On Jan. 4, 2010, the U.S. Department of Justice (DOJ) issued a Guidance for Prosecutors Regarding Criminal Discovery (“Guidance”) and announced related organizational and training measures. These steps were widely seen as a response to several recent embarrassing episodes in which DOJ prosecutors failed to disclose exculpatory evidence to white collar criminal defendants in high profile cases. The Guidance is codified at Section 165 of the DOJ’s Criminal Resource Manual, which can be accessed via the internet at http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00165.htm.

The Criminal Resource Manual is part of the U.S. Attorney’s Manual. Although provisions in the U.S. Attorney’s Manual do not have the force of law and do not create rights, they must be followed by federal prosecutors, and failure to do so may result in disciplinary proceedings. Moreover, many of the policies in the new Guidance relate to constitutional and statutory mandates that clearly do have the force of law.

Failure of federal prosecutors to turn over exculpatory and impeaching information to defendants is a growing crisis in the criminal justice system. The Guidance and related organizational and training measures should help to stem that crisis, but do not go far enough.

According to the DOJ, “the guidance is intended to establish a methodical approach to consideration of discovery obligations that prosecutors should follow in every case to avoid lapses that can result in consequences adverse to the Department’s pursuit of Justice.” By explicitly ordering federal prosecutors to consult the Guidance “in every case,” the DOJ is forcing even the most obtuse Assistant U.S. Attorneys to carefully and routinely consider their discovery obligations. In the future, a rogue prosecutor who suppresses clearly exculpatory information will have to explain why he or she ignored both the substance of the law and the DOJ procedures established to insure compliance.

In addition, since prosecutors now know that a very detailed review and disclosure of potentially exculpatory information is the established DOJ norm, they will arguably be less likely to rush to indict highprofile white collar cases, before carefully considering the pros and cons of such action.

The DOJ has also directed each U.S. Attorney’s Office (and each DOJ litigating component handling criminal matters) to develop and implement, by March 31, 2010, a Discovery Policy “with which prosecutors in that office must comply.” The Discovery Policy should be consistent with the Guidance, but must take into account “controlling precedent, existing local practices, and judicial expectations.” The individual office Discovery Policy is intended to recognize local variations in discovery practices while eliminating “inconsistent discovery practices among prosecutors within the same office.” Each office’s Discovery Policy “must set forth procedures prosecutors are required to follow to obtain supervisory approval to depart from the [office’s] uniform practices in an appropriate case.” Each U.S. Attorney’s Office (and each DOJ litigating component handling criminal matters) must also name a Discovery Coordinator. These Discovery Coordinators have already been named and trained and must, in turn, train “their respective offices no less than annually” and must “serve as on-location advisors with respect to discovery obligations.”

The detailed steps laid out in the Guidance for gathering, reviewing, and disclosing discoverable information put much-needed meat on DOJ’s pre-existing discovery guidelines.

The Guidance contains several welcome improvements that will clearly be pertinent to white collar investigations: (1) in cases involving parallel proceedings with regulatory agencies, the prosecutor must consider whether the agency in question is part of the “prosecution team” and therefore subject to having its files reviewed for exculpatory information; (2) the prosecutor must be granted access to and review all of a law enforcement investigatory agency’s files, including the entire confidential informant file; (3) “generally speaking, witness interviews should be memorialized by the agent” and “material variances” in a witness’s statements must be disclosed, even if the variances occur within the same interview session or in a pre-trial prep session; (4) all substantive case-related internal communications, including emails, must be preserved and reviewed; and (5) if exculpatory information is discovered, the information itself must be produced, regardless of the format in which it was maintained.

The Guidance also continues certain troubling DOJ policies. Prosecutors are still charged with determining whether exculpatory and impeaching information is material in nature and therefore subject to production. Such self-certifying procedures are inherently inappropriate, because the prosecutor becomes judge and jury of what will be provided to the defense. All potentially exculpatory and impeaching information (including variances in witness statements) should be provided to the defense as a matter of course irrespective of materiality.

The Guidance also declares that case agent notes, which are not typically part of the official file, should only be reviewed “if there is a reason to believe that the notes are materially different from the memorandum, if a written memorandum was not prepared, if the precise words used by the witness are significant, or if the witness disputes the agent’s account of the interview.” In truth, case agent notes are virtually always Jencks Act material if the agent testifies at trial, and should be provided in such situations whether or not a memorandum has been prepared. More importantly, it is the rare official memorandum of interview that is fully consistent with the case agent’s interview notes. Since such inconsistencies are the norm, prosecutorial review is in order.

In summary, the new DOJ Guidance and related measures establish important substantive and procedural mechanisms that should reduce prosecutorial suppression of favorable evidence in white collar cases. But much remains to be done. Efforts are currently underway within the Judicial Conference of the United States to amend the Federal Rules of Criminal Procedure to insure that prosecutors turn over all exculpatory and impeaching information to the defense, regardless of materiality. Such efforts should continue unabated until binding reform is achieved.