. No. 869-69 (D.C. Cir. 1968); US v. Baum, 482 F.2d 1325 (2d Cir. 1973). See also US v. Richter, 488 F.2d 170, 175 (9th Cir. 1973). In light of Congress’ express disapproval of proposed Rule 16(a)(4), which specifically provided for such disclosure, those decisions are now questionable. US v. Krohn, 558 F.2d 390 (8th Cir. 1977), and in dicta the Supreme Court noted with regard to the Constitutional parameters of Brady v. Maryland, 373 US 583 (1963), that “[I]t does not follow from the prohibition against concealing evidence favorable to the accused that the prosecution must reveal before trial the names of all witnesses who will testify unfavorably.” Weatherford v. Bussey, 429 US 545, 559 (1977).
However, in light of the authority given the courts by FED. R. CRIM. P. Rule 16(d)(2) to impose protective orders upon any discovery granted, and thereby protect against any intimidation of Government witnesses, it seems unnecessary to deny to a defendant the names of persons known to the Government who have knowledge of facts relevant to the case. The names of Government witnesses should be discoverable by the defense, and at least one court has granted such discovery on a limited basis, recognizing and discussing the problem. US v. Holmes, 18 Cr. L. 2199 (D.C. Cir. 1975).
“Congress did not require mandatory disclosure of the names and addresses of government witnesses as had been proposed. Neither did it mandate nondisclosure. Thus, there remains a narrow area of authority in the trial court allowing for the exercise of discretion to order pretrial disclosure of government witnesses. Our decision made clear that the use of this authority is to be reserved for the rare criminal case in which the defense can conclusively demonstrate a compelling need for disclosure such as to overcome the government’s strong interest in nondisclosure.” US v. Holmes, 18 Cr.L. at 2199.
Accordingly, several courts have held that while Rule 16 does not require disclosure, the trial court has discretion to order the discovery of witness’ names, so long as such information is not shown to endanger those witnesses. US v. Higgs, 713 F.2d 39 (3d Cir. 1983); US v. Richter, 488 F.2d 170 (9th Cir. 1973); US v. Price, 448 F. Supp. 503, 508-18 (D. Colo. 1978). See also Will
- US, 389 US 90, 100-01 (1967); US v. Anderson, 481 F.2d 685, 693 (4th Cir. 1973), aff’d, 417 US 211.
“The Court has discretion, upon a showing of compelling need, to grant a motion for discovery of the government’s witness list. Defendants assert that they have established a compelling need for the witness list, on the ground that there are seventy potential witnesses in this case and thousands of documents to be reviewed, and that adequate preparation is impossible without an advance witness list.
Preparation for trial, effective cross-examination, expediency of trial, possible intimidation of witnesses, and the intrinsic reasonableness of the request are among the factors a court may consider in deciding whether to exercise its discretion to allow discovery of the witness list.
In view of the very large number of witnesses and documents involved in this case, the intrinsic reasonableness of the request, and the extreme lack of likelihood of witness intimidation, the Court concludes that defendants have established a compelling need for the government’s witness list.” US v. Madeoy, 652 F. Supp. 371, 375-76 (D.D.C. 1987).
It should be more than obvious that the names of persons with knowledge of the facts relevant to the case is generally the most critical information obtainable for the preparation of an adequate defense.
“It seems inconceivable that in the middle of the Twentieth Century we should regard as fair a proceeding in which counsel is unaware of the witnesses whom he must cross until the moment they are called.” Pyle, The Defendant’s Case For More Liberal Discovery, 33 F.R.D. 82, 92 (1963).
See also US v. Brock, 833 F.2d 519 (5th Cir. 1987) (noting disclosure of names of four out of five government witnesses was adequate where fifth witness’ name was not deliberately withheld and where defendant was given opportunity to present evidence on any new issue raised by the expert).
One court has held that the materials relied on by a government expert, who laid the predicate for a “novel scientific test” (DNA blood typing) was discoverable by the defense under Rule 16. U.S. v. Yee, 129 F.R.D. 629 (N.D. Ohio 1990). The court ruled that the production of the materials was necessary in order that he defendant could prepare for cross, and let his own experts evaluate the trustworthiness of the materials.
IDENTITY OF INFORMANTS
The disclosure of the identity and whereabouts of a police informant is as well required upon a showing that he would be “relevant and helpful” to the defense. Rovario v. US, 353 US 53, (1957).
“Where the disclosure of an informer’s identity …is relevant and helpful to the defense of an accused, or is essential to the fair determination of a cause, the privilege must give way.” Rovario v. US, 353 US at 60-61.
In the event the prosecution refuses to disclose the identity of the informer, dismissal is the appropriate remedy, Rovario v. US, 353 US 53 (1957); US v. Ayala, 643 F.2d 244, 247 (5th Cir. 1981) (stating “the government must disclose to the defense the informer’s identity. Otherwise, the action must be dismissed”).
“In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.” Rovario v. US, 353 US at 61.
