UNITED STATES DEPARTMENT OF JUSTICE
United States Attorney
District of Idaho

SUBJECT:

DISCOVERY POLICY

CRIM-08
GUIDELINES AND PROCEDURES
April 12, 1996
Last Update: October 15, 2010

1. PURPOSE
The purpose of this bulletin is to establish a methodical approach to consideration of
discovery obligations that Assistants United States Attorney (AUSAs) should follow in every
case.
2. SCOPE
This information is of interest to Criminal Division Assistant United States Attorneys
(AUSAs) in the District of Idaho. It provides prospective guidance only and is not intended to
have the force of law or to create or confer any rights, privileges, or benefits. See United States
v. Caceres, 440 U.S. 741 (1979).
3. POLICY
AUSAs must thoroughly consider how to meet their discovery obligations in each case.
Federal prosecutors’ discovery obligations are generally established by Federal Rules of
Criminal Procedure 16 and 26.2, 18 U.S.C. § 3500 (the Jencks Act), Brady v, Maryland, 373
U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). In the District of Idaho, those
obligations are augmented by the district court’s Procedural Order. See Revised Criminal
Procedural Order, District of Idaho, General Order No. 242. In addition, the United States
Attorney's Manual describes the Department's policy for disclosure of exculpatory and
impeachment information and provides for broader and more comprehensive disclosure than
required by Brady and Giglio. See USAM § 9-5.001. In order to meet their discovery
obligations in each case, AUSAs must be familiar with these authorities and with the judicial
interpretations that discuss or address the application of these authorities to particular facts.

Procedural Order -- 1

 STATEMENT OF DISCOVERY PRACTICE
By following the four steps described below1 and being familiar with laws and policies
regarding discovery obligations, AUSAs are more likely to meet all legal requirements, to make
considered decisions about disclosures in a particular case, and to achieve a just result in every
case. Questions concerning an AUSA’s discovery obligations should be directed to the office
designated criminal discovery coordinator. Rules of Professional Conduct in most jurisdictions
also impose ethical obligations on AUSAs regarding discovery in criminal cases. AUSAs are
reminded to contact the Professional Responsibility Advisory Office (202-514-3365) when they
have questions about those or any other ethical responsibilities.
Step 1: Gathering and Reviewing Discoverable Information
A.

Where to Look - The Prosecution Team

AUSAs must seek all discoverable information from members of the prosecution team.
In most cases, “the prosecution team” will include the agents and law enforcement officers
within the relevant district working on the case. Many cases in this District arise out of
investigations conducted by multi-agency task forces, federal and state law enforcement agencies
or otherwise involve state regulatory agencies. To identify the prosecution team in such cases,
AUSAs should consider:
(1) whether state or local agents are working on behalf of the AUSA or are under the
AUSA's control;
(2) the extent to which state and federal governments are part of a team, are participating
in a joint investigation, or are sharing resources or information;
(3) whether the AUSA knows of or has ready access to the evidence or information in the
possession of the other state or federal agency as well as information in the files of AUSAs in
this and other districts;
(4) the degree to which information gathered by the AUSA has been shared with the
agency;
(5) the degree to which decisions have been made jointly regarding civil, criminal, or
administrative charges; and
(6) whether the agency played an active role in the prosecution, including conducting

1

Attachment “A” lists these four steps and the essential considerations within each step.
AUSAs may wish to attach this discovery checklist and use it as a guide in each case.
Procedural Order -- 2

 arrests or searches, interviewing witnesses, developing prosecutorial strategy, participating in
targeting discussions, or otherwise acting as part of the prosecution team.
Courts will generally evaluate the role of a state or local law enforcement agency on a
case-by-case basis. United States v. Fort, 472 F.3d 1106, 1119-1120 (9th Cir. 2007)(local police
reports, under Fed. R. Crim. P. 16(a)(2), created prior to federal involvement but relinquished to
federal prosecutors to support a unified prosecution for the same criminal activity that was the
subject of the local investigation are treated the same as federal agent reports).
AUSAs are encouraged to err on the side of inclusiveness when identifying the members
of the prosecution team for discovery purposes. Carefully considered efforts to locate
discoverable information are more likely to avoid future litigation over Brady and Giglio issues
and avoid surprises at trial.
B.

