Justice Department Issues Guidance on Discovery

Beyond these constitutional requirements, the Federal Rules of Criminal Procedure delineate the government's discovery duties. The government must disclose, upon the defendant's request, any statement made by the defendant; the defendant's prior criminal record; documents and objects material to the defense that the government intends to use at trial and items belonging to the defendant; certain reports and examinations; summaries of expert witness testimony; and statements by government witnesses relating to trial testimony. Rules 16 and 26.2, Fed. R. Crim. P.

In addition, the Jencks Act, 18 U.S.C. ' 3500, sets forth the procedure for turning over the statements of testifying witnesses. After a government witness testifies, the court “shall, on motion of the defendant, order the United States to produce any statement” in the government's possession relating to the testimony. If the entire statement is not relevant to the testimony, then the court must review the statement in camera and excise it. Should the government not comply with the court order, the court must strike the witness's testimony.

The U.S. Attorneys' Manual (USAM) encourages prosecutors to go beyond the minimum constitutional and statutory obligations and disclose any relevant exculpatory information reasonably promptly after the government discovers it and to disclose impeachment information at a reasonable time before trial. USAM ' 9-5.001.D.

The Ted Stevens Case

In October 2008, a federal jury found former Senator Ted Stevens guilty of lying on a Senate disclosure form in order to conceal gifts from an oil executive and other friends. Amid heavy publicity, Stevens narrowly lost his bid for re-election to the Senate. Immediately following the guilty verdict, Stevens' attorneys moved to dismiss the case or, in the alternative, for a new trial. Meanwhile, an FBI agent filed a whistleblower complaint claiming that prosecutors improperly had withheld exculpatory evidence contained in FBI reports contradicting the testimony of the government's star witness, had redacted FBI reports to mirror discovery disclosed to the defense, and had sought to relocate a government witness subpoenaed by the defense. In April 2009, the DOJ moved to set aside the conviction. Upon granting the motion, Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia said: “In nearly 25 years on the bench, I've never seen anything approaching the mishandling and misconduct that I've seen in this case.”

Judge Sullivan then took the extraordinary step of appointing an attorney to investigate whether the prosecution team should be prosecuted for criminal contempt. At the same time, the DOJ began an internal review of its criminal discovery policies, practices, and training.

Justice Department Guidance

On Jan. 4, 2010, Deputy Attorney General David Ogden issued memoranda to all U.S. Attorneys' Offices and other litigating components of the Justice Department that discussed the DOJ's findings from its internal review, established new guidance for prosecutors, and instructed individual offices to develop local discovery policies. Ogden noted that a survey had “demonstrated that incidents of discovery failures are rare in comparison to the number of cases prosecuted.” Still, Ogden conceded that “even isolated lapses can have a disproportionate effect on public and judicial confidence in prosecutors and the criminal justice system,” beyond the consequences in individual cases.

This new DOJ guidance document establishes “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.” It describes the considerations federal prosecutors must take into account during the four-step discovery process: 1) gathering and reviewing discoverable information; 2) conducting the review; 3) making the disclosures; and 4) recording the entire process.

The guidance requires the prosecutor, at the outset of gathering and reviewing discoverable information, to identify the members of the prosecution team. This is not as easy as it sounds because often various federal and state agencies are involved in the investigation or parallel proceedings. To that end, prosecutors are “encouraged to err on the side of inclusiveness” after considering various factors, such as shared resources, degree of participation, the amount of information held by or revealed to the agency, and the degree that the interests in parallel proceedings coincide or diverge.

The prosecutor must then gather and review “all potentially discoverable material within the custody or control” of the identified team members. These materials include the entire investigative agency file, the files of lay witnesses and government agents who might testify, investigation files of parallel proceedings, substantive case-related communications between and among the prosecution team, witness interview notes, and agent notes.

Then, the prosecutor must review the gathered material to determine what information is discoverable. While, ideally, the prosecutor would personally review all of the material, the Department recognizes that “such review is not always feasible or necessary.” The prosecutor is permitted to “delegate the process and set forth criteria for identifying potentially discoverable information,” but “should not delegate the disclosure determination itself.” Thus, the prosecutor is ultimately responsible for the review and cannot blame discovery violations on law enforcement agents or anyone else. Prosecutors are again encouraged to err on the side of inclusiveness at this stage in order “to avoid the possibility that a well-intentioned review process nonetheless fails to identify material discoverable evidence.”

Next, the prosecutor must determine what must be disclosed pursuant to the Federal Rules of Criminal Procedure, the Jencks Act, Brady, and Giglio. After considering various countervailing concerns, the prosecutor is encouraged to provide broader and more comprehensive disclosure than these minimum requirements in order to promote truth seeking and speedy resolution of the case. Nevertheless, the guidance provides a relatively broad list of countervailing concerns: confidentiality and privilege issues, protection of victims and witnesses, privacy interests of witnesses, national security, investigative-agency concerns, and “other strategic considerations that enhance the likelihood of achieving a just result in a particular case.”

