The guidance will be most valuable for defendants in districts where prosecutors take a narrow view of discovery and rely on a strict interpretation of the rules.

On January 4, 2010, the U.S. Department of Justice (DOJ), in a memorandum from Deputy Attorney General David W. Ogden, issued new guidance on discovery in criminal cases to all prosecutors in U.S. Attorneys’ Offices and criminal litigators at Main Justice. DOJ simultaneously issued a memorandum to all U.S. Attorneys and heads of Main Justice criminal litigation departments directing each “to develop a discovery policy that reflects circuit and district court precedent and local rules and practices.” For more information, see

The memoranda are the results of DOJ’s review of its criminal discovery policies and practices following its April 2009 decision to seek dismissal of charges against former Senator Ted Stevens after his conviction, based on discovery failures. Hoping to quiet a movement to amend Federal Rule of Criminal Procedure 16 governing discovery in criminal cases—which included a letter from the judge who presided at Stevens’ trial calling for stricter requirements—the head of DOJ’s Criminal Division announced that DOJ was pursuing a “comprehensive approach” to reform. Mike Scarcella, “DOJ Outlines Changes After Backlash Over Handling of Stevens Case,” Nat’l L.J., Oct. 19, 2009.

In introducing the new guidance, DOJ noted that “the vast majority of prosecutors are meeting their obligations.” Nevertheless, DOJ expressed concern that isolated lapses “can have a disproportionate effect on public and judicial confidence in prosecutors and the criminal justice system.” DOJ accompanied the guidance with a reminder that “‘[i]t is as much [a prosecutor’s] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one’” (quoting Berger v. United States, 295 U.S. 78, 88 (1935)).

DOJ’s new guidance is summarized below, followed by a brief discussion of the guidance.

New Criminal Discovery Guidance for Federal Prosecutors

As DOJ notes, federal prosecutors’ criminal discovery obligations are outlined in Federal Rules of Criminal Procedure 16 and 26.2, 18 U.S.C. § 3500 (known as the Jencks Act), Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). DOJ’s U.S. Attorney’s Manual also contains at § 9-5.001 its Policy Regarding Disclosure of Exculpatory and Impeachment Information.

Section 9-5.001 of the U.S. Attorney’s Manual, interpreting Federal Rules of Criminal Procedure 16 and 26.2 and the Jencks Act, requires prosecutors “to seek all exculpatory and impeachment information from all members of the prosecution team.” The new guidance suggests that the “prosecution team” should be construed broadly. It will likely include all agents and law enforcement officers in the district working on the case, including state and local officers, and possibly all officers working on a larger task force involved in the case. It also might include administrative agencies, such as the U.S. Securities and Exchange Commission or U.S. Environmental Protective Agency. DOJ explicitly leaves for another day considerations as to whether intelligence agencies such as the Central Intelligence Agency can be considered members of the “prosecution team,” an issue that will have great significance as prosecutions of certain detainees proceed in the coming years.

DOJ next instructs that “all potentially discoverable material within the custody or control of the prosecution team should be reviewed.” This includes all materials in law enforcement’s investigative files on the case; files on cooperating, testifying witnesses maintained separately; internal e-mails; and evidence collected during the investigation through searches or subpoenas. The guidance states that prosecutors “should discuss” with the investigative agency whether files in other investigations might contain discoverable information, but it does not impose an affirmative obligation to review agency-wide databases that might contain criminal history records on testifying government witnesses or information on active investigations of those witnesses.

DOJ’s guidance goes beyond describing which interview reports should be produced by instructing on the types of reports that should be created, noting that substantive witnesses’ interviews should be memorialized. DOJ adds: “Material variances in a witness’s statements should be memorialized, even if they are within the same interview, and they should be provided to the defense as Giglio information.” Prosecutors are instructed to review agents’ handwritten notes even where formal reports are generated “if the precise words used by the witness are significant,” and to pay particular attention to notes of defendants or individuals associated with corporate defendants.

