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CRIMINAL DISCOVERY POLICY
DISTRICT OF MARYLAND
OCTOBER 2010

NOT FOR DISSEMINATION OUTSIDE THE DEPARTMENT OF
JUSTICE
PRIVILEGED ATTORNEY WORK PRODUCT

This policy is not intended to and does not create any substantive or procedural
rights enforceable at law by any person in any administrative, civil or criminal
matter or case, nor does this policy place any limitations on otherwise lawful
litigative prerogatives of the United States. See United States Attorney’s
Manual (USAM) § 1-1.100; United States v. Caceres, 440 U.S. 741 (1979).

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Table of Contents
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. What and When . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. Rules 12 and 16.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. Rules 12.1, 12.2 and 12.3 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
C. Federal Rules of Evidence 404(b), 413 and 414.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
D. Brady information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
E. Jencks and Rule 26.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
F. Giglio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1. In General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2. Law Enforcement Witnesses .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
G. When? Timing of Discovery.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
III. Who.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
IV. Where to Look for Discoverable Material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
V. How .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
VI. Special Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
A. National Security Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
B. Capital Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

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I.
INTRODUCTION
As a result of a comprehensive nationwide review of the Department’s and United States
Attorneys’ discovery policies, the Deputy Attorney General issued a memorandum on January 4,
2010 entitled Guidance for Prosecutors Regarding Criminal Discovery and an accompanying
memorandum requiring each United States Attorney’s Office to promulgate a discovery policy that
implements the Deputy Attorney General’s directives.
This policy, together with the District of Maryland Best Practices Memo of December 2009,
provides guidance to AUSAs1 on gathering, maintaining, reviewing and producing information to
criminal defendants in accordance with the Constitution, statutes, rules, case law, DOJ policy and
local rules and practice. While it does not undertake to address every issue an AUSA will confront
when making discovery decisions, it is designed to familiarize attorneys with their disclosure
obligations, provide guidance, and identify potential issues. Supervisors are available to assist in
satisfying discovery obligations.
This guide is also intended to help fulfill the special responsibility of the United States
Attorney as famously articulated by the Supreme Court in 1935:
The United States Attorney is the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but that justice shall be done. As
such, he is in a peculiar and definite sense the servant of the law, the twofold aim of
which is that guilty shall not escape or innocence suffer. He may prosecute with
earnestness and vigor–indeed he ought to do so. But, while he may strike hard
blows, he is not at liberty to strike foul ones. It is as much his 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.
Berger v. United States, 295 U.S. 78, 88 (1935).
Our duties are set forth in the Federal Rules of Criminal Procedure Rules 12 and 16; Federal
Rules of Evidence 404(b) and 413-414, the Jencks Act, 18 U.S.C. § 3500, and Federal Rule of
Criminal Procedure 26.2; Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S.

“AUSAs” includes Special AUSAs and any DOJ attorneys practicing in the District of
Maryland.
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150 (1972), and their progeny; USAM 9-5.001 (Disclosure of Exculpatory and Impeachment
Information) and 9-5.100 (Potential Impeachment Information on Law Enforcement Witnesses); and
the local rules and standing orders of the district and magistrate court, as well as rules governing
professional conduct2. Additionally, the Department will soon be issuing a “blue book” monograph
on discovery which should be consulted. All AUSAs should be familiar with the rules, statutes, and
USAMs cited above, and should read, in addition to Brady and Giglio, Kyles v.Whitley, 514 U.S. 419
(1995) and Strickler v. Greene, 527 U.S. 263 (1999).
This policy, and that of the Department of Justice, encourages AUSAs to provide liberal and
early discovery of information and materials to the extent that broad and early discovery promotes
the just resolution of a case and does not jeopardize witness safety, national security, or an ongoing
criminal investigation. In some respects, this policy requires broader production than the law and
local rules. It is not intended, however, to confer any substantive or procedural rights or benefits on
any defendant, party or witness, and is not to be cited or disseminated outside the Office. See
generally, United States v. Caceres, 440 U.S. 741 (1979).
Kyles v. Whitley, 514 U.S. 419 (1995) places the responsibility to produce all discoverable
information in a criminal case squarely with the AUSA(s) assigned to the case. To fulfill this
responsibility, AUSAs should consider the following:
•

What & When: What are the policies, rules, statutes and case law that define what
must be produced and when must it be produced?

•

Who is part of the prosecution team: AUSAs are obligated to produce information
that is within the possession of “the prosecution team;” thus, defining the scope of
the prosecution team is critical.

•

Where to look: Once the scope of the prosecution team has been identified, AUSAs
must ensure that all discoverable information in whatever format is located, reviewed
and produced as required, potentially including agency investigative and
administrative files, notes, CI files, e-mails, PSRs, law enforcement Giglio, etc.

•

How to produce and track: AUSAs must decide in what form to produce the
discovery (Bates numbered, hard copy, e-copy, available for inspection, redacted,
etc), and must keep a detailed record of all discovery produced. A sloppy or
imperfect record of what discovery is produced won’t be any use to a colleague trying
to defend a conviction years later. AUSAs should never characterize their production
as “open file.”

2 AUSAs are subject to the rules of professional conduct promulgated by the states in which they are admitted. 28
U.S.C. § 530B.

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II.
What and When?
What?
Summary of Laws, Rules and Policies
Governing Disclosure and Timing of Discovery
The government’s obligation to provide discovery derives from four general sources: federal
rules, specifically Federal Rules of Criminal Procedure 16, 26.2, and 12(b)(4)and Federal Rules of
Evidence 404(b), 413 and 414, statute, specifically the Jencks Act, 18 U.S.C. § 3500, the
Constitution, as explicated through case law and directives contained in the United States
Attorney’s Manual (USAM), specifically USAM 9-5.001 and 9-5.100. Additionally, local (state bar)
rules of professional conduct may apply under 18 U.S.C. § 530B (the “McDade” Act)
A.

Federal Rules of Criminal Procedure Rule 12 and 16

In accordance with the terms of the Office’s standard discovery agreement, upon the
defendant’s request and the signing of a discovery agreement at or before arraignment,3 AUSAs
should generally make available for inspection beginning within 14 days of the later of the
arraignment or the return of the signed discovery letter all materials and items required to be
produced or identified by Federal Rules of Criminal Procedure Rules 12(b)(4) and 16,
including but not limited to
-Defendant’s written or recorded statements. These may be voluminous, particularly if there
are wiretap conversations, text or email messages or jail calls. Transcripts of recorded
communications do not need to be provided at this time, so long as the conversations
themselves are provided, but the AUSA should give defense counsel some indication of
when transcripts are expected to be ready. AUSAs should ask all agents and police officers
who have had any contact with the defendant to report all statements, verbal or non-verbal,
the defendant may have made. If a defendant made a statement to law enforcement that is
not memorialized in a report, the substance of the statement must be disclosed to the defense.

-Statements attributable to an organizational defendant.