And where the prosecution is unable to locate an informant whose identity is found to be “relevant and helpful” to the defense, such informant’s unavailability, even if through no fault of the prosecution, violates the defendant’s constitutional right to “due process” where “…there is a reasonable possibility that, if the [informant] had been available to testify, the defendant would not have been convicted.” US v. Walton, 411 F.2d 283, 288 (9th Cir. 1969); US v. Leon, 487 F.2d 389 (9th Cir. 1973).
However, the Fourth Circuit has held that although the government must make a reasonable effort to secure an informant’s presence at trial, it cannot be required to guarantee that he will appear and a reasonable effort by the government may be sufficient and the government will not be held guilty of concealment. US v. Hargrove, 647 F.2d 411, 415 (1981). See also US v. Diaz, 535 F.2d 130,134 (1976) (suggesting belated request by defendant and diligence by government equals no denial of due process); US v. Hart, 546 F.2d 798 (1976).
Where the informant is a factual witness to the crime then his testimony will almost invariably be relevant and material, requiring disclosure. US v. White, 379 F.2d 559 (7th Cir. 1966); US v. Debrow, 346 US 374, 378 (1953); Will v. US, 389 US 80, 99 (1957); US v. Roberts, 338 F.2d 646 (2d Cir. 1968); US v. Barnett, 418 F.2d 309 (6th Cir. 1969); Gregory v. US, 369 F.2d 185, 188 (D.C. Cir. 1966); US v. Barnes, 486 F.2d 776, 779 (8th Cir. 1973).
Where the informant is a participant in the alleged criminal offense, disclosure of his identity should be required; Lopez-Hernandez v. US, 394 F.2d 820 (8th Cir. 1968) [informant introduced defendant to undercover agent witness]; US v. Silva, 580 F.2d 144 (5th Cir. 1978) (noting informant introduced defendant, where identity was key issue).
In US v. Ayala, 643 F.2d 244 (5th Cir. 1981), the Fifth Circuit noted that:
“The informer’s level of involvement with the criminal activity is an important consideration. Suarez v. US, 582 F.2d 1007 (5th Cir. 1978); Alvarez v. US, 525 F.2d 980, 982 (5th Cir.), cert. denied, 425 US 995 (1976). The more active the participation, the greater the need for identification” US v. Gonzalez, 606 F.2d 70 (5th Cir. 1979)”. US v. Ayala, 643 F.2d at 246.
And even where the “informer was not an integral member of the criminal activity” his identity may be required where he was more than a “passive observer” or “tipster”. US v. Ayala, 643 F.2d at 246 (stating where female informer “arranged the initial meeting” . . . “ acted as an intermediary relaying messages” and was “also present at each meeting”).
Accordingly, the defensive allegation that the informer entrapped defendant generally requires disclosure.
“…where the defendant asserts he was entrapped by a government informer, Rovario is ordinarily inapplicable since the defense rests upon allegations which the informer would be in a unique position to affirm or deny.”
US v. Godkins, 527 F.2d 1321, 1327 n.4 (5th Cir. 1976) (citing US v. Gommez-Rojas, 507 F.2d 1213, 1219 (5th Cir. 1975)). Cf. US v. Freund, 525 F.2d 873 (5th Cir. 1976); US v. Doe, 525 F.2d
878 (5th Cir. 1976); Alvarez v. US, 525 F.2d 980 (5th Cir. 1976) [“Rovario-type cases”].
However, where the informant was a “mere tipster”, playing no part in the prohibited transaction and only supplying information for probably cause, no disclosure will be required. US
- Clark, 482 F.2d 103 (5th Cir. 1973); US v. Acosta, 411 F.2d 627 (5th Cir. 1969) (stating disclosure not required where informant’s role consisted solely of introducing the defendant to Government agents and being present during the illegal transaction.]) While there is no general requirement to provide the informant at pre-trial hearings, McCrary v. Illinios, 386 US 300, 312 (1967) (upholding constitutionality of Illinois informant’s privilege as applied to preliminary hearings to determine probable cause).
Where the informer’s credibility is at issue, disclosure may be required even where his testimony is only relevant to the issue of probable cause for an arrest or search; US v. Anderson, 509 F.2d 724, 729 (9th Cir. 1975); US v. Freund, 525 F.2d 873, 877 (5th Cir. 1976) (stating, “Nevertheless, McCrary does not operate as a bar to ordering disclosure in all probable cause cases
. . . In a proper case, the trial court may wish to examine the informant to assess his credibility or accuracy”); US v. Kiser, 716 F.2d 1268, 1271-72 (9th Cir. 1983).
