U.S. Department of Justice

Memorandum

United States Attorney
District of Minnesota

Subject

Date

District of Minnesota
Criminal Discovery Policy

October 15, 2010

To

From

All Criminal AUSAs

B. Todd Jones
United States Attorney
INTRODUCTION

On January 4, 2010, the Department issued guidance for
prosecutors regarding criminal discovery. The guidance is intended
to “establish a methodical approach to consideration of discovery
obligations that prosecutors should follow in every case to avoid
lapses that can result in consequences adverse to the Department’s
pursuit of justice.”
The guidance directs each United States
Attorney’s Office to establish a written discovery policy.
The Department recognizes that discovery practices vary by
district.
The directive, therefore, permits each district to
establish a discovery policy that takes into account local
practice. This memorandum outlines the discovery policy for the
District of Minnesota.
This memorandum provides only internal
guidance for the United States Attorney’s Office for the District
of Minnesota. It is not intended to, does not, and may not be
relied upon to create any substantive or procedural rights
enforceable at law by any person in any administrative, civil, or
criminal matter or case. Nor are any limitations hereby placed on
the otherwise lawful litigation prerogative of the United States
Department of Justice. See USAM § 1-1.100. AUSAs are expected to
make reasonable and good faith efforts to comply with this policy.
This policy shall apply in all criminal cases arising in the
District of Minnesota, except those involving national security,
including terrorism, espionage, counterintelligence, and export
enforcement.1
1

National security cases can present unique and difficult
criminal discovery issues with far reaching implications for
national security and the nation's intelligence community. The
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This District’s policy on the disclosure of information and
evidence is intended to be broader than what is required by
relevant statutes, rules, and the Constitution.
However, in
certain cases, countervailing considerations, including risk of
harm to victims or witnesses, obstruction of justice, and privacy
concerns, counsel against broad and early disclosure. In those
cases where an AUSA wishes to deviate from the discovery principles
set forth in this policy and restrict discovery, supervisory
approval is required and such approval must be documented in the
case file.
In certain instances, for example in the middle of
trial, an AUSA may be unable to obtain supervisory approval to
deviate from this policy.
In those instances, the AUSA should
obtain supervisory approval as soon as practicable. No approval is
necessary to provide discovery that is broader than provided for in
this policy.
DISTRICT OF MINNESOTA DISCOVERY POLICY
1.

Gathering Discoverable Information - The Prosecution Team

The discovery obligations of federal prosecutors are generally
established by Federal Rules of Criminal Procedure 16 and 26.2, 18
U.S.C. § 3500 (Jencks Act), Brady, and Giglio. In addition, the
U.S. Attorney’s Manual describes DOJ’s policy for disclosure of
exculpatory and impeachment information.
See USAM §§ 9-5.001
("Policy Regarding Disclosure of Exculpatory and Impeachment
Information") and 9-5.100 ("Policy Regarding the Disclosure to
Prosecutors of Potential Impeachment Information Concerning Law
Enforcement Witnesses (‘Giglio Policy’)").

Department of Justice has developed special guidance for those
cases.
See 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." AUSAs should review that guidance and should
consult with their supervisors and the National Security Division
of the Department of Justice with respect to criminal discovery in
those cases.
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The first question to be asked in every case is where to look
for discoverable information.
Department policy requires
prosecutors to seek discoverable information from all members of
the prosecution team. In most cases, the prosecution team will
include the federal agents and state and local law enforcement
officers working on the case. USAM § 9-5.001.
In determining who should be considered part of the
prosecution team, an AUSA must determine whether the relationship
is close enough to warrant inclusion for discovery purposes. When
in doubt, consult with your supervisors and/or the District’s
Discovery Coordinator. Examples include:
!

Multi-district investigations – the prosecution team
could include the AUSAs and agents from the other
district(s).

!

Regulatory agencies – the prosecution team could consist
of employees from non-criminal investigative agencies
such as the SEC and FDIC.

!