To trigger the government’s reciprocal discovery rights defined in Federal Rules of Criminal
Procedure Rule 16 (b), the defendant must “request” discovery. As is apparent from the Office’s
standard discovery letter, this Office deems all proper requests to have been made, and we will
not quibble over whether a defendant has made a discovery request.
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-Defendant’s prior record
-Documents or objects obtained from the defendant, for use in the government’s case-inchief or which are material to the preparation of the defense (can start with an inventory of
items seized from the defendant by law enforcement officials)
-Reports of physical, mental or scientific examinations and tests. This includes drug
analysis, handwriting analysis, DNA, blood-alcohol, fingerprint, ballistics and toolmark
examination, etc.
-Expert witness summaries and qualifications. AUSAs should remember that under Rule
702, agents and police officers can supply “expert” testimony as to gangs, the drug trade, street
terms, etc. Accordingly, they are covered by Rule 16, and their qualifications (CVs) and a summary
of their testimony must be provided with the Rule 16 discovery.
-Rule 12(b)(4) requires the government to provide notice of evidence it intends to use in
order to allow the defense the opportunity to move to suppress that evidence before trial.
Examples include statements to law enforcement or evidence seized during a search. It is
wise to provide such evidence well in advance of trial in order for the suppression to be fully
litigated before trial. If you provide the defense with this evidence pretrial and they fail to
file a motion to suppress it, the defendant is deemed to have waived the suppression issue.
Fed. R. Crim. P. 12(b)(3) & (e). In the event the government loses on a pretrial suppression
motion that relates to material evidence, we may seek an interlocutory appeal. If, however,
the government fails to turn over the evidence in a timely manner and the court allows the
defense to raise a suppression motion at trial, we have no appellate remedy because jeopardy
will have attached by that point. If a suppression issue is pending, an AUSA should press
the court to rule on it before jury selection to preserve the government’s right to appeal.
Under Rule 12(d), a court cannot defer ruling on a pretrial motion if doing so adversely
affects a party’s appellate rights.
Practice Tip: Start making a Rule 16 folder when you begin the
investigation. As you go along, and before indictment, put into it copies of
defendants’ statements, rap sheets, documents seized from or belonging to the
defendant, CVs of expert witnesses, etc. This way you will be prepared to provide
substantial Rule 16 discovery at arraignment. Being well-organized and able to
produce voluminous discovery promptly conveys confidence in one’s case and
fosters a reputation for candor and preparedness which serves an AUSA well.
Occasionally, in fast-moving reactive cases and in drug or violent crime cases involving
multiple defendants, even after making the agents aware of their discovery obligations, it may not
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return of the signed discovery letter. However, AUSAs should consider this an important goal, and
should, by planning for discovery well before indictment, be able to meet a substantial part of their
Rule 16 obligations within this time frame. It is consistent with this policy for an AUSA to provide,
within the specified time frame, partial discovery of as much Rule 16 as reasonably possible in good
faith, noting for opposing counsel that there is material that has not been produced, and to complete
production as soon as reasonably practicable, recognizing that discovery imposes a continuing
obligation. It is not consistent with this policy to withhold discovery after indictment purely
to secure a tactical advantage, and AUSAs should not take this paragraph as license to delay
Rule 16 discovery just because it is inconvenient. Where an AUSA is unable to provide all
Rule 16 discovery within 14 days of arraignment or the return of the signed discovery letter,
s/he should document the reasons for his or her supervisor and should have a plan for when
the remaining Rule 16 materials will be produced.
Practice Tip: Rule 16 contains its own provision for a protective
order. Fed. R. Crim. P. 16(d)(1). If there is Rule 16 discovery that could put any
person at risk or that might impair an ongoing investigation, the AUSA may wish to
submit it for in camera review and to ask the court to “deny, restrict, or defer” Rule
16 discovery for that reason.
Note that Rule 16(a)(1)(E) requires disclosure of documents and objects in the government’s
control which are (I) material to preparing the defense; (ii) intended for use in the government’s
case-in-chief; or (iii) obtained from or belong to the defendant. There may occasionally be
documents or objects which an AUSA intends to use only in rebuttal, to counter an anticipated
defense. So long as these were not obtained from the defendant, and are not material to the
preparation of the defense, it is acceptable to keep such documents or objects back for rebuttal use.
The AUSA must be extremely careful in doing so, however, and should keep in mind that if the
document becomes one that s/he needs or wants to use in the case-in-chief, it must be disclosed. It
is not the policy of this Office that the term “material to preparing the defense” includes documents
that will help the defense to avoid embarrassment by being able to tailor the defense around rebuttal
evidence. However, AUSAs should always bear in mind the truth-seeking mission of the
Department and this Office, and should not “sandbag” the defense where providing early and liberal
discovery could promote prompt and just resolution of a case.
It was the former practice of this Office in multi-defendant cases to appoint one defense
attorney to serve as “discovery counsel” for all defendants. We no longer do so. Even voluminous
discovery can now generally be produced cheaply and conveniently in disc form, and providing
discovery to all counsel avoids the problem of discovery counsel forgetting his obligations to his codefendants once his client pleads.
Occasionally a defense attorney will decline to sign the standard discovery agreement. If this
occurs, the AUSA should consult with his or her supervisor to determine how to handle discovery

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for such an attorney.
B. Fed. Rules of Criminal Procedure 12.1, 12.2 and 12.3
Each of these rules allows the government to seek disclosure of specified information from
the defense, and each triggers a reciprocal disclosure requirement from the government. For
example, Rule 12.1 allows us to seek alibi information from the defense, but in order to make the
request, we have to specify the time, date and place of the offense in writing. AUSAs handling cases
where an alibi defense (or a defense asserting insanity under Rule 12.2 or public authority under Rule
12.3) is possible, should make the demand at arraignment.
Once the government has made the request, the defendant is obliged to respond within 14
days, stating where he claims to have been and giving names and contact information for every
witness he will call to establish the alibi. The government is then obligated to supply names and
contact information for each witness who will place the defendant at the scene, and each rebuttal
witness. There are special considerations for victim witnesses, so the AUSA should read the rule
carefully and should consult with the victim witness unit to be sure that the victims’ rights are being
observed. The AUSA may choose not to file an alibi notice at all, simply to avoid triggering the
reciprocal obligation.
Rule 12.2 governs mutual disclosures where the defendant offers an insanity defense, and
Rule 12.3 applies where the defendant claims to have committed the crime because he was
authorized to do so by law enforcement or the intelligence community. (This has happened: in this
office we have prosecuted a defendant who claimed to be working for the CIA, and asserted,
naturally, that they would disavow him, and one who was actually flying planes for DEA - when he
wasn’t flying planes for the Colombian drug lords).
C. Fed. Rules of Evidence 404(b), 413 and 414 - Similar Act Evidence
Rule 404(b) contains its own discovery provision: “upon request by the accused, the
prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if
the court excuses pretrial notice on good cause shown, of the general nature of any such evidence
it intends to introduce at trial.”
Our discovery agreement deems 404(b)4 evidence to have been “requested,” thus triggering
our obligation to provide “reasonable notice.” As a rule, where possible, providing early 404(b)
evidence to the defense will help to resolve a case quickly. In any event, the Office’s standard
discovery agreement provides that

4 Evidence under Rules 413 and 414, applicable to sexual assault and molestation cases, is treated the same as
404(b) evidence.