“The informer in Rovario was a percipient witness to the crime and was essential to the development of Rovario’s defense. The Government …emphasizes that ‘the interests at stake in a suppression hearing are of lesser magnitude than those in the criminal trial itself.’ …
It is clear, however, that these factors do not preclude disclosure when the informant’s identity is relevant only to the probable cause determination. US v. Anderson, 509 F.2d 724, 729 (9th Cir.), cert. denied, 420 U.S. 910 (1975). In McCray v. Illinois, the Court held that the due process clause does not require a fixed rule mandating disclosure at a pretrial hearing. 386 U.S. at 311-13. However, McCray did not hold that the informer’s privilege was absolute. It implicitly endorsed disclosure where alternate means of assuring the existence of probable cause….
We conclude, therefore, that the limited right of disclosure announced in Rovario and McCray is consistent with the challenge to the warrant affidavit permitted under Franks.”
NO PRIVILEGE WHERE IDENTITY KNOWN
Courts have held that there is no informer’s privilege where the identity of the informant is already known to the defense. US v. Godkins, 527 F.2d 1321 (5th Cir. 1976).
“The concerns voiced by the Supreme Court in Rovario– there the desirability of shielding from disclosure to those who would have cause to resent it, the identity of an informer – are not violated by our holding here. Appellant, the person who would have the greatest cause to resent the actions of the alleged informer, is not seeking disclosure of the informer’s identity, but is merely exercising his Sixth Amendment right to call a witness whose identity and participation in the alleged illegal acts are already known to him. Rovario does not apply in this situation.” US v. Godkins, 527 F.2d 1321, 1322 (5th Cir. 1976).
Indeed, Rovario contains dicta to this effect, “once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable.” Rovario v. US, 353 US at 60.
“The record contains several intimations that the identity of John Doe was known to petitioner and that John Doe died prior to the trial. In either situation, whatever privilege the Government might have had would have ceased to exist, since the purpose of the privilege is to maintain the Government’s channels of communication by shielding the identity of an informer from those who would have cause to resent his conduct.” Rovario v. US, 353 US at 60 n.8.
See also US v. Melchor Moreno, 536 F.2d 1042, 1047, n. 7(5th Cir. 1976) (stating “when an accused person wishes to subpoena an individual already known to him, the privilege is irrelevant”).
Recently the Fifth Circuit held that a trial court “abused its discretion in refusing to issue
[a] subpoena” to an attorney who provided evidence to Government investigators which the accused claimed was obtained by virtue of that individual’s representation of the accused.
US v. Fortna, 796 F.2d 724 (5th Cir. 1986) (noting the mere fact that it appeared that the lawyer had consumed controlled substances with his alleged client during those meetings, does not, in and of itself, bring the discussions within the “crime fraud exception” to the attorney-client privilege).
CONTRA US v. Tenario-Angel, 756 F.2d 1505, 1510 (11th Cir. 1985) (stating “The former Fifth Circuit recognized that merely because the defendant knows the informants name, that does not mean there is no general interest in maintaining the informant’s confidentiality”);
US v. Fischel, 686 F.2d 1082, 1092 (5th Cir. 1982) (noting although the confidential informant’s privilege no longer exists once his or her identity is known “the need for the informant’s safety, the avoidance of jeopardizing other operations, or the defendant’s ability to locate the informant himself …may justify non-disclosure of the informer’s address. It should not, however, justify non- production of said informer to testify”).
RIGHT TO INTERVIEW KNOWN GOVERNMENT WITNESSES
Where witnesses, particularly eyewitnesses, are known to the defense they should be made available to both sides. US v. Brown, 555 F.2d 407, 425 (5th Cir. 1977); US v. Scott, 578 F.2d 261, 268 (6th Cir. 1975); US v. Murray, 492 F.2d 178, 194 (9th Cir. 1973); US v. Long, 449 F.2d 288, 295 (8th Cir. 1977); US v. Gregory, 369 F.2d 185 (D.C. Cir. 1966); US v. Walton, 602 F.2d 1176, 1179-1180 (4th Cir. 1979).
“Witnesses, particularly eye-witnesses to a crime are the property of neither the prosecution nor the defense. Both sides have an equal right, and should have an equal opportunity to interview them.” Gregory v. US, 369 F.2d 185 (D.C. Cir. 1966).
In US v. Walton, 602 F.2d 1176, 1180 (4th Cir. 1979), the Fourth Circuit held that even where the government felt “…it necessary to place witnesses in protective custody”, it remains “the duty of the trial court to ensure that counsel for defense has access to the secluded witness under controlled arrangements” noting:
“A witness is not the exclusive property of either the government or a defendant; a defendant is entitled to have access to any prospective witness, although in the end the witness may refuse to be interviewed.” US v. Walton, 602 F.2d 1176, 1177-78 (4th Cir. 1979).
Where deliberate action by state or government officers causes a witness’ absence from the trial, same creates a “prima facie” deprivation of due process. Hernandez v. Estelle, 674 F.2d 313, 315-316 (5th Cir. 1981) (holding that the initial decision to leave need not be prosecutions, only that officers aided in effecting witness’ plan). Whether Defendant actively sought to locate witness is not controlling. Hernandez v. Estelle, 674 F.2d at 317.