The DOJ is vague when providing guidance on the timing of disclosures, adopting time frames such as “reasonably promptly after discovery” for exculpatory information and a “reasonable time before trial” for impeachment information. Prosecutors are also left with broad discretion regarding the form of the discoverable information provided to the defense.

Finally, prosecutors are encouraged to keep diligent records of when and how information is disclosed or otherwise made available to the defense. Such records have the potential to reduce discovery disputes both in the current case and in future petitions for post-conviction relief.

Separately, the DOJ addressed local-office discovery policies. Recognizing that “local practices and judicial expectations vary among districts,” the Department directed that all U.S. Attorney's Offices and each of the DOJ's other litigating components handling criminal matters develop a discovery policy reflecting circuit and district precedent, rules, and practice. In addition, these offices must appoint a discovery coordinator to provide annual training, serve as on-site discovery advisors, and develop discovery resources and case management programs. To oversee this process, the DOJ created the new office of National Coordinator of Criminal Discovery Initiatives and appointed Andrew Goldsmith, from the DOJ's Environmental Crimes Section, as the first Coordinator.

Conclusion

The DOJ's guidance document and its other measures are important steps to ensure that federal prosecutors are abiding by their discovery obligations and to assure the public that justice is being served. As with most policies, its success will depend upon the compliance of prosecutors and on their supervisors' ability to hold them accountable. Time will tell whether the goal of strict discovery compliance is feasible despite the ever-increasing volume of federal cases.

Although prosecutors retain a high degree of discretion in deciding what, when, and how to disclose discoverable material, Deputy Attorney General Ogden made very clear that they will be held accountable for lapses in discretion. Thus, in close cases, prosecutors may feel more comfortable providing broad discovery beyond the minimum requirements. Such expansive discovery is encouraged by the policy described in the U.S. Attorneys' Manual, as well as Rule 3.8(d) of the ABA's Model Rules for Professional Conduct.

Jonathan A. Vogel (jvogel@mcguire woods.com), a former federal pros- ecutor and counsel to an Assistant Attorney General, is a partner with McGuireWoods LLP. Elizabeth M.Z. Timmermans (eztimmermans@mcguire woods.com) is an associate. Both work in the Firm's Charlotte, NC, office as part of the Government, Regulatory & Criminal Investigations department.

In the wake of a high-profile case that highlighted discovery abuses by federal prosecutors, the Department of Justice (DOJ) issued guidance regarding the government's discovery obligations on Jan. 4, 2010.

Federal Discovery Law

In Brady v. Maryland , 373 U.S. 83 (1963), the Supreme Court held that suppression by prosecutors of “evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” The Court later extended this constitutional duty of disclosure to include exculpatory information regarding the credibility of government witnesses. Giglio v. United States , 405 U.S. 150 (1972).

Beyond these constitutional requirements, the Federal Rules of Criminal Procedure delineate the government's discovery duties. The government must disclose, upon the defendant's request, any statement made by the defendant; the defendant's prior criminal record; documents and objects material to the defense that the government intends to use at trial and items belonging to the defendant; certain reports and examinations; summaries of expert witness testimony; and statements by government witnesses relating to trial testimony. Rules 16 and 26.2, Fed. R. Crim. P.

In addition, the Jencks Act, 18 U.S.C. ' 3500, sets forth the procedure for turning over the statements of testifying witnesses. After a government witness testifies, the court “shall, on motion of the defendant, order the United States to produce any statement” in the government's possession relating to the testimony. If the entire statement is not relevant to the testimony, then the court must review the statement in camera and excise it. Should the government not comply with the court order, the court must strike the witness's testimony.

The U.S. Attorneys' Manual (USAM) encourages prosecutors to go beyond the minimum constitutional and statutory obligations and disclose any relevant exculpatory information reasonably promptly after the government discovers it and to disclose impeachment information at a reasonable time before trial. USAM ' 9-5.001.D.

The Ted Stevens Case

In October 2008, a federal jury found former Senator Ted Stevens guilty of lying on a Senate disclosure form in order to conceal gifts from an oil executive and other friends. Amid heavy publicity, Stevens narrowly lost his bid for re-election to the Senate. Immediately following the guilty verdict, Stevens' attorneys moved to dismiss the case or, in the alternative, for a new trial. Meanwhile, an FBI agent filed a whistleblower complaint claiming that prosecutors improperly had withheld exculpatory evidence contained in FBI reports contradicting the testimony of the government's star witness, had redacted FBI reports to mirror discovery disclosed to the defense, and had sought to relocate a government witness subpoenaed by the defense. In April 2009, the DOJ moved to set aside the conviction. Upon granting the motion, Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia said: “In nearly 25 years on the bench, I've never seen anything approaching the mishandling and misconduct that I've seen in this case.”

Judge Sullivan then took the extraordinary step of appointing an attorney to investigate whether the prosecution team should be prosecuted for criminal contempt. At the same time, the DOJ began an internal review of its criminal discovery policies, practices, and training.