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at the same time that [the government] provides Rule 16
material [i.e. within two weeks of arraignment or the return
of the signed discovery letter], it will provide notice of the
existence of alleged other crimes, wrongs or acts committed
by your client pursuant to Rule 404(b) of the Federal Rules of
Evidence, along with copies of all physical and documentary
evidence believed by the government to fall within the ambit
of Rule 404(b) which the government intends to introduce at
trial in its case-in-chief. The government acknowledges its
continuing duty to disclose Rule 404(b) evidence as it is
recognized as such after the time period in which the
government has provided Rule 16 material.
The universal exception to the undertaking to provide early 404(b) is, of course, where
providing early Rule 404(b) will endanger any person or compromise national security or an ongoing
criminal investigation. The AUSA should always consider whether it is possible to enter into a
protective order or to craft a 404(b) disclosure in such a way as to avoid exposing any potential
witnesses. In any case, absent a court order to the contrary, 404(b) evidence should be produced no
later than the time when Jencks and Giglio are provided.
Practice Tip: If an AUSA wishes to delay production of Rule 404(b)
evidence, the AUSA should first consult his or her supervisor before seeking a
determination from the court that there is “good cause” to delay disclosure. No
AUSA should unilaterally decide to withhold disclosure of Rule 404(b) evidence
without notifying opposing counsel of its existence, since to do so could give a
misleading impression and result in the court excluding the evidence.
Practice Tip: One vehicle to disclose the existence of Rule 404(b)
material is to file a Motion in Limine outlining the evidence and explaining its
relevance and admissibility.
D. Brady information
The constitutional guarantee of a fair trial, as interpreted by Brady v. Maryland and its
progeny, requires AUSAs to disclose to the defense any evidence that is material to guilt or
punishment. Brady, 373 U.S. at 87; Giglio, 405 U.S. at 154. Brady and Giglio information must
be disclosed to the defense regardless whether the defense makes a request for such information.
On October 19, 2006, the Department of Justice issued an amendment to the U.S. Attorney’s Manual
that “requires AUSAs to go beyond the minimum obligations required by the Constitution and
establishes broader standards for disclosure of exculpatory and impeachment information.” The
details of the requirements are set forth in USAM § 9-5.001. In short, the policy requires disclosure

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of “information beyond that which is ‘material’ to guilt as articulated in Kyles v. Whitley, 514
U.S. 419 (1995),” and encourages AUSAs to “err on the side of disclosure.” This policy requires
the prosecution team to produce “information,” not just “evidence,” and counsels that the AUSA
must consider the cumulative impact of items of information. This means that an AUSA must not
try to assess whether the Brady information is admissible or would, standing alone, yield a different
outcome, but should turn the information over, regardless. Again, if the “exculpatory” information
would put any person at risk, the AUSA should first consult with his or her supervisor, and may wish
to seek the guidance of the Court.
The fundamental rule is this: All exculpatory information known to or in the possession
of the prosecution team, regardless of whether or how the information is memorialized, should
be disclosed to the defendant reasonably promptly after its discovery. Technically, Brady (and
Giglio) are not “discovery” obligations, but proscriptions against the government concealing
potentially exculpatory information. As such, the cases do not prescribe any timetable other than that
disclosure must be made in time for the defense “to reasonably and effectively use it at trial.” United
States v. Jeffers, 570 F. 3d 557, 573 (4th Cir. 2009). The better practice, and the practice in the
District of Maryland as stated in our standard discovery agreement, is to disclose Brady information
as soon as the prosecutor identifies it. And in accordance with the directives of USAM 9-5.001,
AUSAs are encouraged to go beyond the Constitutional requirements and take a broad view of
materiality when determining what must be disclosed:
A prosecutor 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 of the defendant for a charged crime.
USAM 9-5.001. This includes exculpatory information contained in whatever form, whether in
interview memoranda of persons expected to be called as witnesses, information contained in
interview memoranda of persons not expected to be called (sometimes confusingly referred to as
“non-testifying witnesses”) and in internal emails, memos, and other reports. There is no
requirement that the exculpatory information be provided in its original form; nor is there any
requirement that the government flag it as ‘exculpatory.’ The requirement is simply that the
government not conceal it.
Practice Tip: The AUSA may wish to send a letter to defense counsel
simply identifying a person who has exculpatory information, or spelling out the
exculpatory information in lieu of providing a copy of the original source document.
We do not meet our discovery obligations, however, if we bury the exculpatory
document in a warehouse full of other items.

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E. The Jencks Act and Rule 26.2
As a rule, as provided in this office’s standard discovery agreement, we agree to provide
Jencks materials either one week or two weeks in advance of trial. We provide Giglio
(impeachment) materials at the same time.
The Jencks Act, 18 U.S.C. § 3500, defines “witness statements” as ... “(1) a written
statement made by [a] witness and signed or otherwise adopted or approved by him; (2) a
stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a
substantially verbatim recital of an oral statement made by [the] witness and recorded
contemporaneously with the making of such oral statement; or (3) a statement, however taken or
recorded, or a transcription thereof, if any, made by [a] witness to a grand jury.” Title 18 U.S.C. §
3500 (e). Jencks Act materials on witnesses thus may include not only grand jury transcripts, but
also wiretaps, undercover conversations, recorded jail calls, e-mails or documents signed by the
witness, if they “relat[e] to the subject matter as to which the witness [is expected to testify].”
Practice Tip: In cases where there is a danger to
witnesses, the AUSA may wish to shorten the time provided for in the discovery
agreement to three days before trial, or even, in extreme cases, the night before a
witness is expected to be called. Where the discovery agreement provided for Jencks
a week or two before trial, but circumstances develop that suggest that a particular
witness may be endangered by early disclosure, the AUSA should seek a protective
order for good cause. In such a case, the court may approve providing Jencks as late
as the evening before the witness is to testify, but will not, in all likelihood, be
willing to let you withhold Jencks until after the witness has testified, because that
will cause a delay in the trial.
It is well established in the Fourth Circuit that interview reports such as 302s, DEA 6s, ROIs
or MOIs (hereafter “302s”) are not Jencks materials unless either they contain a verbatim recitation
of the witness’s words or the witness has adopted the statements made therein. United States v.
Roseboro, 87 F. 3d 642, 645-646 (4th Cir. 1996). Similarly, an agent’s rough notes, if incorporated
into a formal report, need not be maintained for Jencks production. United States v. Hinton, 719
F. 2d 711 (4th Cir. 1983).5 Nevertheless, AUSAs are encouraged to review all 302s and agent notes

Exceptions to this general rule include instances where there are inconsistencies between the
notes and the final report or where there is no other means available to satisfy the government’s
discovery obligations. Agents should be directed to review their rough notes to determine
whether any inaccuracies or omissions exist within their written reports. The AUSA should
personally review the rough notes if there is reason to believe there are inconsistencies, a written
memorandum was never prepared, the precise words a witness used are important (as in a false
statement case), or the witness disputes the agent’s account of the interview. If it turns out that
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thoroughly, first to see if they contain Brady, and ultimately to determine whether, absent threats to
witness safety, national security, or an ongoing criminal investigation, turning over the 302s will
promote the just and expeditious resolution of the case.
Do not give it up for free, however. Defense attorneys rely heavily on the Jencks materials,
and may be willing to enter into stipulations or make other concessions in order to get Jencks early
or to get 302s which are not technically Jencks. Any AUSA who elects to provide 302s should
stipulate that although the material is not Jencks and not discoverable, s/he is providing it as a
courtesy in the expectation of a prompt resolution. The AUSA should always redact the witness’s
contact information and any personal identifiers, should consider obtaining a protective order or
agreement from defense counsel that the 302s will not be disseminated further, and should take pains
to collect all copies of the 302s after the resolution of the case. AUSAs should recognize that, in the
context of violent crime, “paper,” such as a 302, is evidence that can be used to pose a serious threat
to the witness.
Practice tip: Consider showing 302s to counsel (with appropriate
redactions), rather than providing them. Or extract from counsel a written agreement
that, in exchange for disclosure of the 302s, the attorney agrees that the 302 is not
Jencks of any witness (except the author) and s/he will not attempt to use it to crossexamine any witness. Similarly, you may wish to obtain a protective order or Rule
6(e) order to govern discovery and to prohibit further downstream dissemination of
grand jury transcripts or other documents provided as Jencks.
Practice Tip: AUSAs should be aware of the many ways in which
“Jencks” can be created, and should take steps to avoid creation of unnecessary,
inconsistent or inaccurate Jencks material. For example, you may want to put
inexperienced Agent A in the grand jury in order to give him the experience of
testifying before a grand jury and summarizing an investigation, but to call
experienced Agent B at trial. If you will not be calling A at trial, you will not need
to produce his grand jury testimony as Jencks. There is no obligation under the rules
or this policy to provide the defense a roadmap of the government’s case.
Practice Tip: AUSAs, agents and witnesses should be reminded not
to engage in substantive email, text, tweet or other electronic communications about
the case, since such communications would have to be disclosed under the Jencks
Act.

there are inconsistencies between the notes and the final report, the government will have to
produce the notes.