One Court even required that Government counsel send each Government witness a letter advising:
“I suggest, therefore, that it is in your best interests and that of the court to cooperate with the lawyers in the case as they strive to determinate the facts and decide whether your testimony will be required.” US v. Rogers, 642 F.Supp. 934 (D. Colo. 1986).
See also State v. Mussehl, 408 N.W. 2d 844, No. CR-86-350 (Minn., July 10, 1987) (noting Minnesota Supreme Court disapproves of letters from prosecutors to potential witnesses discouraging those witnesses from conversing with defense investigators).
USE OF INFORMANTS AND DUE PROCESS
See US v. Cervantes-Pacheco, 826 F.2d 310 (5th Cir. 1987) overruling Williams v. U.S., 311 F.2d 441 (5th Cir. 1962).
See also: US v. Abrego, 141 F.3d 142 (5th Cir. 1998).
Where the Government intends to offer statements of co-conspirators made during the course of the conspiracy and in furtherance of the aims and objectives of that conspiracy under FED. R. EVID. Rule 801(d)(2)(E) some courts have held same discoverable since the rationale underlying that rule is that each co-conspirator is the “agent” of the other. See Advisory Committee’s Notes, Rule 801 (a)(2)(E). And as a defendant’s agent, statements made by his co- conspirators, within the scope of that agency and in furtherance of the same, are said to be impliedly authorized by the defendant as their principal and are therefore admissions by the defendant. Given that such co-conspirator’s statement are admitted as statements of or adopted by the defendant, under Rule FED. R. EVID. 801(a)(2)(E) then such statements should be discoverable as the defendant’s own, pursuant to Rule 16(a)(1)(A) on the same theories.
See US v. Agnello, 367 F.Supp. 444, 448-49 (E.D.N.Y. 1973);
US v. Turkish, 458 F.Supp. 874, 882 (S.D.N.Y. 1978) (requiring disclosure of statements were not made by prospective government witnesses);
US v. Fine, 413 F. Supp. 740, 742-43 (W.D. Wis. 1976);
US v. Mays, 460 F. Supp. 573, 573-76 (E.D. Tex. 1978);
US v. Bloom, 78 F.R.D. 591, 618 (E.D. Pa. 1977);
US v. Thevis, 84 F.R.D. 47 (N.D. Ga. 1979);
US v. Brighton Building and Maintenance Co., 435 F. Supp. 222 (N.D. Ill. 1977), aff’d., 598 F.2d 1011 (7th Cir. 1979).
Cf. US v. O’Strer, 481 F.Supp. 407 (S.D. N.Y. 1979);
US v. Hall, 424 F.Supp. 508 (D. Okla. 1975); aff’d, 536 F.2d 313, cert. den., 429 US 918
(10th Cir. 1976);
US v. McMillen, 489 F.2d 229, 231 (7th Cir. 1972);
US v. Madeoy, 652 F. Supp. 371, 375 (D.D.C. 1987).
2 Wright, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL 2d § 253 at 1.50 (1982).
But see US v. Tarantino, 846 F.2d 1384 (D.C. Cir. 1988)(noting statements of co- conspirators are not discoverable under Rule 16(A)(1)(A));
US v. Bailey, 689 F. Supp. 1463 (N.D. Ill. 1988)(holding no pretrial disclosure of co-conspirator’s statements);
US v. Roberts, 793 F.2d 580 (C.A. 4th 1986)(noting co-conspirator’s statements under Rule 801 (d)(2)(E) not discoverable as defendant’s own under Rule 16(2)(1)(A)).
“It is clear that defendants are not entitled at this time to the discovery of statements of co-conspirators who will testify at the trial…. On the other hand, it is also relatively well established that statements of co-conspirators whom the government does not intend to call as witnesses at trial are discoverable in advance under FED.
- CRIM. P. 16…. However, the discovery of these statements is limited to those that would be discoverable under Rule 16 if they had been made by the defendant himself: written or recorded statements and oral statements made in response to interrogation.” US v. Madeoy, 652 F. Supp. 371, 375 (D.D.C. 1987).
Furthermore, the non-testifying co-conspirator will not be granted immunity to preserve his Fifth Amendment privilege in order to get him to testify for the defendant. US v. Paris, 812 F.2d 471 (9th Cir. 1987).
More importantly, as the United States Court of Appeals for the Fourth Circuit very stated in US v. Roberts, 802 F.2d 682 (4th Cir. 1986);
“The intent behind Rule 16’s original authorization of criminal discovery for defendant’s was to minimize the danger of unfair (emphasis added) surprise (surprise with falsehood), to improve the fact-finding process, and to increase the opportunities for informal pleas. The progressive liberalization of the defendant statement provisions of the rule, culminating in the present version of the Rule 16(a)(1)(A), reflects the special concern felt for the danger of unfair surprise in the most devastating form of evidence, inculpating admissions of the defendant. That danger is no less real- indeed is even greater- with respect to imputable co-conspirator statements attributed to the co-conspirator in the trial testimony of others than it is with respect to statements attributed to the defendant himself in the testimony of others.” US v. Roberts, 802 F.2d 682 (4th Cir. 1986).
