New Standards for Brady and Giglio Disclosures

New USAM Section 9-5.001

Brady holds that prosecutors are required under the Constitution to disclose exculpatory evidence that is material to guilt. Giglio extended the Constitutional disclosure requirements to material witness impeachment evidence. Under Brady, Giglio, and their progeny, the materiality limitation means that prosecutors are required to disclose only admissible evidence that, if used effectively, would create the reasonable probability of an acquittal. United States v. Bagley, 475 U.S. 667, 676 (1985).

Until October 2006, the USAM did not address a prosecutor's duty to disclose exculpatory evidence under Brady or Giglio, except as to impeachment evidence relating to law enforcement witnesses. Now, the new ' 9-5001 imposes obligations on prosecutors that exceed what is required by the case law in several respects. See www.usdoj.gov/usao/ eousa/foia_reading_room/usam/title9/5mcrm.htm. Under ' 9-5.001, prosecutors must disclose:

• information that is inconsistent with any element of any crime charged against the defendant or that establishes a recognized affirmative defense, regardless of whether the prosecutor believes such information will make the difference between conviction and acquittal for a charged crime;
• information that either casts a substantial doubt upon the accuracy of any evidence ' including but not limited to witness testimony ' the prosecutor intends to rely on to prove an element of any crime charged ' regardless of whether it is likely to make the difference between conviction and acquittal for a charged crime;
• information that meets the above standards, 'regardless of whether the information subject to disclosure would itself constitute admissible evidence;' and
• information that when considered cumulatively requires disclosure, even when the information might not require disclosure when considered separately.

The policy instructs prosecutors to distinguish these required disclosures from information 'not subject to disclosure' because it is 'irrelevant or not significantly probative of the issues before the court.'

Section 9-5.001 also addresses the timing of disclosure. The policy requires exculpatory information to be disclosed 'reasonably promptly after it is discovered,' unless national security interests require a delay The policy states that impeachment information 'will typically be disclosed at a reasonable time before trial to allow the trial to proceed efficiently,' except when national security or witness security issues justify delay. If a prosecutor believes that national security concerns justify the delayed disclosure of exculpatory or impeachment information, or that witness security issues require the delayed disclosure of impeachment information, she must obtain supervisory approval. 'Upon such approval, notice must be provided to the defendant of the time and manner by which disclosure of the exculpatory or impeachment information will be made.'

The new policy requires prosecutors to seek all exculpatory and impeachment information from all members of the prosecution team. Members of the prosecution team include federal, state, and local law enforcement officers and other government officials participating in the investigation of the criminal case against the defendant.

While the USAM policy acknowledges that materiality is sometimes difficult to assess and encourages prosecutors to take a broad view of materiality, it still gives prosecutors discretion to make many of the decisions that might trigger disclosure, such as whether the information is 'inconsistent with any element of any crime charged,' 'not significantly probative of the issues before the court,' or 'casts a substantial doubt on the accuracy of any evidence.' The government alone decides whether disclosure should be delayed because of witness security or national security issues. Moreover, the USAM policy explicitly states that, while it is binding on prosecutors, it does not create a general right of discovery in criminal cases nor provide defendants with any additional rights or remedies in court.

Proposed Amendment to Rule 16

The Advisory Committee considered Section 9-5.001 and decided that it did not go far enough. Instead, the Committee proposed to amend the Rules of Criminal Procedure by adding Rule 16(a)(1)(H):

Exculpatory or Impeaching Information. Upon a defendant's request, the government must make available all information that is known to the attorney for the government or agents of law enforcement involved in the investigation of the case that is either exculpatory or impeaching. The court may not order disclosure of impeachment information earlier than 14 days before trial. [Text at: www.us courts.gov/rules/Agenda%20Books/2007-06-Standing-Agenda.pdf.]

The proposed rule exceeds the requirements of USAM ' 9-5.001 in several respects. First, it would completely eliminate any materiality requirement. While the USAM allows a prosecutor to decline to disclose exculpatory information on the ground that it is 'not significantly probative of the issues before the court,' the proposed rule would require disclosure of all information that 'is either exculpatory or impeaching,' without, as the proposed Committee note states, any 'further speculation as to whether this information will ultimately be material to guilt.'

Second, the proposed rule makes clear that the required disclosures include all information that is 'known' to the prosecution team. USAM ' 9-5.001 is unclear whether it applies to all 'known' information or only to information that it is in the team's possession. The proposed rule is broader and would require the government to identify exculpatory information known to the prosecution team but held by someone outside, such as a state regulator.