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F. Giglio (impeachment) material
1. In General: Giglio v. United States, 405 U.S. 150 (1972), and its progeny, require
the government to turn over to the defendant any information known to the government that tends
to impeach government witnesses in a material way. Again, USAM 9-5.001 goes beyond Giglio’s
requirements and requires AUSAs to disclose anything that is material to the witness’s credibility,
or “that casts a substantial doubt upon the accuracy of any evidence ... the prosecutor intends to rely
on to prove an element of any crime charged, or might have a significant bearing on the admissibility
of prosecution evidence.” USAM 9-5.001. The information should be disclosed “regardless of
whether the information ... would itself constitute admissible evidence.” USAM 9-5.001.
Examples of Giglio that must be disclosed include
•
•

•
•
•
•
•
•
•
•
•

•

promises of leniency or immunity made to a witness, plea agreements,
financial benefits provided or promised to a witness or his family, including
relocation expenses, being put up in a hotel for safety purposes, purchase of “court”
clothing,
payments to an informant who becomes a witness
offers or expectations of immigration consideration,
consideration extended to family members, such as a decision not to charge a
witness’s wife, parent, child, etc.,
favorable treatment of an incarcerated witness, such as transfer to a more comfortable
facility or even buying an inmate lunch during a prep session,
any benefit of whatever kind afforded to the witness by a government agent (free
phone use, alcohol, unsupervised “conjugal” visits),
local unrelated arrests made to “disappear” by law enforcement,
evidence of addiction, alcoholism or mental problems that may affect the witness’s
ability to observe and report or that may disclose bias,
materially inconsistent statements,
any information that reflects negatively on a witness’s credibility, such as the
witness’s rap sheet, or other known prior material bad acts of misconduct of a
witness.
In the case of a law enforcement officer, evidence of sustained disciplinary findings
which cast the officer’s integrity or impartiality into doubt
Practice tip: AUSAs are not obliged to investigate the entire life of
a civilian witness in order to uncover potential Giglio information (i.e. no need for
a victim bank teller to disclose getting caught stealing candy at age 10). If that were
the case, no one would willingly testify. But the AUSA should take special care to
uncover Giglio material on criminal witnesses as well as law enforcement agents.
AUSAs should remember to obtain jail calls, letters and emails of incarcerated

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cooperator witnesses, since these may contain statements or observations about the
case or the witness’s expectations.
Practice Tip: It is helpful to ask cooperating witnesses if there is
anything that the defendant knows about them that could be used to embarrass or
impeach them. Undoubtedly the defendant knows more about his confederates than
we do, and if we know about bad information beforehand, we can file a Motion in
Limine to keep it out.
2. Giglio Impeachment Information Relating to Law Enforcement Witnesses
On occasion, Giglio issues arise with respect to law enforcement witnesses who are either
affiants or witnesses at a hearing or trial. For example, an agent or police officer may have been
found to have committed misconduct, or may be the subject of a pending internal or criminal
investigation. USAM 9-5.100 sets forth the Department’s policy on obtaining and disclosing Giglio
information relating to law enforcement witnesses. This procedure was developed in conjunction
with the law enforcement agencies, and must be followed. The FAUSA is the Giglio officer for this
district, and in his absence, the Criminal Chief.
All potential impeachment information obtained from a law enforcement witness or the
witness’s agency should be carefully protected and only disclosed to those with a need to know.
The USAO does not maintain a “do-not-call” list or any similar sort of blackball for law
enforcement witnesses, but rather relies on the good faith of law enforcement witnesses and their
agencies to respond to Giglio requests. There are three steps in ascertaining whether to disclose
impeachment information on law enforcement witnesses: the questionnaire, the request to the
agency, and the disclosure to court and/or counsel.
Step 1. Giglio Questionnaire for Law Enforcement Witnesses.
In every case, the AUSA should ask each potential law enforcement affiant/witness the
questions on the Giglio checklist, sufficiently in advance of a hearing or trial so that if there is reason
to make a formal Giglio request to the agency, the agency will have adequate time to respond. The
Baltimore City Police will respond within a day or two; in the case of a federal agency, or a local or
county police department, more time will be needed.
The questionnaire itself is designed to be an internal checklist, not a statement of a witness,
and should be completed by the AUSA and maintained in the case file. It should not be given to the
law enforcement witness to complete, shown to the law enforcement witness, or produced in
discovery.

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If the Giglio questionnaire raises no concerns, it should simply be put in the case file. A
“yes” answer to any of the questions necessitates further inquiry, and the AUSA should alert the
Giglio officer (the FAUSA), who will, in consultation with the AUSA, decide what action should
be taken. The original questionnaire should be kept with the case file in a marked and sealed
envelope.
Step 2. Requesting and Reviewing Personnel and Disciplinary Files.
When the Giglio checklist suggests that further inquiry is called for, or when the defense has
made a request for Giglio information on a particular officer, or when the case is before Judge
Bennett, the AUSA should notify the Giglio officer promptly, and provide him with any relevant
pleadings. When so notified by an AUSA, the Giglio officer will make a formal request for all
Giglio information from the law enforcement witness’s agency. If it is a federal agency, the
cognizant agency official will conduct a review of the agent’s personnel and disciplinary files and
disclose any impeaching information from the file to the requesting Giglio officer. If it is a state or
local agency, the agency will likely be asked to produce the complete records to the Giglio officer
for review.
Note: Judge Bennett requires a review of the IAD files of all testifying Baltimore
City police officers, whether or not there are adverse findings.
Practice Tip: Because gathering and reviewing Giglio records takes
time, AUSAs should consult with the Giglio officer sufficiently in advance of the
witness’s anticipated testimony to allow the process to be completed before the
witness testifies. If a Giglio request has been made but not responded to before trial
begins, the AUSA should so advise the court.
Step 3. Disclosure of Potential Impeachment Information to the Court or Defense
Counsel.
Once the agency discloses any impeachment information to the Giglio officer, the Giglio
officer, in consultation with the prosecuting AUSA, will review the material to determine whether
it should be disclosed to the court for an ex parte, in camera review or to defense counsel. The
FAUSA will discuss the matter fully before the AUSA makes any disclosures either to the court ex
parte, in camera, or to defense counsel. If the Giglio officer and the AUSA determine that the
matter must be disclosed, they will notify the officer/agent and the agency, in order to afford them
an opportunity to be heard.6

In some cases, an agent may be unaware that s/he is the subject of a pending investigation. In
such cases, the Giglio officer and the AUSA should be careful to discuss the matter only with the
agency, and not with the agent.
6

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If an AUSA asks the court to conduct an ex parte, in camera review of potential Giglio
information, or if, in the case of Judge Bennett, the court elects to conduct the review sua sponte,
the AUSA should ensure that the AUSA’s submission and the information reviewed by the court are
made part of the record, under seal, so that the judge’s decision can be reviewed by an appellate court
if necessary. The AUSA should provide the Giglio officer with any pleadings or documents that are
filed with the court regarding a law enforcement witness’s potential impeachment information, as
well as with any court rulings on potential impeachment information so that the Giglio officer can
handle the information in a consistent fashion in future cases.
All potential impeachment information received from an agency pursuant to a Giglio request
must be securely maintained and should not be shared with any person who does not have a need to
know. The FAUSA will determine whether, how and where such information should be maintained.
AUSAs should seek protective orders of sensitive potential impeachment information in appropriate
cases to prohibit further disclosures by defense counsel or the defendant.
When? Timing of Disclosure
A.