PRESENTENCE REPORTS OF CO-DEFENDANTS
The Fifth Circuit in US v. Trevino, 556 F.2d 2165 (5th Cir. 1977) has held these reports are not discoverable under Rule 16, the Jencks Act, or Brady, unless actually in the possession of the United States Attorney. The Fourth Circuit, however, has held that if a report contains exculpatory material that portion must be disclosed. However, if the report is only material to impeach the witness, disclosure is only required when there is a reasonable likelihood of the report affecting the trier of fact. US v. Figurski, 545 F.2d 389 (4th Cir. 1976).
However, other courts have indicated that “Bureau of Prisons’ Records” are discoverable under the Freedom of Information Act even if they related to pre-sentence reports, Carson v. US Department of Justice, 631 F.2d 1008, 1009 (D.C. Cir. 1981)(holding that “a presentence report is an agency record within the meaning of the FOIA”, even though it was “…prepared not by the Parole Commission” from whom it was sought, but rather, “by the Probation Service of the United States Courts,” which are “not agencies within the meaning of the FOIA”). Discovery of “Bureau of Prisons’ Records” relating to a co-conspirator/government witness should be allowed under the Freedom of Information Act (5 U.S.C. section 552] without relegating the criminal defendant to exhausting his administrative remedies under the Act and a separate civil suit. See US v. Brown, 562 F.2d 1144, 1152 (9th Cir. 1978) where the Ninth Circuit held that the FOIA “is applicable to discovery in a criminal trial,” in that “it would impose a needless and time consuming burden on a defendant in a criminal trial to require a separate civil action for disclosure under FOIA”].
However, thereafter in US v. United States District Court, 717 F.2d 478, 480-81 (9th Cir. 1983) that court, interpreting its earlier Brown decision, held that Rule 16’s requirement of “materiality” [not found under the Freedom of Information Act] is controlling:
“We hold that in criminal cases the Freedom of Information Act does not extend the scope of discovery permitted under Rule 16. The limitations of Rule 16 are controlling. The trial court erred in its interpretation of United States v. Brown, and as a result the issuance of its orders was clear error.”
See also Fruehauf Corp. v. Thorton, 507 F.2d 1253 (6th Cir. 1974);
US v. Murdock, 548 F.2d 599, 602 (5th Cir. 1977);
US v. Buckley, 586 F.2d 498, 500 (5th Cir. 1978).
But see Berry v. Department of Justice, 733 F.2d 1343 (9th Cir. 1984) (holding that a defendant’s own P.S.I. was subject to F.O.I.A. disclosure for use in a parole proceeding).
GRAND JURY MINUTES
Pursuant to the mandatory provisions of Rule 16(a)(1)(A), a defendant has an “absolute right” to his own testimony recorded before a grand jury. US v. Tanner, 279 F. Supp. 457, 472 (N.D. Ill. 1967); US v. United Concrete Pipe Corp., 41 F.R.D. 538, 539 (N.D. Tex. 1966); US v. Aeroquip Corp., 41 F.R.D. 441, 446 (E.D. Mich. 1966); US v. Manetti, 323 F. Supp. 683 (D. Del. 1971); US v. Shoeneman, 203 F. Supp. 840, 841-842 (D.D.C. 1962).
Discovery of recorded testimony of witnesses other than the defendant would be best sought under FED. R. CRIM. P. Rule 6(e) which provides, in pertinent part, that a court may order the disclosure of maters before a grand jury “preliminary to or in connection with a judicial proceeding.” Thus it would appear from the language of the rule that the disclosure may be compelled prior to trial.
In Dennis v. US, 384 US 855, 868 (1966), the Supreme Court made clear that relevant Grand Jury testimony should be disclosed to the defendant, noting “…the growing realization that disclosure rather than suppression of relevant materials ordinarily promotes the proper administration of criminal justice.”
“In our adversary system for determining guilt or innocence, it is rarely justifiable for the prosecution to have exclusive access to a storehouse of relevant fact exceptions to this are justifiable only by the clearest and most compelling considerations.” Dennis v. US, 384 US 855, 873 (1966).
The Supreme Court there ordered the disclosure of grand jury testimony of essential Government witnesses, where the testimony was uncorroborated, dealt with oral statements and each of the witnesses’ credibility was open to question (one having reasons for hostility toward the defendant) stating that such a showing “…goes substantially beyond the minimum required by Rule 6(e) and the prior decisions of the Court.” Dennis v. US, 384 US 855, 871 (1966).
While the Court in Dennis stated that the defendant there had established a “particularized need” to view the grand jury testimony of the witnesses against them.
See US v. Rukin, 559 F.2d 975 (5th Cir. 1977), reh. den., 564 F.2d 98, 572 F.2d 320,
vacated 99 S. Ct. 67 (1978), on remand 591 F.2d 278 (5th Cir. 1979);
US v. Haskin, 585 F.2d 904 (8th Cir. 1978).