What to Review

To ensure that all discovery is disclosed on a timely basis, generally all potentially
discoverable material within the custody or control of the prosecution team should be reviewed.
The review process should cover the following areas:
1. The Investigative Agency's Files: With respect to Department of Justice law
enforcement agencies, with limited exceptions,2 the AUSA should be granted access to the
substantive case file and any other file or document the AUSA has reason to believe may contain
discoverable information related to the matter being prosecuted.3 Therefore, the AUSA can
personally review the file or documents or may choose to request production of potentially
discoverable materials from the case agents. With respect to outside agencies, the AUSA should
request access to files and/or production of all potentially discoverable material.
The investigative agency's entire investigative file, including documents such as FBI
Electronic Communications (ECs), inserts, emails, etc. should be reviewed for discoverable
information. If such information is contained in a document that the agency deems to be an
“internal” document such as an email, an insert, an administrative document, or an EC, it may
not be necessary to produce the internal document, but it will be necessary to produce all of the
discoverable information contained in it. If an AUSA determines that other files might contain

2

Exceptions to an AUSA's access to Department law enforcement agencies' files are
documented in agency policy, and may include, for example, access to a non-testifying source's
files. If an AUSA believes that the circumstances of the case warrant review of a non-testifying source's
file, the AUSA should follow the agency's procedures for requesting the review of such a file.
3

Nothing in this policy alters the Department's Policy Regarding the Disclosure to
Prosecutors of Potential Impeachment Information Concerning Law Enforcement Agency
Witnesses contained in USAM § 9-5.100.

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 discoverable information, the AUSA should also discuss with the investigative agency whether
these case files or non-investigative files such as confidential source files contain discoverable
information and review the file, as necessary.
2. Confidential Informant (CI)/Witness (CW)/Human Source (CHS)/Source (CS) Files:
The credibility of cooperating witnesses or informants will always be at issue if they testify
during a trial. Therefore, AUSAs are entitled to access to the agency file for each testifying CI,
CW, CHS, or CS. Those files should be reviewed for discoverable information and copies made
of relevant portions for discovery purposes. The entire informant/source file should be included
within this review, and not just the portion relating to the current case, including all proffer,
immunity and other agreements, validation assessments, payment information, and other
potential witness impeachment information.
AUSAs should take affirmative steps to protect non-discoverable, sensitive information
found within a CI, CW, CHS, or CS file. In fact, AUSAs should first consider whether
discovery obligations arising from the review of CI, CW, CHS. and CS files may be fully
discharged while better protecting government or witness interests such as security or privacy
via a summary letter to defense counsel rather than producing the record in its entirety.
AUSAs must always be mindful of security issues that may arise with respect to
disclosures from confidential source files. Prior to disclosure, AUSAs should consult with the
investigative agency to evaluate any such risks and to develop a strategy for addressing those
risks or minimizing them as much as possible, consistent with discovery obligations.

3. Evidence and Information Gathered During the Investigation: Generally, all evidence
and information gathered during the investigation should be reviewed, including anything
obtained during searches or via subpoenas, etc. In cases involving a large volume of potentially
discoverable information, AUSAs may discharge their disclosure obligations by choosing to
make the voluminous information available to the defense.
4. Substantive Case-Related Communications: “Substantive” case-related
communications may contain discoverable information. Those communications that contain
discoverable information should be maintained in the case file or otherwise preserved in a
manner that associates them with the case or investigation. “Substantive” case-related
communications are most likely to occur (1) among AUSAs and/or agents, (2) between AUSAs
and/or agents and witnesses and/or victims, and (3) between victim-witness coordinators and
witnesses and/or victims. Such communications may be memorialized in emails, memoranda, or
notes.
“Substantive” communications include factual reports about investigative activity, factual
discussions of the relative merits of evidence, factual information obtained during interviews or
interactions with witnesses/victims, and factual issues relating to credibility. Communications