Before charges are brought.
(1)

Grand Jury:

Exculpatory Information. Although the Supreme Court has held that there is no
constitutional requirement that the government disclose exculpatory evidence to the grand jury, see
United States v. Williams, 504 U.S. 36, 52-54 (1992), USAM 9-11.233 requires AUSAs to disclose
to the grand jury “substantial evidence that directly negates the guilt of a subject of the
investigation.” This only makes sense, as the AUSA has the opportunity in the grand jury to explore
the supposedly exculpatory evidence and to decide whether or not to press for an indictment in light
thereof.
Impeachment Information: Again, there is no legal duty to seek out impeachment information
or to present impeachment information to a grand jury, but if an AUSA is aware of significant
impeachment information relating to a witness testifying before the grand jury, the AUSA should
consider disclosing it to the grand jury, taking into account the witness’s role in the case and nature
of the impeachment information.
(2)

Affidavits:

Exculpatory Information. If an AUSA is aware of substantial exculpatory information at the
time he or she is preparing or reviewing an affidavit in support of a search warrant, complaint,
seizure warrant, or T. III, the AUSA should discuss the matter in detail with his or her supervisor and
the Criminal Chief. See United States v. Kelly, 35 F. 3d 929 (4th Cir. 1994). AUSA should probably

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disclose the exculpatory information in the affidavit unless the AUSA obtains express supervisory
approval not to do so. See generally, Franks v. Delaware, 438 U.S. 154 (1978).
Impeachment Information. If at the time an AUSA is preparing or reviewing an affidavit in
support of a search warrant, complaint, seizure warrant or T.III, the AUSA is aware of impeachment
information relating to the affiant or other person relied upon in the affidavit such as a confidential
informant, and that impeachment information is sufficient to undermine the court’s confidence in
the probable cause contained in the affidavit, the AUSA should disclose the information in the
affidavit unless the AUSA obtains supervisory approval not to do so. A prior judicial finding of a
lack of credibility of an affiant or person relied upon in the affidavit should always be disclosed in
the affidavit. An AUSA who is in any doubt as to whether there exists such a finding with respect
to a law enforcement agent should consult the FAUSA.
B.
Post-Indictment Disclosures:
(1)
Exculpatory Information: After a defendant is charged, exculpatory information
should be disclosed reasonably promptly upon its discovery so that the defense can make use of it.
USAM 9-5.001 D 1; United States v. Jeffers, 570 F. 3d 557, 573 (4th Cir. 2009). If an AUSA
discovers exculpatory information after conviction, sentencing and appeal, the AUSA should discuss
the proper way to handle the matter with the Criminal Chief or Appellate Chief.
(2)

Impeachment information should be disclosed as follows:

(a)
Pre-Trial Hearings: Impeachment information relating to government
witnesses who will testify at a detention hearing, motions hearing, or other pre-trial hearing should
be disclosed sufficiently in advance of the hearing to allow the hearing to proceed efficiently.
(b)
Guilty Pleas: The Supreme Court has held that there is no constitutional
requirement that the government disclose impeachment information prior to a guilty plea. United
States v. Ruiz, 536 U.S. 622 (2002). Nonetheless, if the AUSA is aware of impeachment information
so significant that it undermines the AUSA’s confidence in the defendant’s guilt, the AUSA should
consult his or her supervisor, and should disclose the information, unless the AUSA obtains express
supervisory approval not to do so.
AUSAs should bear in mind that the ABA has issued a formal opinion interpreting ABA
Model Rule 3.8(d), Formal Opinion 9-454 (2009) which maintains that, inter alia, a prosecutor has
a duty to disclose exculpatory and impeachment information prior to entering a guilty plea. That
is not the policy of the Department of Justice or of the USAO for the District of Maryland, and any
AUSA confronting an argument relying on Model Rule 3.8(d) and the opinion interpreting it should
not only consult with her supervisor in formulating a response, but should also consult the
Professional Responsibility Officers and the Department of Justice Professional Responsibility
Advisory Office (PRAO), which can be reached at 202-514-0458.

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(c)
Trial: Impeachment information should be disclosed “at a reasonable time
before trial to allow the trial to proceed efficiently.” USAM 9-5.001 D 2; United States v. Jeffers,
570 F. 3d 557, 573 (4th Cir. 2009). It is the local practice of the United States Attorney’s Office for
the District of Maryland to provide impeachment material (Giglio) at the same time Jencks is
provided, by agreement, usually one or two weeks in advance of trial. AUSAs should resist requests
to provide Giglio earlier, since to do so conclusively identifies cooperators, exposing them to danger
whether or not the case eventually goes to trial.
(d)
Sentencing: USAM 9-5.001 D 3 requires: “Exculpatory and impeachment
information that casts doubt upon proof of an aggravating factor at sentencing, but that does not
relate to proof of guilt, should be disclosed no later than the court’s initial presentence investigation.”
Thus, AUSAs should generally disclose such information to the defense and to the United States
Probation Officer conducting the PSR investigation. If additional favorable information becomes
apparent after the initial PSR is issued, it should be disclosed promptly.
(e)
Post-conviction evidentiary hearings: (probation/supervised release
revocations, habeas actions) The United States District Court for the District of Maryland seldom
conducts evidentiary hearings in post-conviction matters. In the event of such a hearing, however,
impeachment information should be disclosed at a reasonable time before the hearing to allow the
hearing to proceed without interruption.
III. Who?
Who is Part of the Prosecution Team:
Gathering and Reviewing Potentially Discoverable Information
A.

Prosecution Team

In Kyles v. Whitley, 514 U.S. 419 (1995), the Supreme Court held that prosecutors are
charged with knowledge of, or possession of, any evidence held by their investigators even where
the prosecutor himself was unaware of the existence of that evidence. In Kyles, Louisiana argued
that the state prosecutor was unaware of some of the exculpatory evidence: namely, significant
inconsistencies in the story that a key cooperating witness told the police. The Court held that the
government had suppressed Brady information and held that “the individual prosecutor has a duty
to learn of any favorable evidence known to the others acting on the government’s behalf in the case,
including the police.” Id. at 437. The Court concluded that a Brady violation can occur even if
undisclosed evidence is “known only to police investigators and not the prosecutor.” Id. at 438.
Four years later, the Supreme Court invoked Kyles in a case involving a state prosecutor who
was unaware of his state detective’s exculpatory notes. Strickler v. Greene, 527 U.S. 263 (1999).