Third, the proposed rule would be enforceable by a judge, who could evaluate and overrule the prosecutor's determination of what must be disclosed. The significance of this difference is huge.

Fourth, the inclusion of this disclosure requirement in Rule 16 would significantly enhance a defendant's chance of success on appeal when exculpatory information is not properly disclosed. Without the rule, an appealing defendant has the burden of showing some level of prejudice, which depends on the precise nature of information at issue. In contrast, when a defendant appeals a violation of the Rules of Criminal Procedure, the burden is on the government to demonstrate that any error raised in a timely fashion was harmless. See United States v. Vonn, 535 U.S. 55, 62 (2002).

Conclusion

Given the obvious advantages of the proposed amendment to Rule 16, the Standing Committee should publish and adopt it. There is no reason to let the prosecutor alone decide whether to disclose exculpatory and impeaching information. Involving the trial courts in such determinations will enhance both actual fairness and the appearance of fairness in the criminal-justice system.

Until the amendment to Rule 16 is adopted, defense counsel should become familiar with USAM ' 9-5.001 and be prepared in pretrial discovery to hold the prosecutor to the requirements of the U.S. Attorneys' Manual. The Manual now imposes substantial obligations on the prosecutor to disclose exculpatory and impeaching information, above and beyond the requirements of existing case law.

Robert W. Kent, Jr. ([email protected]) is a partner and Keenan J Saulter ([email protected]) is an associate at Baker & McKenzie LLP in Chicago. They are members of the firm's Investigations and Business Crimes group, and specialize in internal investigations and white-collar criminal defense. Mr. Kent is the former Chief of the Complex Fraud Section of the U.S. Attorney's Office in Chicago.

For the past five years, the white-collar criminal-defense bar has been working to enhance the obligations of federal prosecutors to disclose exculpatory and impeaching information under Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and their progeny. In the past few months, those efforts have begun to bear significant fruit.

In 2004, after a study by the American College of Trial Lawyers showed that the current system was not working, the Advisory Committee on Federal Rules of Criminal Procedure began to consider an amendment to Rule 16 that would codify and enhance the government's disclosure obligations. At first, the Department of Justice (DOJ) argued that no changes were necessary. As it became clear that the Committee was seriously considering such an amendment, the DOJ changed its position and, in a preemptive strike, issued in October 2006 a new section, ' 9-5.001, of the U.S. Attorneys' Manual ('USAM') that increased the obligations of federal prosecutors to disclose Brady and Giglio information. Later that same month, the Committee reviewed the new USAM section and decided that it did not go far enough ' that a federal rule, enforceable by the courts, was necessary and appropriate. It therefore voted to recommend to the Committee on Rules of Practice and Procedure ('the Standing Committee') that an amendment to Rule 16 be adopted.

In June 2007, the Standing Committee met to consider the proposed amendment to Rule 16 and declined to approve the recommendation. Whether the Standing Committee will move forward is unknown. What is certain is that all criminal-defense attorneys should become familiar with the new USAM disclosure rules ' which are binding on all federal prosecutors ' and with the issues that the Standing Committee faces in connection with the proposed amendment to Rule 16.

New USAM Section 9-5.001

Brady holds that prosecutors are required under the Constitution to disclose exculpatory evidence that is material to guilt. Giglio extended the Constitutional disclosure requirements to material witness impeachment evidence. Under Brady, Giglio, and their progeny, the materiality limitation means that prosecutors are required to disclose only admissible evidence that, if used effectively, would create the reasonable probability of an acquittal. United States v. Bagley, 475 U.S. 667, 676 (1985).

Until October 2006, the USAM did not address a prosecutor's duty to disclose exculpatory evidence under Brady or Giglio, except as to impeachment evidence relating to law enforcement witnesses. Now, the new ' 9-5001 imposes obligations on prosecutors that exceed what is required by the case law in several respects. See www.usdoj.gov/usao/ eousa/foia_reading_room/usam/title9/5mcrm.htm. Under ' 9-5.001, prosecutors must disclose:

• information that is inconsistent with any element of any crime charged against the defendant or that establishes a recognized affirmative defense, regardless of whether the prosecutor believes such information will make the difference between conviction and acquittal for a charged crime;
• information that either casts a substantial doubt upon the accuracy of any evidence ' including but not limited to witness testimony ' the prosecutor intends to rely on to prove an element of any crime charged ' regardless of whether it is likely to make the difference between conviction and acquittal for a charged crime;
• information that meets the above standards, 'regardless of whether the information subject to disclosure would itself constitute admissible evidence;' and
• information that when considered cumulatively requires disclosure, even when the information might not require disclosure when considered separately.