Procedural Order -- 4

 involving case impressions or investigative or prosecutive strategies without more would not
ordinarily be considered discoverable, but substantive case-related communications should be
reviewed carefully to determine whether all or part of a communication (or the information
contained therein) should be disclosed. AUSAs should consider whether they need to redact
nondiscoverable information from factual reports. Redaction also may be necessary to assure
witness safety.
AUSAs should also remember that with few exceptions (see, e.g., Fed. R. Crim. P.
16(a)(1)(B)(ii) (that portion of any written record containing statement(s) by the defendant to a
law enforcement agent)), the format of the information does not determine whether it is
discoverable. For example, material exculpatory information that the AUSA receives during a
conversation with an agent or a witness is no less discoverable than if that same information
were contained in an email. When the discoverable information contained in an email or other
communication is fully memorialized elsewhere, such as in a report of interview or other
document(s), then the disclosure of the report of interview or other document(s) will ordinarily
satisfy the disclosure obligation.
5. Case-related Communications Through Electronic Medium Such as Email: AUSAs
should refrain from communicating with other AUSAs, agents or witnesses through any
electronic means, including but not limited to email and text messages, where those
communications include substantive case-related communications. AUSAs also are encouraged
to refrain from discussing trial or investigative strategies, witness statements or witness
credibility through such electronic means. Any AUSA who does communicate through those
mediums should be mindful that those communications may be discoverable and disclosable to
the defense and the courts. Keep in mind that electronic records must be printed and stored in
the agent/AUSA file just as any other written records would be preserved.
6. Potential Giglio Information Relating to Law Enforcement Witnesses: AUSAs should
have candid conversations with the federal agents with whom they work regarding any potential
Giglio issues, and they should follow the procedure established in USAM § 9-5.100 whenever
necessary before calling the law enforcement employee as a witness. [See Brady-Giglio
questions] AUSAs also should be familiar with Ninth Circuit law and local practice regarding
obtaining Giglio information from state and local law enforcement officers. See United States v.
Booth, 309 F.3d 566, 574 (9th Cir.2002)(prosecutor need not examine personnel filed of law
enforcement officers prosecutor does not intend to call)(citing United States v. Jennings, 960
F.2d 1488, 1489 (9th Cir. 1992)); United States v. Dominguez-Villa, 954 F.2d 562, 566 (9th
Cir.1992)(prosecutor need not examine personnel records of law enforcement agents or
employees not under its control, including state officials).
7. Potential Giglio Information Relating to Non-Law Enforcement Witnesses and
Federal Rules of Evidence 806 Declarants: All potential Giglio information known by or in the
possession of the prosecution team relating to non-law enforcement witnesses should be gathered
and reviewed. That information includes, but is not limited to:

Procedural Order -- 5

 (a) Prior inconsistent statements (possibly including inconsistent attorney proffers,
see United States v. Triumph Capital Group, 544 F.3d 149 (2d Cir. 2008));
(b) Statements or reports reflecting witness statement variations;
(c) Benefits provided to witnesses including: dropped or reduced charges; immunity;
expectations of downward departures or motions for reduction of sentence; assistance in
a state or local criminal proceeding; considerations regarding forfeiture of assets; stays of
deportation or other immigration status considerations; S-Visas or other immigration
benefits; monetary benefits; non-prosecution agreements; letters to other law
enforcement officials (e.g. state prosecutors, parole boards) setting forth the extent of a
witness's assistance or making substantive recommendations on the witness's behalf;
relocation assistance; consideration or benefit to culpable or at risk third-parties; and
(d) Other known conditions that could affect the witness's bias such as: animosity
toward defendant; animosity toward a group of which the defendant is a member or with
which the defendant is affiliated; relationship with victim; known but uncharged criminal
conduct (that may provide an incentive to curry favor with a prosecutor); prior acts under
Fed. R. Evid. 608; prior convictions under Fed. R. Evid. 609; known substance abuse or
mental health issues or other issues that could affect the witness's ability to perceive and
recall events.
8. Information Obtained in Witness Interviews: Although not required by law, generally
speaking, witness interviews should be memorialized by the agent. Agent and AUSA notes and
original audio and video recordings should be preserved, and AUSAs should confirm with agents
that substantive interviews should be memorialized. When an AUSA participates in an interview
with an investigative agent, the AUSA and agent should discuss note-taking responsibilities and
memorialization before the interview begins. AUSAs should not conduct interviews without an
agent present to memorialize the interview. Interview memoranda of witnesses expected to
testify, and of individuals who provided relevant information but are not expected to testify,
should be reviewed.
(a) Witness Statement Variations and the Duty to Disclose: Some witnesses'
statements will vary during the course of an interview or investigation. 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.
(b) Trial Preparation Meetings with Witnesses: Trial preparation meetings with
witnesses generally need not be memorialized. However, AUSAs should be particularly
attuned to new or inconsistent information disclosed by the witness during a pre-trial
witness preparation session. New information that is exculpatory or impeachment
information should be disclosed consistent with the provisions of USAM § 9-5.001 even
if the information is first disclosed in a witness preparation session. Similarly, if the new

Procedural Order -- 6

 information represents a variance from the witness's prior statements, AUSAs should
consider whether memorialization and disclosure is necessary consistent with the
provisions of subparagraph (a) above.
(c) Agent Notes: Agent notes should 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. AUSAs should pay particular attention to
agent notes generated during an interview of the defendant or an individual whose
statement may be attributed to a corporate defendant. Such notes may contain
information that must be disclosed pursuant to Fed. R. Crim. P. 16(a)(1)(A)-(C) or may
themselves be discoverable under Fed. R. Crim. P. 16(a)(1)(B). See, e.g., United States
v. Riley, 189 F.3d 802 (9th Cir. 1999) and United States v. Boshell, 952 F.2d 1101(9th Cir.
1991). An agent's rough notes from a witness interview are discoverable under the
Jencks Act only to the extent they contain “statements” of government witnesses. United
States v. Henke, 222 F.3d 633, 643 (9th Cir.2000). Any rough notes reflecting a
statement of government witnesses as defined by 18 U.S.C. § 3500(e), even that which
may qualify as Brady impeachment material, is to be produced at the time Jencks Act
material is turned over by the government. See United States v. Alvarez, 358 F.3d 1194,
1207 n. 7 and 1211 (9th Cir.), cert. denied, 543 U.S. 887 (2004). Agents should be
instructed to preserve their rough interview notes pursuant to the Procedural Order and
any notes containing potential Brady material. See United States v. Spencer, 618 F.2d
605, 606-07 (9th Cir.1980).
9. National Security Information: Cases involving national security, including terrorism,
espionage, counterintelligence, and export enforcement, can present unique and difficult criminal
discovery issues. The Department of Justice has developed special guidance for those cases,
which is contained in Acting Deputy Attorney General Gary G. Grindler's September 29, 2010,
memorandum, "Policy and Procedures Regarding the Government's Duty To Search for
Discoverable Information in the Possession of the Intelligence Community or Military in
Criminal Investigations." Prosecutors should consult that memorandum and their supervisors
regarding discovery obligations relating to classified or other sensitive national security
information. As a general rule, in those cases where the prosecutor, after conferring with other
members of the prosecution team, has a specific reason to believe that one or more elements of
the Intelligence Community (IC) possess discoverable material, he or she should consult NSD
regarding whether to request a prudential search of the pertinent IC element(s). All prudential
search requests and other discovery requests of the IC must be coordinated through NSD.
Although discovery issues relating to classified information are most likely to arise in
national security cases, they may also arise in a variety of other criminal cases, including
narcotics cases, human trafficking cases, money laundering cases, and organized crime cases. In
particular, it is important to determine whether the prosecutor, or another member of the