The court made clear that such showing was not required and went “…substantially beyond the minimum required by Rule 6(e).” Dennis v. US, 384 US 855, 872 (1966). See also Allen v. US, 390 F.2d 476, 482 (D.C. Cir. 1968); National Diary Prod. Corp. v. US, 384 F.2d 457, 459 (8th Cir. 1967); Harris v. US, 433 F.2d 1127 (D.C. Cir. 1970) (en banc); US v. McGowan, 423 F.2d 413 (4th Cir. 1970); US v. Barson, 434 F.2d 127 (5th Cir. 1970).
Interestingly, the “particularized need” standard was recently applied to a government (I.R.S.) request for grand jury testimony. In re Grand Jury Proceedings (Miller Brewing Co.), 31 Cr.L. 2524. (5th Cir. September 3, 1982).
Accordingly, grand jury testimony should be disclosed any time the Government demonstrates no need for secrecy, Nolan v. US, 395 F.2d 283, 286 (5th Cir. 1968), and the defense shows some semblance of need. Bradley v. US, 420 F.2d 181 (D.C. Cir. 1969); Harris v. US, 433 F.2d 1127 (D.C. Cir. 1970) (requiring a reasonable probability that such testimony could have been effectively utilized by the defense). Thus, a defendant should be entitled to pre-trial disclosure of the testimony of grand jury witnesses the Government intends to call at trial. US v. Machi, 324 F. Supp. 153 (E.D. Wis. 1971). The following cases requiring grand jury testimony of witnesses after they have testified;
See Harris v. US, 433 F.2d 1127 (D.C. Cir. 1970);
Hanger v. US, 398 F.2d 91 (8th Cir. 1968), cert. den. 393 US 1119;
US v. Cullen, 305 F. Supp. 695 (E.D. Wis. 1969);
US v. McGowan, 423 F.2d 413 (4th Cir. 1970);
US v. Youngblood, 379 F.2d 265 (2d Cir. 1967);
US v. Burgio, 279 F. Supp. 843 (S.D.N.Y. 1968);
US v. Garcia, 272 F. Supp. 286 (S.D.N.Y. 1967);
See also WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL § 108 at 183.
Jencks Act, 18 U.S.C. § 3500 (noting since the 1970 amendment, provides for production of a witness’ grand jury testimony for purposes of cross-examination.)
The Defendant should be entitled to pre-trial disclosure of grand jury testimony, Allen v. US, 390 F.2d 482 (D.C. Cir. 1968); Gibson v. US, 403 F.2d 166, 169 (D.C. Cir. 1968); US v.
Tanner, 279 F. Supp. 457, 472 (N.D. Ill. 1967); US v. National Dairy Prods. Corp., 262 F. Supp. 447, 471 (W.D. Mo. 1967), rev’d in part on other grounds, 384 F.2d 457 (8th Cir. 1967).
“Unless the prosecutor represents that there is substantial doubt whether the officer will testify at trial, we see no good reason why the grand jury testimony should not be available through a pre-trial motion.” Allen v. US, 390 F.2d 476, 482 n.16 (D.C. Cir. 1968).
This is especially true where there is no demonstrable fear of danger from tampering with a witness. Allen v. US, 390 F.2d 476 (D.C. Cir. 1968). And even under such circumstances the Court has authority to issue protective orders to protect against any abuses under former Rule 16(e) and new Rule 16(d)(1); Harris v. US, 433 F.2d 1127 (D.C. Cir. 1970)(en banc); US v. Hughes, 413 F.2d 1244 (5th Cir. 1969); vacated as moot sub nom; US v. Gifford-Hill America, 90 S. Ct. 817 (1970).
In light of the length of most grand jury transcripts, anything less than pre-trial disclosure would deprive the defendant of adequate opportunity to make any meaningful use of the materials or cause lengthy delays in the trial proceedings.
Where the Government’s case depends upon oral, unrecorded statements of the defendant or co-conspirators, then any grand jury testimony regarding the substance of those statements is necessary to adequately prepare a defense, and disclosure should be required.
“[W]here the question of guilt or innocence may turn on exactly what was said, the defense is clearly entitled to all relevant aid which is reasonably available to ascertain the precise substance of the statements.” Dennis v. US, 884 U.S. 855 (1966), at 872-73.
In determining what testimony is useful for impeachment and like purposes, the Supreme Court in Dennis, held that an “in camera” inspection by the Court is not sufficient. The defendant is the only one fully apprized of defensive theories and thereby in a position to effectively evaluate the usefulness of such testimony.
“In our adversary system, it is enough for judges to judge. The determination of what may be useful to the defense can properly and effectively be made only by an advocate.” Dennis v. US, 384 U.S. 875, 875 (1966).