DOJ makes clear that discovery determinations are to be made by prosecutors, not law enforcement agents or paralegals, and that prosecutors make the controlling decisions on how discovery is conducted. While prosecutors may delegate portions of the process to identify discoverable materials, “prosecutors should not delegate the disclosure determination itself.”

DOJ does not impose in its guidelines any timing requirements on disclosure beyond the minimums provided by rule or statute, except to require that exculpatory information be disclosed “reasonably promptly after discovery” and that prosecutors comply with the practices of their offices. DOJ encourages prosecutors to provide “broad and early discovery consistent with any countervailing considerations,” such as protecting witnesses from harassment.

Finally, DOJ instructs prosecutors to keep accurate records of disclosures.

Potential Impact

DOJ explains that its new guidance is not intended to have the force of law or create any rights, but it knows well that a defendant or judge disappointed with discovery in a particular case will be eager to cite the memoranda. The guidance nevertheless encourages discovery practices more favorable than those strictly required by existing law. Not surprisingly, however, DOJ generally avoids requiring specific procedures not strictly required or already common practice which might tie prosecutors’ hands in exceptional cases or limit defenses following mistakes.

The guidance attempts to resolve potential conflicts between prosecutors and agents, who often prefer limited discovery, by making clear that prosecutors are responsible for discovery and providing prosecutors the authority to review agencies’ files. Notably, it stops short of requiring searches of agency-wide databases for criminal information on government witnesses, including information on active investigations of government witnesses, which could lead to the identification of discoverable information. See United States v. Sanchez, No. 07 CR 149, 2009 WL 5166230, at *9 (N.D. Ill. Dec. 22, 2009) (granting a new trial for a former Chicago official because the government did not disclose information from a separate investigation of a witness, stating: “The fact that the AUSAs and the agents in the instant case were subjectively unaware of the information . . . is immaterial. As the defense points out, this information was in the possession of the prosecution team because [it was] in the ACS System on the computers of all FBI agents, including those on the prosecution team in Chicago[.]”).

The instruction that material variances in witnesses’ statements should be memorialized in formal reports will assist prosecutors opposing defense efforts to obtain handwritten notes by claiming that the reports contain only the “final” versions of witness accounts. DOJ’s guidance is consistent with the Fifth Circuit’s opinion affirming the convictions of former Enron CEO Jeffrey Skilling, finding that the government did not violate Brady by not disclosing certain witness statements appearing in undisclosed handwritten notes but not in formal reports. United States v. Skilling, 554 F.3d 529, 591 (5th Cir. 2009), cert. granted, 130 S.Ct. 393 (U.S. Oct 13, 2009) (NO. 08-1394) (“Skilling has established that there are some differences between the interview notes and the 302s. Yet none of the undisclosed statements are particularly material, and many are wholly immaterial.”). Nevertheless, defense attorneys will complain that leaving determinations of materiality to agents and prosecutors, with regard to notes and all other materials, will unfairly limit the potentially impeaching or exculpatory information that is disclosed. In that regard, the guidance might fuel defense attorneys’ battles for disclosure of agents’ handwritten notes and other items rather than stifle them.

The guidance will be most valuable for defendants in districts where prosecutors take a narrow view of discovery and rely on a strict interpretation of the rules. Peculiarly, while the guidance endeavors to eliminate inconsistency among prosecutors within the same federal district by requiring each district to issue a mandatory discovery policy, it endorses differences in policies among the districts, even though criminal discovery is driven almost entirely by statutes, rules and Supreme Court precedent applicable nationwide. DOJ explains the district-by-district approach by noting that local court rules and customs may vary, but it declines to adopt a standard that would apply across all districts. The guidance will do little to appease DOJ’s critics if the districts’ individual policies vary significantly and cases in districts with restrictive approaches are disputed because of discovery problems.

Perhaps most importantly, the guidance advances an interest well known to defense attorneys who provide compliance advice with prosecutors in mind: it offers DOJ a shield when facing sanctions for a particular individual’s negligence or willful misconduct.