Procedural Order -- 7

 prosecution team, has specific reason to believe that one or more elements of the IC possess
discoverable material in the following kinds of criminal cases:
•

Those targeting corrupt or fraudulent practices by middle or upper officials of a
foreign government;

•

Those involving alleged violations of the Arms Export Control Act or the
International Emergency Economic Powers Act;

•

Those involving trading with the enemy, international terrorism, or significant
international narcotics trafficking, especially if they involve foreign government or
military personnel;

•

Other significant cases involving international suspects and targets; and

•

Cases in which one or more targets are, or have previously been, associated with an
intelligence agency.

For these cases, or for any other case in which the prosecutors, case agents, or supervisors
making actual decisions on an investigation or case have a specific reason to believe that an
element of the IC possesses discoverable material, the prosecutor should consult with NSD
regarding whether to make through NSD a request that the pertinent IC element conduct a
prudential search. If neither the prosecutor, nor any other member of the prosecution team, has a
reason to believe that an element of the IC possesses discoverable material, then a prudential
search generally is not necessary. Additional District Discovery Policy Guidance and Policy
Procedure Memo dated 9/29/2010.
Step 2: Conducting the Review
Having gathered the information described above, AUSAs must ensure that the material
is reviewed to identify discoverable information. It would be preferable if AUSAs could review
the information themselves in every case, but such review is not always feasible or necessary.
The AUSA is ultimately responsible for compliance with discovery obligations; thus, the
AUSA's decision about how to conduct this review controls. This process may involve agents,
paralegals, agency counsel, and computerized searches. Although AUSAs may delegate the
process and set forth criteria for identifying potentially discoverable information, AUSAs should
not delegate the disclosure determination itself. In cases involving voluminous evidence
obtained from third parties, AUSAs should consider providing defense access to the voluminous
documents to avoid the possibility that a well-intentioned review process nonetheless fails to
identify material discoverable evidence.

Procedural Order -- 8

 Step 3: Making the Disclosures
AUSAs are encouraged to provide discovery broader and more comprehensive than
required under Fed. R. Crim. P. 16 and 26.2, the Jencks Act, Brady, Giglio, USAM § 9-5.001,
and the Procedural Order. If an AUSA chooses this course, the AUSA should advise defense
counsel that discovery is being made beyond what is required by the rules and case law
governing discovery. The AUSA should make clear that it is the AUSA’s choice to do so, not
his or her obligation. Discovery obligations are continuing, and AUSAs should always be alert
to developments occurring up to and through trial of the case that may affect their discovery
obligations and require disclosure of information that was previously not disclosed.
A. Considerations Regarding the Scope and Timing of Disclosures: Providing broad and
early discovery often fosters a speedy resolution of many cases. It also provides a margin
of error in case the AUSA's good faith determination of the scope of appropriate
discovery is in error. AUSAs are encouraged to provide broad and early discovery
consistent with any countervailing considerations. But when considering providing
discovery beyond that required by the discovery obligations or providing discovery
sooner than required, AUSAs should always consider any appropriate countervailing
concerns in the particular case, including, but not limited to: protecting victims and
witnesses from harassment or intimidation; protecting the privacy interests of witnesses;
protecting privileged information; protecting the integrity of ongoing investigations;
protecting the trial from efforts at obstruction; investigative agency concerns; enhancing
the likelihood of receiving reciprocal discovery by defendants; any applicable legal or
evidentiary privileges; and other strategic considerations that enhance the likelihood of
achieving a just result in a particular case. In most jurisdictions, reports of interview
(ROIs) of testifying witnesses are not considered Jencks material unless the report
reflects the statement of the witness substantially verbatim or the witness has adopted it.
AUSAs in this office typically disclose ROIs of testifying witnesses and are encouraged
to continue to disclose these reports absent countervailing concerns.
A note of caution: An AUSA should never describe this office’s discovery policy as
“open file,” because even if the AUSA intends to provide expansive discovery, it is
always possible that something will be inadvertently omitted from production and the
AUSA will then have unintentionally misrepresented the scope of materials provided.
Furthermore, because the concept of the "file" is imprecise, such a representation exposes
the Government to broader disclosure requirements than intended or to sanction for
failure to disclose documents, e.g. agent notes or internal memos that the court may deem
to have been part of the "file."
When the disclosure obligations are not clear or when the considerations above conflict
with the discovery obligations, AUSAs may seek a protective order from the court
addressing the scope, timing, and form of disclosures.

