On January 4, 2010, Deputy Attorney General David W. Ogden issued a series of three memoranda, published on the website of the Department of Justice, which represented the culmination of a several-months long study of discovery practices among the United States Attorney's Offices and retraining of new discovery coordinators from each Office. The study was undertaken following a number of embarrassing episodes in which courts sanctioned Department lawyers for misconduct such as covering up exculpatory and impeachment material. The most spectacular flame-out was undoubtedly the failed prosecution of former Alaska Senator Ted Stevens, which ended in April 2009 with the court's dismissal of the indictment against him. More recently, another judge incensed over prosecutorial mishandling of evidence dismissed an indictment against several Blackwater employees charged in an Iraq shooting incident.

In the most significant and substantive of the memoranda, one entitled "Guidance for Prosecutors Regarding Criminal Discovery," the Department has enshrined in practical, specific guidelines principles which were formerly only expressed in the most general terms in the United States Attorney's Manual. To ensure that every federal prosecutor adheres to a disclosure approach which exceeds the bare constitutional requirements of Brady and Giglio and the literal requirements of FRCP 16 and 26.2 and 18 U.S.C. § 3500, the new Guidance memorializes a number of particular obligations, including:

  • the obligation of every prosecutor to cast a broad net in searching for potential exculpatory and impeachment material. This includes reviews of the entire files of federal agents involved in a matter, including internal emails never before routinely made available to prosecutors. For testifying confidential witnesses or informants, the material to be reviewed now includes agent assessments of the witness(es) and records of payments of expenses. In 16 years as a federal prosecutor, the author can never recall having seen an internal FBI "airtel" or other internal communications regarding evidence gathering, or records of meals bought for witnesses; those are now among the materials which must be reviewed for potential discovery.
  • as to agent-witnesses, prosecutors are now directed to have "candid conversations" about potential impeachment information concerning those agents, which they are expected to divulge to the prosecutor.
  • as to non-agent witnesses, the Guidance spells out a formidable list of potential areas of impeachment information to be gathered and disclosed, including "benefits provided to witnesses," a category of conceivably enormous breadth.
  • "substantive" case-related communications between prosecutors and agents are now to be preserved for review, and include emails, notes, and memoranda. For someone used to issuing regular "to-do" lists to agents, the need to review and potentially disclose such elaborately itemized lists would have proven embarrassing on many occasions; as of January 4th, such review and potential disclosure is the new normal.
  • while trial preparation sessions with witnesses are exempt. all other witness interviews should now be memorialized by the attending agent. This is a significant change from the practice in the District of New Jersey, where it has been routine for prosecutors themselves, and not agents, to be the only note-takers for in-office interviews, thereby depriving the putative defendant of any Jencks statements, since attorneys' notes could be argued to be attorney work product and not subject to discovery.
  • the Guidance emphasizes the importance of memorializing any variances in witnesses' statements, potentially expanding the scope of Giglio disclosures in this area, which have traditionally been meager or non-existent
  • while the Guidance does not require the prosecutor himself or herself to conduct these expansive reviews -- expressing only a preference for prosecutor review but permitting delegation to agents, paralegals, or others -- it is made clear that the prosecutor will ultimately be held accountable for the non-delegable decision to disclose or not
  • finally, while banishing the use of the term "open file" discovery because of its potential to mislead, the Guidance is plain in encouraging broad and early discovery

Of course, experience teaches that the implementation of DOJ policies, not their high-minded pronouncement, is where the rubber meets the proverbial road. But there is no doubt that the Department has now given the clearest direction to its lawyers and, at the same time, created a welcomed opportunity for defense counsel to press for greater and more timely discovery than has ever before been the case.