Rule 6(e)(2) further provides that a court may grant a defense request for disclosure “…upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.” Such disclosure has been ordered, for example, upon “…an adequate showing that the evidence before the grand jury was invalid.” US v. Laughlin, 226
- Supp. 112, 114 (D.D.C. 1964).
JENCKS ACT WITNESS STATEMENT
The Jencks Act [18 U.S.C. § 3500] provides that “no statement or report …made by a Government witness or prospective witness …shall be the subject of subpoena, discovery or inspection until said witness has testified on direct examination in the trial of the case. But then after a witness has “testified on direct examination” the Government must “produce any statement
… of the witness in the possession of the United States “which relates to the subject matter as to which the witness has testified.” 18 U.S.C. § 3500(a).
PRETRIAL DISCLOSURE NO LONGER PROHIBITED
The language of both Texas Criminal Evidence Rule 614** and Federal Rule of Criminal Procedure 26.2 provide a right to mandatory disclosure “after [the] witness has testified on direct examination.” Such disclosure is no longer limited, as was the predecessor statute, the Jencks Act [18 U.S.C. § 3500], “until [after] said witness has testified on direct examination in the trial of the case.” [emphasis supplied], 18 U.S.C. § 3500(a).
Prior decisions interpreting the Jencks Act had held that the express § 3500(a)’s express prohibition against disclosing witness’ statements “until said witness has testified on direct …in the trial of the case,” precluded pretrial disclosure of such statements.
US v. Carter, 621 F.2d 238, 240 (6th Cir. 1980);
US v. Jones, 612 F.2d 453, 455 (9th Cir. 1973);
US v. Campagnerolo, 592 F.2d 852, 858 (5th Cir. 1979).
Texas cases, as well held that Gaskin and Zander’s production requirements did not apply to pre-trial hearings.
Coleman v. State, 651 SW.2d 846, 850 (Tex. – Tyler, 1983);
Hoffman v. State, 514 SW.2d 248 (Tex.Cr.App. 1974) (holding no right to disclosure prior to cross-examination).
Since Rule 26.2 has no such language precluding disclosure of witness statements prior to trial, courts have applied Rule 26.2 to provide for pretrial discovery of witness’ statement at pretrial hearings, even where the statement was made by one other than the testifying witness and such production of prosecution witness’ statements has even been required at preliminary hearings and bail detention hearings.
US v. Musgrave, No. SA-80-CR-70 (W.D. Tex., July 22, 1985);
“This Court believes that the reports read by Special Agent Allen at the preliminary hearing on June 17, 1985, qualify as ‘statements’ within the meaning of Rule 26.2. Although the reports were prepared by another case agent, Special Agent Allen relied upon those reports to provide various factual information. His reliance on the reports indicates his belief that the reports were accurate and thus this Court is of the opinion that his reliance on the reports manifests his adoption of the matters set forth therein. Consequently, this Court is of the opinion that Allen adopted the information contained in the reports as his own and thus that the reports constitute ‘statements’ within the meaning of Rule 26.2 and are discoverable by the Defendant to the extent that the reports are relevant to Special Agent Allen’s testimony.
The Government claims that Rule 12(i) of the Federal Rules of Criminal Procedure limits the application of Rule 26.2 to suppression hearings. This Court does not agree. While Rule 12(i) provides that Rule 26.2 shall apply at suppression hearings, it contains no other language that would appear to limit the Rule’s application strictly to hearings arising in connection with a motion to suppress . . . .
Rule 26.2 contains no indication that the rule is to apply only at suppression hearings or at trial. Compare Rule26.2, Federal Rules of Criminal Procedure with 18 U.S.C. § 3500. Consequently, this Court believes that Rule 26.2 applies to the proceeding at issue and thus believes that the statements read by Special Agent Allen should have been disclosed to the Defendant insofar as they were relevant to his testimony.”
Courts have held as well that statements used by a witness to refresh his or her recollection at a pretrial “hearing’ may be disclosed under Rule 613 of the Federal Rules as well.
US v. Salsedo, 477 F. Supp. 1235 (E.D. Ca. 1979);
US v. Wallace, 848 F.2d 1464 (9th Cir. 1988)(notes adopted by witness testifying at grand jury should have been produced by government);
US v. Musgrave, No. SA-85-CR-132 (W.D. Tex. 1986).
“In any event, Agent Massey admittedly used this document to refresh his recollection on the stand at the detention hearing before the Magistrate. And several commentators have noted that, ‘after the effective date of Rule 26.2 [December 1, 1980] . . .[S]tatements used for refreshing recollection at hearings prior to trial . . . will be subject to production’ pursuant to Rule 612 of the Federal Rules of Evidence. 3 Weinstein’s_Evidence, § 612 at 612-26. This should be especially true where, as here, a presumptively innocent citizen is ordered detained before trial without bail, based upon the ex parte receipt of documentary evidence, without affording him the opportunity to review or rebut same.” US v. Musgrave, No. SA-85- CR-132 (W.D. Tex. 1986).