Procedural Order -- 9

 B. Timing: Exculpatory information, regardless of whether the information is
memorialized, must be disclosed to the defendant reasonably promptly after discovery.
Impeachment information, which depends on the AUSA's decision on who is or may be
called as a government witness, will typically be disclosed at a reasonable time before
trial to allow the trial to proceed efficiently. See USAM § 9-5.001.
The district court’s Procedural Order guides the timing of disclosures in the ordinary
case. AUSAs are expected to comply with the Procedural Order’s specified time frames,
unless the court has entered an order delaying discovery or other arrangement has been
made. The Procedural Order’s time frames are as follows:
(1) Within seven calendar days from the date of arraignment, the United States shall
disclose Fed. R, Crim. P. 16 materials and Fed. R. Evid. 404(b) other acts evidence;4
(2) Within seven calendar days from the date of arraignment, the United States is
“strongly encouraged” to disclose Brady/Giglio material; other impeachment material;
evidence regarding any identification proceeding, including lineups and photo spreads;
discoverable agent rough notes; whether the defendant was an “aggrieved person” under
18 U.S.C. §§ 2518(10)(a) and (8)(d)(were they intercepted in a wiretap); and copies of
all latent finger or palm prints and handwriting exemplars.
The Procedural Order recognizes that the rules permit AUSAs to seek relief from
disclosure requirements in certain circumstances. See Revised Criminal Procedural
Order at p. 5, para. 3; Fed . R. Crim. P. 16(d)(1). Such protection/modification orders
should not be used as a matter of course but only for fact-specific reasons. Such motions
under the Rule should be reviewed and approved by the Criminal Chief or SLC prior to
filing.
C. Scope of Disclosure Under the Procedural Order
The Procedural Order authorizes, but does not require, AUSAs to disclose grand jury
material to defense counsel and others in connection with preparation of the case. See
Revised Criminal Procedural Order at p. 7, para. 6; Fed. R. Crim. P. 6(e). Disclosure is
limited, however, to those persons specifically identified in the Procedural Order. If a
trial witness has testified in the grand jury and that witness’s report is not turned over in
discovery, it must be furnished to the defendant at trial, pursuant to the Jencks Act, 18
U.S.C. § 3500, or at some point before trial to expedite the proceedings.

4

The Procedural Order does not specify that the United States must provide notice of
intent to use this other acts evidence within seven days of arraignment. Fed. R. Evid. 404(b)
itself provides that “the prosecution in a criminal case shall provide reasonable notice in advance
of trial” of the other acts evidence it intends to introduce.
Procedural Order -- 10