State/local agencies – a state and local officer is a
part of the "prosecution team" if the AUSA or federal
agents are directing the officer's actions or if the
state or local officer participated in the investigation
or gathered evidence which ultimately led to the charges.

Considerations in determining whether an agency or entity
should be considered part of the "prosecution team":
!

Whether the AUSA or investigative agency conducted a
joint investigation or shared resources with the other
agency or entity;

!

Whether the other agency or entity played an active role
in the AUSA's case;

!

The degree to which information or evidence has been
shared or exchanged with the other agency or entity; and

!

Whether the AUSA has control over or has directed action
by the other agency or entity.

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AUSAs should take an expansive view and err on the side of
inclusiveness in deciding who should be considered part of the
"prosecution team." Additional guidance on this issue is set forth
in the DAG’s January 4, 2010, Guidance for Prosecutors Regarding
Criminal Discovery.
2.

What to Review Once the Prosecution Team is Defined

All evidence and other potentially discoverable material
gathered during the investigation, whether in our custody or the
custody or control of the other members of the prosecution team
should be reviewed. In most cases it is not practical for the AUSA
to conduct the review.
In such cases, the prosecutor should
develop a process for review to ensure that discoverable
information is identified. It is the AUSA, however, who makes the
ultimate disclosure decision.
a.

Specific Issues
1.

The investigative agency's file

For DOJ law enforcement agencies, AUSAs should have access to
the agencies’ investigative files. AUSAs should review the files
or request production of potentially discoverable materials from
the case agents. With respect to outside agencies, AUSAs should
request access to files or request production of all potentially
discoverable material.
2.

Confidential
Informant,
Confidential
Witness,
Confidential Human Source, and Confidential Source
Files

For testifying witnesses, the AUSA should ensure that the
entire file for each witness is reviewed, not just the part
relating to the current case.
If an AUSA believes that the
circumstances of the case warrant review of a non-testifying
source's file, the prosecutor should follow the agency's procedures
for requesting the review of such a file.
If issues develop
regarding access to such files, contact the District’s Discovery
Coordinator.

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3.

Evidence

Generally, all evidence and information gathered during the
investigation should be reviewed for discoverable material,
including all evidence obtained via subpoenas, search warrants, or
other legal process. In cases involving voluminous evidence, this
requirement may be met by permitting defense counsel access to all
of the material.
4.

Regulatory Agency/DOJ Civil attorney files

If an AUSA has determined that a regulatory agency is a member
of the prosecution team or has information that the regulatory
agency has material discoverable evidence, the AUSA should arrange
for that agency’s files to be reviewed for discoverable material.
3.

Timing of Disclosures
a.

Rule 16 and Rule 12 Discovery

Every Magistrate Judge in the District orders at arraignment
the production of Rule 16 discovery by a certain date. You should
comply with the order by either sending the Rule 16 material to
defense counsel or making the Rule 16 material available for
review. A form letter is available for your use on hotdocs.
It is the policy of the District to turn over Rule 12 material
(e.g., search warrants, reports of search and seizure and arrests,
and witness identification) to the defense with the Rule 16
material. It is in our interest to provide such notice by turning
over evidence that may be the subject of a motion to suppress as
soon as possible. Furthermore, if you have a case in which there
is evidence that is not covered by a discovery rule but that may be
the subject of a motion to suppress (for example identification
procedures), you should turn the material over with the Rule 16
material.
AUSAs
should
always
consider
security
concerns
of
victims/witnesses when making discovery timing decisions as well as
protecting ongoing investigations, preventing obstruction of
justice, investigative agency concerns and other strategic
considerations that improve our chances of reaching a just result
in our cases.
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b.

Expert Disclosures

Rule 16 requires disclosure upon the request of the defendant
of a written summary of a testifying expert’s expected testimony,
including the expert’s opinions, bases and reasons for the
opinions, and the expert’s qualifications. In most cases, expert
disclosures are not made by the Rule 16 deadline in the arraignment
order because either the government has not determined whether an
expert will testify or the expert has not yet been identified.
Therefore, Magistrates typically set a date for expert disclosures
that is tied to the trial date. These disclosure dates are not
uniform and vary by Magistrate, and in certain cases no disclosure
date is set.
Thus, with respect to expert disclosures, AUSAs
should make expert discloses in compliance with any pre-trial
order, but in the absence of such an order, no later than one week
prior to trial.
c.