Commentator’s have noted that the language of the Jencks Act was amended by Rule 26.2 “after long and careful consideration by the Advisory Committee, the Supreme Court and the Congress.” 3 Weinstein’s Evidence ¶612 at 612-24.
“As a general rule, the enactment of revisions and codes manifestly designed to embrace an entire subject of legislation operates to repeal former acts dealing with the same subject, although there is no repealing clause to that effect.” 73 Am. Jur. 2d § 411; See also 3 Weinstein’s Evidence, ¶ at 612-24.
Here, according to the enabling statute “all laws in conflict with such rules [of criminal procedure] shall be of no further force or effect after such rules have taken effect.” 18 U.S.C. § 3737. Accordingly, the Jencks Acts’ 1970 prohibition against pretrial disclosure of witnesses statements, being in conflict with the recent enactment of Rule 26.2, has no force or effect.
As one of the leading commentators has noted, while the Jencks Act was not repealed with the enactment of the all-encompassing Rule 26.2, “it should be deemed repealed.” 3 Weinstein’s Evidence ¶612 at 612-25.
AT VERY LEAST CONTINUANCE MAY BE REQUIRED
Even under the Federal Jencks Act, courts have held that a continuance may be required to study Jencks material and adequately prepare cross-examination, even if same is provided prior to trial.
US v. Holmes, 722 F.2d 37, 40-41 (4th Cir. 1983)
“Here it is clear that defendant’s were not afforded a reasonable opportunity to examine and digest the mass of material furnished them on the Sunday before the Monday that the trial began…. It was therefore an abuse of discretion on the part of the district court to deny a reasonable delay in the progress of the trial to permit counsel to complete their studies and preparation.”
See also US v. Wables, 731 F.2d 440 (7th Cir. 1984)
Other courts have indicated that policy considerations such as judicial economy warrant encouraging early disclosure of Jencks statements. This is obviously a needlessly time consuming process which could be avoided by early disclosure.
US v. Percevault, 490 F.2d 126, 132 (2d Cir. 1974);
US v. Izzi, 613 F.2d 205, 212 (1st Cir. 1980).
Contra US v. Algil, 667 F.2d 569 (6th Cir. 1982) (indicating approval of early release of Jencks material, but refusing to require same over prosecution’s objection);
US v. Thomas, 609 F.Supp. 1048 (D.N.C. 1985) (noting courts may not compel disclosure of government witness’ Jencks statements until after witness testifies on direct at trial);
US v. Lowenberg, 853 F.2d 295 (5th Cir. 1988) (noting delivery of Jencks material on eve of trial did not constitute reversible error).
US v. Percevault, 490 F.2d 126, 132 (2d Cir. 1983)
“[W]e note that in most criminal cases, pretrial disclosure will resound to the benefit of all parties, counsel and the court. Indeed, sound trial management would seem to dictate that Jencks Act material should e transmitted prior to trial, especially in complex cases, so that those abhorrent lengthy pauses at trial to examine documents can be avoided We suggest that the district judge may find the pretrial conference, FED. R. CRIM. P. 17.1, a useful forum for establishing a timetable for discovery and for reaching agreements the scope of disclosure. Particularly in multiple defendant cases, the district judge may solicit broad disclosure to assist him in disposing of motions for severance or in detecting inadmissible confessions under Bruton v. US, 391 US 123, 88 S.Ct. 1620, 20 F>Ed.2d 476 (1968). Pretrial discovery should be approached with a spirit of cooperation among court and counsel in order to prevent those burdensome trial recesses and also, we should emphasize to protect the government against post-conviction claims of prejudicial surprise, see US v. Baum, 482 F.2d 1325, 1331-32 (2d Cir. 1973), or claims of suppression of material and favorable evidence, see Brady v. Maryland, 373 US 83, 83 S.Ct. 1194, 10L.Ed.2d 215, (1963).”
OR AN IN CAMERA HEARING
Where a question arises as to whether a government agent’s investigative report constitutes a Jencks Act Statement, the trial court must conduct an in camera hearing to determine whether the report relates to the subject matter of the agent’s trial testimony. US v. Welch, 810 F.2d 485 (5th Cir. 1987); Bond v. Procunier, 780 F.2d 461 (4th Cir. 1986).
See also US v. Rivera Pedin, 861 F.2d 1522 (11th Cir. 1988)(noting reversal required where trial court failed to conduct an in camera hearing).
JENCK’S ACT STATEMENT LIMITATION
Statements written by a prosecutor and not adopted by defendant were not seen to be within the act’s scope. US v. Valera, 845 F.2d 923 (11th Cir. 1988). Another statement was not in verbatim form. Id. Also, “statements made by a witness and summarized by a third person can be Jencks material but only if the witness has signed or otherwise adopted and approved them.” US
- Newman, 849 F.2d 156 (5th Cir. 1988). Additionally, prosecutor’s notes of discussions with government witness not found to be “statements” since not signed, written, or adopted by witness. US v. O’Malley, 796 F.2d 891 (C.A. Ill. 1986).