 The Procedural Order does not have an automatic Henthorn request provision. As
you know, we have a duty, after a request by the defense, to inspect for Brady material
the personnel records of federal law enforcement officers who will testify at trial,
regardless of whether the defense has made a showing of materiality. United States v.
Henthorn, 931 F.2d 29, 31 (9th Cir. 1991). However, without regard to Henthorn, under
Brady the government is obligated, upon request, to disclose information to the defense
regarding government witnesses that could be used to impeach them. See United States
v. Bagley, 473 U.S. 667 (1985). Under these principles, our obligation to review
personnel files includes those of all federal law enforcement officers who are called to
testify at trial or in connection with any pretrial motion, but not those of state law
enforcement. United States v. Dominguez-Villa, 954 F.2d 562, 565-66 (9th Cir. 1992).
USAM § 9-5.100 Henthorn requests should be made at least two weeks in advance of
trial through our requesting official, the Criminal Chief.
D. Form of Disclosure:
In deciding when and in what format to provide discovery, AUSAs should always
consider security concerns and the other factors set forth in subparagraph (A) above, as
well as the availability of office personnel resources. As set forth in Step 4 below,
discovery format is an essential part of making an adequate record of discovery.
There may be instances when it is not advisable to turn over discoverable information
in its original form, such as when the disclosure would create security concerns or when
such information is contained in attorney notes, internal agency documents, confidential
source documents, Suspicious Activity Reports, etc. If discoverable information is not
provided in its original form and is instead provided in a letter to defense counsel,
including particular language, where pertinent, AUSAs should take great care to ensure
that the full scope of pertinent information is provided to the defendant.
Step 4: Making a Record
One of the most important steps in the discovery process is keeping good records
regarding disclosures. AUSAs should make a record of when and how information is
disclosed or otherwise made available. AUSAs also should make a record of whether defense
counsel have reviewed original discovery or original physical evidence. While discovery
matters are often the subject of intense ligation in criminal cases, keeping a record of the
disclosures confines the litigation to substantive matters and avoids time-consuming disputes
about what was disclosed. These records can also be critical when responding to petitions for
post-conviction relief, which are often filed long after the trial of the case. Keeping accurate
records of the evidence disclosed is no less important than the other steps discussed above. Poor
records can negate all of the work that went into taking the first three steps.

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 To facilitate discovery-record-keeping AUSAs should produce all discovery items with
Bates-numbers for future identification. Likewise, every disclosure should be accompanied by
correspondence from the AUSA to defense counsel clearly identifying which Bates-numbered
items are being disclosed and addressing any other necessary discovery matters, including the
availability of original evidence for inspection. AUSAs should keep a master set of discovery
items to be able to quickly demonstrate that a specific Bates-numbered item or document has
been disclosed. It is anticipated that discovery in all but the least complex cases will be scanned
and produced electronically. Where discovery is produced electronically, AUSAs should keep a
copy of each disc produced to defense counsel. AUSAs also should consider keeping a
discovery log to track what items were turned over, when they were turned over, how they were
turned over and to whom they were turned over. Attachment “B” contains a sample discovery
log. AUSAs may want to consider asking defense counsel to verify that they have received
discovery, been given the opportunity to view voluminous discovery or actually viewed original
evidence.
Conclusion
Compliance with discovery obligations will facilitate a fair and just result in every case,
which is our goal in pursuing a criminal prosecution. This policy does not and could not provide
direction for every discovery question because discovery obligations are often fact specific. This
policy is designed to guide AUSAs as they consider their discovery obligations in each case.
AUSAs also have at their disposal an array of resources intended to assist them in evaluating
their discovery obligations including supervisors, the discovery coordinators - Criminal AUSA
Lynn Lamprecht our SLC, PRAO, USABook online, and the Department of Justice’s Guidance
for Prosecutors Regarding Criminal Discovery (January 4, 2010), USAM, Title 9, Criminal
Resource Manual, 165. In addition, the District of Idaho will conduct annual training regarding
criminal discovery obligations. By evaluating discovery obligations pursuant to the methodical
and thoughtful approach set forth in this policy and taking advantage of available resources,
AUSAs are more likely to meet their discovery obligations in every case and in so doing achieve
a just and final result in every criminal prosecution.

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