Confidential informants

Roviaro v. United States, 353 U.S. 53 (1957), and its progeny
mandate the disclosure of the identity of government informants
under a narrow set of circumstances.
As a general rule, the
government does not have to disclose the identity of an informant
unless the informant has relevant information that is helpful to
the defense, i.e., he or she was an eyewitness to the charged
offense.
Informants who merely act as tipsters should never be
disclosed.
In those instances where we are required to disclose the
identity of the informant, Magistrates typically require the
government to make the informant available to the defense.
A
number of Magistrates set a date by which the informant must be
identified and made available for an interview. With respect to
these disclosures, AUSAs should make informant disclosures in
compliance with any pre-trial order, but in the absence of such an
order, no later than one week prior to trial.
d.

Federal Rules of Evidence 404(b), 413 and 414

Federal Rule of Evidence 404(b) requires reasonable pretrial
notice of other crimes or bad act evidence to be offered by the
United States.
Given that it would likely be held to be
ineffective assistance of counsel not to make such a request,
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notice should be provided even if no request is made.
Similar
notice obligations exist for introduction of evidence in sexual
abuse cases.
FRE 413 authorizes introduction of evidence of
similar crimes in sexual assault cases, and FRE 414 allows
introduction of similar evidence in child molestation cases.
Both FRE 413 and 414 mandate that the government must give
notice of its intention to offer such evidence and disclose the
evidence to the defendant at least 15 days prior to trial, and
AUSAs must comply with this requirement.
FRE 404(b) mandates
reasonable notice without a specific deadline. However, in many
cases Magistrates set a specific deadline for disclosure of
404(b)-type evidence. AUSAs should disclose FRE 404(b) evidence in
compliance with an pre-trial order, but in the absence of such an
order, no later than one week prior to trial.
e.

Jencks Act Material

Although not required by the Jencks Act, the policy in the
District is to disclose Jencks Act material three days before
trial.
In many cases, however, AUSAs should consider giving
broader and earlier discovery than required by the policy because
it fosters a speedy resolution of many cases. Early and broad
disclosure also lessens or negates any issues concerning whether
the Jencks Act material contains Brady or Giglio information. An
AUSA must obtain supervisory approval to disclose Jencks Act
material less than three days before trial. Withholding of such
material should be based on security concerns of victims and
witnesses,
protecting
ongoing
investigations,
preventing
obstruction of justice, investigative agency concerns, or other
strategic considerations that improve our chances of reaching a
just result.
Eighth Circuit law is clear that agent interview reports are
not Jencks Act material for the individual interviewed unless the
individual adopted the report or the report is a substantially
verbatim recitation of what the individual said during the
interview.
While we should never concede that such interview
reports are Jencks, the policy in the District is to disclose such
interview
reports
because
they
may
contain
Brady/Giglio
information. Therefore, if an AUSA seeks to disclose interview
reports for testifying individuals that are not technically Jencks

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Act material less than three days before trial, the AUSA must
obtain supervisory approval.
An AUSA is not required to disclose interview reports for nontestifying individuals. However, AUSAs should err on the side of
disclosing such reports absent concerns related to witness safety,
obstruction of justice, ongoing investigations, or legitimate
privacy concerns.
Rule 26.2 applies the Jencks Act to suppression hearings, and
to the extent specified in the rules, to other proceedings such as
preliminary, sentencing, and detention hearings. The rule requires
production of the statement of a witness, other than the defendant,
after the witness has testified upon motion of the party who did
not call the witness.
AUSAs must be prepared to provide such
statements to defense counsel at these various hearings.
f.