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While the state of Virginia argued that the prosecutor had an “open file” policy and thought he had
fulfilled his Brady obligation, the Court reiterated that the prosecution has a duty to uncover and
disclose to the defense any exculpatory evidence known to a police investigator, whether or not
known or available to the prosecutor. Id. at 280-81 (citing Kyles, 514 U.S. at 438); see also
Youngblood v. West Virginia, 547 U.S. 867, 869 (2006) (citing Kyles and Strickler with approval).
In light of Kyles and Strickler, the Department issued policy guidance, which states:
It is the obligation of federal prosecutors, in preparing for trial, 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 and prosecution of the criminal case against
the defendant.
USAM § 9-5.001. This duty to search the files of the entire prosecution team also extends to
information prosecutors are required to disclose under Federal Rules of Criminal Procedure 16 and
26.2 and the Jencks Act.
In most cases, “the prosecution team” will include all the agents and law enforcement officers
within the relevant district working on the case. Many cases arise out of investigations conducted
by multi-agency task forces or otherwise involving state law enforcement agencies. In such cases,
prosecutors should consider (1) whether state or local agents are working on behalf of the prosecutor
or are under the prosecutor’s control (or that of a federal agency, such as DEA); (2) the extent to
which state and federal governments are part of a team, are participating in a joint investigation, or
are sharing resources; and (3) whether the prosecutor has ready access to the evidence. Courts will
generally evaluate the role of a state or local law enforcement agency on a case-by-case basis, and
statements such as Office press releases thanking all participants could be conclusive in determining
whether a given entity was part of the “prosecution team” for discovery purposes.
In multi-district investigations, investigations that include both Assistant United States
Attorneys and prosecutors from a Department litigating component or other United States Attorney’s
Office, and parallel criminal and civil proceedings, this definition will necessarily need to be
adjusted to fit the circumstances. In addition, in complex cases that involve parallel proceedings
with regulatory agencies (such as the Environmental Protection Agency (EPA), Food and Drug
Administration (FDA) or Securities and Exchange Commission (SEC)), or other non-criminal
investigative or intelligence agencies, the prosecutor must consider whether the relationship with the
other agency is close enough to make it part of the prosecution team for discovery purposes.
Practice Tip: The AUSA should be aware of public statements made
by the United States Attorney or his spokespersons concerning partnerships with

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other law enforcement agencies in determining who should be considered part of the
prosecution team. For example, was ICE or the Coast Guard present for a press
conference or part of a press release at the inception of the case? If so, it is highly
likely that the court would hold us responsible for anything in those agencies’ files.
Factors To Consider in Determining the Scope of the Prosecution Team
o Whether the prosecutor and the agency conducted a joint investigation or shared
resources related to investigating the case;
o Whether the agency played an active role in the prosecution, including conducting
arrests or searches, interviewing witnesses, developing prosecutorial strategy,
participating in targeting discussions, or otherwise acting as part of the prosecution
team;
o Whether the prosecutor knows of and has access to discoverable information held by
the agency;
o Whether the prosecutor has obtained other information and/or evidence from the
agency;
o The degree to which information gathered by the prosecutor has been shared with the
agency;
o Whether a member of an agency has been made a Special Assistant United States
Attorney;
o The degree to which decisions have been made jointly regarding civil, criminal, or
administrative charges; and
o The degree to which the interests of the parties in parallel proceedings diverge such
that information gathered by one party is not relevant to the other party.

Having identified the scope of the prosecution team, the AUSA should collect from the
members of the team all information that is required to be produced under this Policy and by Federal
Rules of Criminal Procedure Rules 12 and 16; the Jencks Act and Federal Rule of Criminal
Procedure 26.2; FRE 404(b) and 413-14; and Brady and Giglio.

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B.

AUSA’s Obligation to Review Potentially Discoverable Information

When practical, AUSAs should make every effort to personally review all
discoverable information before it is produced, even if the information is gathered and organized by
others working on the case, including legal assistants, paralegals, agents, analysts, or other law
enforcement personnel. In cases involving voluminous documents or computerized information,
personal review by the AUSA may be impossible. In such instances, the AUSA is advised to meet
with those who will be assisting in gathering discovery to develop a discovery plan and should
thereafter closely oversee the gathering and production of discovery to ensure that all discoverable
information is identified and produced, or made available to the defense for inspection and copying.
The AUSA should always remember that ultimate responsibility for the production of all
discoverable information lies with the AUSA, and that it is our license that is on the line.
IV.
Where to Look
Potential Sources of Discoverable Information
The discovery-gathering process should include a review of at least the following
potential sources of discoverable information:
A.
Evidence and Information Gathered During the Investigation. It would
seem to go without saying, but AUSAs should review all evidence and information gathered during
the course of the investigation, including, but not limited to, information and evidence gathered via
search warrant, subpoena (grand jury, administrative, Inspector General, etc), Title III wiretaps,
consensual /monitorings, jail calls, surveillance, and witness interviews. If the volume of evidence
makes it impractical for the AUSA to review all the evidence, this obligation may be satisfied by
making the evidence available to the defense for inspection and copying, and carefully documenting
the times and means by which the evidence was made available.
B. Investigative Agency’s Files, including police files. All substantive case-related
information in the possession of an agent who is part of the investigative team should be reviewed
by the AUSA to determine whether it should be disclosed as part of discovery. The search for
information should not be limited to formal investigative reports such as FBI 302s, DEA-6s, IRS
MOIs, etc. The investigative agency may also have substantive case-related information in other
formats or locations that an agent may not consider to be part of the “investigative” file, such as
electronic communications (ECs), searchable electronic databases, inserts, emails, or other forms of
electronic communications. It may not be necessary to disclose the information in its original
format, but AUSAs should review the information in its original format, whenever possible.
Practice Tip: AUSAs should be mindful that, at least in the case of
the Baltimore City Police, different divisions have differing practices concerning
retention of files. For example, Homicide detectives maintain their own files, so a

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query to the district may not unearth a relevant homicide file. It may be necessary to
query more than one officer or supervisor to obtain the entire relevant file.
C. Agent Notes. Although it is not necessary to turn over an agent’s handwritten
notes that have been incorporated into a 302 as part of Rule 16 discovery or the Jencks Act, see, e.g.
United States v. Hall, 93 F. 3d 126, 131 (4th Cir. 1996), it is necessary to preserve them in the event
that the accuracy of the related formal report become an issue. AUSAs should review the agent’s
notes of critical interviews, particularly interviews of the defendant, where the exact wording may
be significant. If the notes contain favorable information that is not memorialized in a formal report
or any information that is materially inconsistent with the formal report, the notes or the information
should be produced.
Practice Tip: Remember that agent notes are not maintained in the “case
file, but, in the case of the FBI, for example, are kept separately in “1-A” envelopes. If you
want to examine the agent’s notes, you will have to require the agent to produce the 1-As
to you.