Justice Department Guidance

On Jan. 4, 2010, Deputy Attorney General David Ogden issued memoranda to all U.S. Attorneys' Offices and other litigating components of the Justice Department that discussed the DOJ's findings from its internal review, established new guidance for prosecutors, and instructed individual offices to develop local discovery policies. Ogden noted that a survey had “demonstrated that incidents of discovery failures are rare in comparison to the number of cases prosecuted.” Still, Ogden conceded that “even isolated lapses can have a disproportionate effect on public and judicial confidence in prosecutors and the criminal justice system,” beyond the consequences in individual cases.

This new DOJ guidance document establishes “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.” It describes the considerations federal prosecutors must take into account during the four-step discovery process: 1) gathering and reviewing discoverable information; 2) conducting the review; 3) making the disclosures; and 4) recording the entire process.

The guidance requires the prosecutor, at the outset of gathering and reviewing discoverable information, to identify the members of the prosecution team. This is not as easy as it sounds because often various federal and state agencies are involved in the investigation or parallel proceedings. To that end, prosecutors are “encouraged to err on the side of inclusiveness” after considering various factors, such as shared resources, degree of participation, the amount of information held by or revealed to the agency, and the degree that the interests in parallel proceedings coincide or diverge.

The prosecutor must then gather and review “all potentially discoverable material within the custody or control” of the identified team members. These materials include the entire investigative agency file, the files of lay witnesses and government agents who might testify, investigation files of parallel proceedings, substantive case-related communications between and among the prosecution team, witness interview notes, and agent notes.

Then, the prosecutor must review the gathered material to determine what information is discoverable. While, ideally, the prosecutor would personally review all of the material, the Department recognizes that “such review is not always feasible or necessary.” The prosecutor is permitted to “delegate the process and set forth criteria for identifying potentially discoverable information,” but “should not delegate the disclosure determination itself.” Thus, the prosecutor is ultimately responsible for the review and cannot blame discovery violations on law enforcement agents or anyone else. Prosecutors are again encouraged to err on the side of inclusiveness at this stage in order “to avoid the possibility that a well-intentioned review process nonetheless fails to identify material discoverable evidence.”

Next, the prosecutor must determine what must be disclosed pursuant to the Federal Rules of Criminal Procedure, the Jencks Act, Brady, and Giglio. After considering various countervailing concerns, the prosecutor is encouraged to provide broader and more comprehensive disclosure than these minimum requirements in order to promote truth seeking and speedy resolution of the case. Nevertheless, the guidance provides a relatively broad list of countervailing concerns: confidentiality and privilege issues, protection of victims and witnesses, privacy interests of witnesses, national security, investigative-agency concerns, and “other strategic considerations that enhance the likelihood of achieving a just result in a particular case.”

The DOJ is vague when providing guidance on the timing of disclosures, adopting time frames such as “reasonably promptly after discovery” for exculpatory information and a “reasonable time before trial” for impeachment information. Prosecutors are also left with broad discretion regarding the form of the discoverable information provided to the defense.

Finally, prosecutors are encouraged to keep diligent records of when and how information is disclosed or otherwise made available to the defense. Such records have the potential to reduce discovery disputes both in the current case and in future petitions for post-conviction relief.

Separately, the DOJ addressed local-office discovery policies. Recognizing that “local practices and judicial expectations vary among districts,” the Department directed that all U.S. Attorney's Offices and each of the DOJ's other litigating components handling criminal matters develop a discovery policy reflecting circuit and district precedent, rules, and practice. In addition, these offices must appoint a discovery coordinator to provide annual training, serve as on-site discovery advisors, and develop discovery resources and case management programs. To oversee this process, the DOJ created the new office of National Coordinator of Criminal Discovery Initiatives and appointed Andrew Goldsmith, from the DOJ's Environmental Crimes Section, as the first Coordinator.

Conclusion

The DOJ's guidance document and its other measures are important steps to ensure that federal prosecutors are abiding by their discovery obligations and to assure the public that justice is being served. As with most policies, its success will depend upon the compliance of prosecutors and on their supervisors' ability to hold them accountable. Time will tell whether the goal of strict discovery compliance is feasible despite the ever-increasing volume of federal cases.

Although prosecutors retain a high degree of discretion in deciding what, when, and how to disclose discoverable material, Deputy Attorney General Ogden made very clear that they will be held accountable for lapses in discretion. Thus, in close cases, prosecutors may feel more comfortable providing broad discovery beyond the minimum requirements. Such expansive discovery is encouraged by the policy described in the U.S. Attorneys' Manual, as well as Rule 3.8(d) of the ABA's Model Rules for Professional Conduct.

Jonathan A. Vogel (jvogel@mcguire woods.com), a former federal pros- ecutor and counsel to an Assistant Attorney General, is a partner with McGuireWoods LLP. Elizabeth M.Z. Timmermans (eztimmermans@mcguire woods.com) is an associate. Both work in the Firm's Charlotte, NC, office as part of the Government, Regulatory & Criminal Investigations department.