Brady and Giglio

AUSAs are constitutionally required to provide Brady and
Giglio material to defense counsel.
Government disclosure of
material exculpatory and impeachment evidence is part of the
constitutional guarantee to a fair trial.
Department policy set forth in USAM 9-5.001 requires
disclosure by AUSAs of information beyond that which is “material”
to guilt. Under Department policy 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.

!

Additionally, a prosecutor must disclose information that
either casts a substantial doubt upon the accuracy of any
evidence — including but not limited to witness testimony
— the prosecutor intends to rely on to prove an element
of any crime charged, or might have a significant bearing
on the admissibility of prosecution evidence. This
information must be disclosed regardless of whether it is

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likely to make the difference between conviction and
acquittal of the defendant for a charged crime.
In this District, we interpret Brady and Giglio broadly. If
an AUSA has any doubt whether a piece of evidence is exculpatory,
the evidence should be disclosed.
The Criminal Chief, Deputy
Criminal Chiefs, or the Discovery Coordinator should be consulted
as issues arise.
With respect to the timing of disclosures, the District
follows DOJ policy. DOJ policy directs disclosure of exculpatory
(Brady) information “reasonably promptly after it is discovered,”
and directs that disclosure of impeachment information (Giglio) be
made before trial.
USAM 9-5.001.
Delaying disclosure per the
Jencks Act should be done only when necessary due to witness safety
or other security concerns.
An AUSA must obtain supervisory
approval not to disclose impeachment information before trial or
not to disclose exculpatory information reasonably promptly because
of security of other concerns. Such approval must be documented in
the case file.
1.

Giglio Policy for Law Enforcement Witnesses
a.

Federal Officers

In all cases in which federal law enforcement officers are
scheduled to provide a sworn statement or testimony the AUSA will
satisfy the requirements of the Giglio policy by either requesting
impeachment information directly from the witness or affiant or by
making a written request to the employing agency. If the AUSA is
obtaining the information directly from the agent, the Giglio form
currently available on hotdocs should be used to conduct this
inquiry. If the agent answers yes to any of the Giglio questions,
the AUSA should contact the Discovery Coordinator. The Discovery
Coordinator will contact the agency’s Giglio contact to obtain the
relevant information. If the AUSA seeks a written request to the
employing agency, the request will be made by the Discovery
Coordinator. The AUSA is responsible for providing the Discovery
Coordinator with relevant information to make the request. The
AUSA should maintain documentation in the file to confirm that the
AUSA completed the Giglio inquiry with respect to each testifying
law enforcement officer.

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When potential Giglio information exists, the AUSA should
consult with the Discovery Coordinator, the Criminal Chief, and/or
a Deputy Criminal Chief to determine whether it is appropriate to
disclose the information, withhold the information, or seek ex
parte, in camera review by the court concerning disclosure.
b.

State and Local Officers

With respect to state and local officers, the AUSA will obtain
the information directly from the officers by reviewing with the
officers the questions on the Giglio hotdocs form. If the officer
answers yes to any of the Giglio questions, the AUSA should contact
the Discovery Coordinator who will contact the relevant law
enforcement agency to obtain the relevant information. Again, the
AUSA should document in the file compliance with this policy.
As set forth above, if potential impeachment information
exists, the AUSA should consult with the Discovery Coordinator,
Criminal Chief and/or Deputy Criminal Chief regarding whether and
how to disclose the information.
4.

Other Reoccurring Issues
a.

Agent’s Interview Notes

Agents typically make rough notes of witness statements during
interviews. They then prepare an interview report based on the
notes. Depending on agency policy, agents may retain their rough
notes.
It is the law of the circuit that these rough notes
generally are not deemed to be Jencks Act material of the
interviewed witness. If the notes are a faithful representation of
what is contained in the formal report of interview, AUSAs have no
duty to disclose the interview notes.
However, issues may arise when rough notes are inconsistent
with the formal interview report. If the notes depart materially
from what is contained in the formal report the notes may
constitute Brady or Giglio material. If an AUSA has information
that the interview notes may differ from the report of interview
and thereby contain Brady or Giglio material, the AUSA should
review the notes for disclosure issues. Disclosure of the notes
(or the content of the notes) should be considered after

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consultation with the Criminal Chief, a Deputy Criminal Chief, or
the Discovery Coordinator.
b.