D.
Confidential Informant (CI)/Witness (CW)/Human Source (CHS) Files.
If a person who has been enrolled as a CI or CHS is going to be required to testify, these files will
likely contain Giglio information, such as witness payments and criminal conduct which should be
disclosed to the defense or to the court for a ruling on whether it should be disclosed to the defense.
AUSAs should make arrangements with the investigative agency to review the file(s) personally.
This will usually involve the AUSA going to the agency to review the files on site, as they will not
generally be copied or released outside the office. The Criminal Chief is the Confidential Human
Source (CHS) coordinator for the FBI, and is given notice of any arrests involving CHSs, so the
AUSA may wish to check with her first.
E. Interview Reports of Testifying Witnesses. It is not always possible to identify
Brady and Giglio particularly when the theory of the defense is not readily apparent. Furthermore,
sometimes it is only the cumulative effect that renders the information relevant in the context of
Brady or Giglio. AUSAs should always review witness interviews for potential Brady or Giglio.
A witness interview may contain Brady/Giglio information if it discloses that the witness expects
a benefit from cooperating, or indicates that the witness has given materially conflicting information
or information that materially conflicts with another witness’s statement, or failed to tell the whole
truth from the beginning, or failed to advise the interviewing agent of certain key facts during an
interview.
AUSAs should be particularly sensitive to the potential for inconsistent statements
if the same witness has been interviewed repeatedly(progressive truth-telling). Some cooperating
witnesses may not tell all they know the first time they are interviewed. If a witness initially denies
or minimizes his knowledge of or involvement in criminal activity, and thereafter provides
information that is materially broader or different, the fact that the witness provided materially
different information should be memorialized, even if the variance occurs within the same interview,
and should be provided to the defense as Giglio information.

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The duty to disclose to the defendant the substance of what a witness has said during
interviews, debriefings, or informal discussions cannot be avoided by failing to memorialize these
events. If any such events occur that are not memorialized in an interview report, the AUSA should
determine what the witness said during the session and disclose the content of the witness’s
statements to the defense. AUSAs should emphasize to agents the importance of memorializing all
impeaching information.
F. Brady / Giglio Information in the Form of Material Inconsistencies Developed
During Pretrial Witness Interviews. AUSAs should disclose information learned during pre-trial
witness preparation that is materially inconsistent with information provided by the same or a
different government witness. This does not mean that every time a witness supplies greater detail
about an event that the new information is necessarily impeaching, but if it differs materially from
what the witness has said on other occasions, it should be disclosed through a report of the interview
prepared by the agent, or through a letter from the AUSA to the defense. Regardless, the AUSA and
the agent should reach a clear understanding on who will memorialize any impeaching or
inconsistent information, and the AUSA should ensure that the inconsistency is disclosed to the
defense in a timely manner.
Practice Tip: In the Stevens prosecution, which was dismissed on the
motion of Attorney General Holder because of multiple discovery lapses, one
such lapse occurred where an important government witness recalled a
significant event while testifying that he had failed to recall an event in an
early debriefing session. The government did not disclose the inconsistency.
When prepping your witnesses, be sure to note and explore with the witness
any material changes from their grand jury or early statements, and disclose
the difference to the defense.
G.
Interviews of Non-Testifying Individuals. Sometimes during the course of
an investigation, an agency will conduct literally hundreds of interviews, very few of which turn out
to be relevant to the ultimate case. (Example: McVeigh) Because the very fact that the agency
identified a different suspect, or failed to identify the defendant as a suspect could be Brady, the
AUSA should at least review all 302s of non-testifying individuals. In general, AUSAs are not
required to produce 302s of non-testifying individuals unless the reports contain exculpatory
information or information inconsistent with or otherwise impeaching of a testifying witness or the
government’s theory of the case.
H. Prosecutor’s Notes. A prosecutor’s notes of witness prep are most likely going
to be protected from discovery by privilege rules and Federal Rule of Criminal Procedure 16(a)(2).
AUSAs should be mindful, however, that notes that contain substantially verbatim quotes of what
a witness said during an interview (Jencks), or favorable information (Brady/Giglio), might have to
be turned over. AUSAs preparing for trial should always review their own notes to see if they
disclose any inconsistencies on the part of witnesses or other discoverable information. If the
discoverable information in the AUSA’s notes is contained in materials otherwise provided to the
defense (e.g., 302s, agent’s notes, letter to defense), that should suffice. It is possible, however, that
if the exact nature of the information contained in the notes becomes an issue in the case, the court

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may review the notes in camera.7 AUSAs should always avoid having substantive interaction with
witnesses without an agent or other person present who can serve as a witness to the exchange. If
an issue arises in a case regarding the contents or discoverability of a prosecutor’s notes, the AUSA
must consult with a supervisor.
I. Documents or Evidence Gathered by Civil Attorneys and/or Regulatory
Agencies in Parallel Civil Investigations. If civil attorneys and/or regulatory agencies involved
in parallel civil investigations are deemed to be part of the prosecution team, AUSAs must also
gather and review any and all information and evidence from them that could be discoverable using
the criteria set forth in the factors set forth above and in the DAG’s Criminal Discovery guidance
memo.
J. Case-Related Communications (emails, tweets, text messages, memoranda,
notes). Because email communications from or between agents, or between agents and witnesses,
may not be as complete or drafted with the same degree of focus and care as formal investigative
reports, and may have the unintended effect of circumventing the investigative agency’s established
procedures for writing and reviewing reports, AUSAs should remind investigative agents that, unless
circumstances dictate otherwise, they should communicate substantive information in the form of
a formal investigative report, rather than an email.
However, recognizing that email is ubiquitous, the AUSA should review all substantive caserelated communications, whether e-mails, text messages, voice messages or the like, and should
determine whether disclosure in accordance with the rules and this policy is required.
Practice Tip: AUSAs should develop the habit of reminding agents
and witnesses not to communicate about cases via email, voice messages,
IMs, tweets, texts or other forms of electronic communication. It is perfectly
fine to use email for scheduling, but you do not want to find yourself in the
position of the AUSA whose agent, during a proffer, texted another agent a
colorful message casting aspersions on the profferor (and eventual
government witness).
K.
Personnel and Disciplinary Files that May Contain Potential Brady or
Giglio Information Relating to Law Enforcement Witnesses. Law Enforcement Giglio issues are
discussed in detail above at 12. AUSAs must complete a Giglio checklist for each testifying officer
in every case, and should determine whether each potential law enforcement witness has on- or offduty instances of misconduct, including pending investigations, that may qualify as potential
impeachment or exculpatory information. Additionally, it is wise to inquire of agents and other law
See United States v. Jones, 620 F. Supp.2d 113 (D. Mass. 2009); United States v. Jones, 2010
WL 565478 (D. Mass. February 19, 2010); United States v. Livingstone, 576 F.3d 881 (8th Cir.
2009); United States v. Reid, 300 Fed.Appx. 50 (2d Cir. 2008); United States v. Campos, 20 F.3d
1171 (5th Cir. 1994 ) (unpublished).
7.