The policy instructs prosecutors to distinguish these required disclosures from information 'not subject to disclosure' because it is 'irrelevant or not significantly probative of the issues before the court.'

Section 9-5.001 also addresses the timing of disclosure. The policy requires exculpatory information to be disclosed 'reasonably promptly after it is discovered,' unless national security interests require a delay The policy states that impeachment information 'will typically be disclosed at a reasonable time before trial to allow the trial to proceed efficiently,' except when national security or witness security issues justify delay. If a prosecutor believes that national security concerns justify the delayed disclosure of exculpatory or impeachment information, or that witness security issues require the delayed disclosure of impeachment information, she must obtain supervisory approval. 'Upon such approval, notice must be provided to the defendant of the time and manner by which disclosure of the exculpatory or impeachment information will be made.'

The new policy requires prosecutors to seek all exculpatory and impeachment information from all members of the prosecution team. Members of the prosecution team include federal, state, and local law enforcement officers and other government officials participating in the investigation of the criminal case against the defendant.

While the USAM policy acknowledges that materiality is sometimes difficult to assess and encourages prosecutors to take a broad view of materiality, it still gives prosecutors discretion to make many of the decisions that might trigger disclosure, such as whether the information is 'inconsistent with any element of any crime charged,' 'not significantly probative of the issues before the court,' or 'casts a substantial doubt on the accuracy of any evidence.' The government alone decides whether disclosure should be delayed because of witness security or national security issues. Moreover, the USAM policy explicitly states that, while it is binding on prosecutors, it does not create a general right of discovery in criminal cases nor provide defendants with any additional rights or remedies in court.

Proposed Amendment to Rule 16

The Advisory Committee considered Section 9-5.001 and decided that it did not go far enough. Instead, the Committee proposed to amend the Rules of Criminal Procedure by adding Rule 16(a)(1)(H):

Exculpatory or Impeaching Information. Upon a defendant's request, the government must make available all information that is known to the attorney for the government or agents of law enforcement involved in the investigation of the case that is either exculpatory or impeaching. The court may not order disclosure of impeachment information earlier than 14 days before trial. [Text at: www.us courts.gov/rules/Agenda%20Books/2007-06-Standing-Agenda.pdf.]

The proposed rule exceeds the requirements of USAM ' 9-5.001 in several respects. First, it would completely eliminate any materiality requirement. While the USAM allows a prosecutor to decline to disclose exculpatory information on the ground that it is 'not significantly probative of the issues before the court,' the proposed rule would require disclosure of all information that 'is either exculpatory or impeaching,' without, as the proposed Committee note states, any 'further speculation as to whether this information will ultimately be material to guilt.'

Second, the proposed rule makes clear that the required disclosures include all information that is 'known' to the prosecution team. USAM ' 9-5.001 is unclear whether it applies to all 'known' information or only to information that it is in the team's possession. The proposed rule is broader and would require the government to identify exculpatory information known to the prosecution team but held by someone outside, such as a state regulator.

Third, the proposed rule would be enforceable by a judge, who could evaluate and overrule the prosecutor's determination of what must be disclosed. The significance of this difference is huge.

Fourth, the inclusion of this disclosure requirement in Rule 16 would significantly enhance a defendant's chance of success on appeal when exculpatory information is not properly disclosed. Without the rule, an appealing defendant has the burden of showing some level of prejudice, which depends on the precise nature of information at issue. In contrast, when a defendant appeals a violation of the Rules of Criminal Procedure, the burden is on the government to demonstrate that any error raised in a timely fashion was harmless. See United States v. Vonn, 535 U.S. 55, 62 (2002).

Conclusion

Given the obvious advantages of the proposed amendment to Rule 16, the Standing Committee should publish and adopt it. There is no reason to let the prosecutor alone decide whether to disclose exculpatory and impeaching information. Involving the trial courts in such determinations will enhance both actual fairness and the appearance of fairness in the criminal-justice system.

Until the amendment to Rule 16 is adopted, defense counsel should become familiar with USAM ' 9-5.001 and be prepared in pretrial discovery to hold the prosecutor to the requirements of the U.S. Attorneys' Manual. The Manual now imposes substantial obligations on the prosecutor to disclose exculpatory and impeaching information, above and beyond the requirements of existing case law.

Robert W. Kent, Jr. ([email protected]) is a partner and Keenan J Saulter ([email protected]) is an associate at Baker & McKenzie LLP in Chicago. They are members of the firm's Investigations and Business Crimes group, and specialize in internal investigations and white-collar criminal defense. Mr. Kent is the former Chief of the Complex Fraud Section of the U.S. Attorney's Office in Chicago.