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enforcement witnesses whether they have Facebook or MySpace pages or personal websites which
may contain information that has to be disclosed.
Practice Tip: There have been instances where officers or agents have
made racist or biased remarks on personal Facebook pages, or where they
have made statements about an investigation on such social networking
media. We need to uncover and disclose these.
Practice Tip: As stated above in footnote 6, there may be instances
where an officer is under investigation but does not know it. For this reason,
it is wise to run the names of any officers past the Giglio officer, just to be
sure that there is not something covert, and to consider how such information
might be handled.
L. Presentence Reports. AUSAs should be mindful that if a witness is or was a
defendant in federal court, there will be a Presentence Report (PSR) relating to that witness. The
PSR may contain Jencks, Brady, or Giglio. The court has not required disclosure as a general rule,
since the PSR is deemed to be in the possession of the court, not the prosecution, but it is still a wise
practice for the AUSA to review carefully the PSR of any witness, and to seek the court’s guidance
in camera and that of the United States Probation Office, if the AUSA believes that the PSR may
contain discoverable information that is not available from any other source.
M. Databases. As government attorneys, we have access to a number of databases
which may contain discoverable exculpatory or impeachment information. There are many
databases to which we have access, including NCIC, FINCEN, CATS, SARs, ACS, MAGLOCLEN,
MCAC and state databases, and if there is a law-enforcement reason to query all or some of these
databases, the court could find that we have an obligation to search for Brady or Giglio material.
Practice Tip: AUSAs should be aware that the defense bar and the
courts sometimes assume that there is a global government database where, with a
couple of clicks, the government can find out everything about anybody. That isn’t
so, of course, and it is not legally required for an AUSA to consult every known
database in a hunt for Giglio. To date, we have not been required to run tax histories,
for example, on government witnesses. We currently have neither the resources nor
the expertise to conduct comprehensive database searches for discovery purposes on
every witness in every case, but AUSAs should be aware that this is an issue that may
come up. If you have reason to believe that there may be database files on a witness
that could contain Brady or Giglio, you should talk to your supervisor and take steps
to conduct a tailored search. The United States District Court for the Northern
District of Illinois recently granted a new trial in a case where a search of an FBI
database to which AUSAs do not have access would have disclosed that the
government’s key witness was actively dealing drugs in a neighboring district.
United States v. Sanchez, 2009 WL 5166230 (N.D. IL 2009) No. 07-CR 0149.

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V.
How
Manner of Production and Record-Keeping
It is essential that AUSAs carefully document everything they provide in discovery, because,
as important as it is to ensure that the defendant has everything he needs to obtain a fair trial, it is
equally important for us to be able to demonstrate that we have complied with the law. Sometimes
discovery challenges are raised years after conviction, when without a good record, it is nearly
impossible to reconstruct, let alone defend, what the AUSA did or did not disclose.
Under no circumstances should an AUSA represent that s/he has provided “open file”
discovery. Rather, the AUSA should make a meticulous record of every item turned over.
A.

Manner of Production

1.
Documents: AUSAs should maintain a record of all documents, photographs,
transcripts, etc. provided to the defense, whether by Bates numbering the pages, making an exact
duplicate of the materials turned over, or, by scanning discoverable documents and producing them
electronically in a format that allows the documents to be searched by a word or name. If providing
discovery on discs, the AUSA should make a read-only copy that cannot be over-written as evidence
of what s/he provided to the defense. Disks containing electronic data should be well-labeled so that
they can readily be identified.
If the discoverable documents in a case are too voluminous to be scanned, the documents
should be made available to the defense for inspection and copying, and a record should be made of
when the documents were made available and when and for how long the defense reviewed the
documents. The investigative agent should not, however, note or make any record of what exact
documents the defense attorney reviewed or copied. It is helpful to have the material organized so
that a defense attorney does not needlessly waste time going through it. Boxes can be labeled, for
example, “Search of 123 Main Street,” “Search of ABC Bank Offices,” “Phone Records,” etc.
a. Transcripts: If transcripts of wiretap or consensual conversations are provided
in discovery, the AUSA should obtain a stipulation that the transcripts are in DRAFT FORM, and
being provided as courtesy to counsel only, and that counsel will not cross-examine or make any
motions based on any discrepancies between the draft transcript and the ones used at trial. This is
because transcripts always evolve with multiple hearings, and as the transcripts are not evidence, it
is only a courtesy to provide them to the defense.
2.
Non-documentary evidence, such as objects, clothing, drug packaging, or
photographs should be made available to the defense for inspection and photographing, and the
AUSA and agent should meticulously document the times and places when the defense reviewed the
evidence.

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a. Hard Drives: For an entire computer imaged pursuant to warrant, AUSAs should
consider making a forensic image available to the defense by allowing the defense to supply a blank
hard drive onto which the tech agent would copy the forensic image. It is an open question as to
what portions of imaged computers to disclose to the defense if the warrant authorized the
government to review only limited files.
3.
Video and Audio Recordings. 18 U.S.C. § 2517 governs the disclosure of
the contents of wire oral or electronic intercepts. Disclosure can be made only upon court order.
Assuming that the wire has been shut down and sealed, and an appropriate order entered, AUSAs
should make copies of all recordings for the defense. See above for how to handle transcripts.
Practice Tip: The criminal paralegals are experienced and
knowledgeable about producing discovery in electronic form. AUSAs should feel
free to consult with them in developing a discovery plan, and should take advantage
of their expertise in training the agents.
B.

Record-Keeping

AUSAs should keep a written record in the criminal case file of all discovery produced to
the defense and all evidence made available for inspection and copying. The AUSA should use a
discovery production letter to memorialize in detail the discovery that was provided or the items or
material that was made available for inspection or copying. All production letters should be
maintained in the criminal case file.
C.

Privacy Protection: Redacting Documents

All personal identifiers should be redacted from discovery, including, but not limited to,
names of minors, dates of birth, social security numbers, taxpayer identification numbers, home
street addresses, telephone numbers, Medicare or Medicaid ID numbers, financial account numbers,
or any other identifier which may improperly disclose private or sensitive information. Federal Rule
of Criminal Procedure 49.1, which contains direction for redacting documents filed with the court,
should be used as a starting point for the redaction of documents that will be produced in discovery.
If the volume of discovery is so great that the redaction process will take so long that the
production of discovery will be delayed, AUSAs may wish to consider seeking an agreed protective
order at the discovery stage.
D. Handling Discovery in Child Pornography Cases
Title18 U.S.C. § 3509(m) requires that media containing child pornography remain
in government custody at all times, and provides that a court should deny any defense request for the
copying or reproduction of material containing child pornography, so long as the government
provides a reasonable opportunity for the defense to inspect the evidence. Accordingly, in a child
pornography case, discovery will be made by having the defense attorney (and defendant, if he is not

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detained) go to a place designated by the government to meet with the agent and be shown the
images. AUSAs should not handle or maintain child pornography evidence in their files or in the
USAO. Again, the AUSA should document carefully the dates and times on which the evidence was
produced for review.
VI. Special Considerations
A. National Security Matters / Classified materials
Although all criminal cases present the same Constitutional obligations, 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 could 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 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.

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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.
B. Capital Cases
Capital cases present additional discovery considerations. First, under 18 U.S.C. § 3432, the
government is obliged to provide a witness list to the defense at least three days before trial that
includes the names and “place of abode” of the witnesses to be produced to “prove the indictment.”
The court may allow for an exception if the court finds by a preponderance of the evidence that
providing the list may jeopardize the life or safety of any person. It is strongly recommended that
any AUSA complying with this provision both (1) coordinate closely with the Victim Witness unit,
so that the witnesses can be alerted that their names and addresses have been disclosed to the
defense, and (2) obtain a protective order so that the list goes to counsel only, and cannot be
disseminated further.
Second, in a death penalty prosecution, the notion of what constitutes Brady material is
considerably expanded to encompass materials that may mitigate in the sentencing phase. Any
mitigating information should be disclosed promptly and comprehensively. Statutory mitigating
factors are set forth in 18 U.S.C. § 3592(a) and any evidence that tends to prove any of these
mitigating factors constitutes Brady material in this context. Equally important, any evidence that
would support a non-statutory mitigating factor would also constitute Brady material. This might
include evidence of an abusive childhood, borderline IQ, organic brain damage or mental health
issues not rising to the level of impaired capacity to appreciate the wrongfulness of the defendant’s
actions.