Trial Preparation Witness Interviews

When preparing for trial, it is the practice of AUSAs in this
district to meet with witnesses prior to their testimony. During
this process, prosecutors and/or agents may make notes of the
statements made by the witnesses. These notes, which typically are
not memorialized in an interview report, may raise discovery
issues.
First, if the witness statement is noted in verbatim or
substantially verbatim form, it may constitute Jencks Act material
that must be produced.
Second, if the witness provides information that is arguably
exculpatory or makes a statement regarding a material fact that is
arguably inconsistent with a prior statement of that witness, the
AUSA must determine whether the information should be disclosed as
Brady/Giglio.
Whether information is exculpatory may not become apparent
until a later time or during trial. Prosecutors, therefore, should
retain their rough notes and be cognizant of the potential they may
contain Brady or Giglio information that may need to be disclosed.
When considering disclosure, the AUSA may consider providing
the information by way of letter or e-mail. The AUSA may also go
to the court and seek an in camera review of the information and
ask the court to determine whether the information constitutes
Brady or Giglio.
c.

Email

The use of email has become widespread.
AUSAs, law
enforcement agents, and other employees use email to communicate
about a variety of case related matters. While a valuable tool,
email may have significant adverse consequences if not used
appropriately.
The use of email to communicate substantive
case-related information in criminal and parallel criminal/civil
cases may trigger AUSAs’ responsibilities under the Jencks Act,

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Federal Rules of Criminal Procedure 16 and 26.2, Brady/Giglio, USAM
9-5.001, and the Federal Records Act (discussed more fully below).
Emails fall into three general categories: potentially
privileged communications; substantive communications; and purely
logistical communications.
Emails may be used to communicate with others regarding case
strategy, to seek approval or legal advice from supervisors or
others, to give legal advice, or to request that an agent,
paralegal, auditor, or other USAO personnel conduct certain
research, analysis, or investigative action in anticipation of
litigation. Such emails are "potentially privileged" and as such
may be protected from discovery.
An email that contains "substantive" case-related information
raises additional legal issues. AUSAs and other personnel must be
careful in the exchange of such email. They should avoid using
email to communicate substantive case-related information in
criminal and parallel criminal/civil cases whenever possible.
Because email communications from agents may not be as complete as
investigative reports, and may have the unintended effect of
circumventing the investigative agency's established procedures for
writing and reviewing reports, AUSAs should advise investigative
agents that, unless circumstances dictate otherwise, substantive
written communications from agents about cases should be in the
form of a formal investigative report, rather than an email.
Email may be used to communicate purely logistical information
and to send formal investigative reports as attachments, or to
communicate efficiently regarding non-substantive issues such as
scheduling meetings, interviews, and court appearances.
When substantive communications are sent via email, these
guidelines should be followed:
1.
If email is used to communicate substantive
case-related information with agents, victim/witnesses, or anyone
else, the email must be maintained in the case file or
electronically in an Outlook folder.
Alternatively, the AUSA
should
advise
the
agent
to
memorialize
the
substantive
communication in a written interview report.

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2.
As part of the discovery collection and review
process, AUSAs should routinely ask agents and others to provide
them with access to all emails that contain substantive
case-related information. This includes, but is not limited to,
communications between agents, and between agents, AUSAs, any USAO
personnel, or anyone else, just as any formal reports would be
collected and reviewed.
3.
While substantive emails need to be reviewed during
the discovery phase, any discoverable information may be disclosed
in a redacted or alternative form (e.g., a letter or memo) in
appropriate circumstances, particularly when agency policy or
practice disfavors disclosure of emails. Redaction may also be
appropriate if an email contains a mix of substantive, potentially
privileged communications, and purely logistical information.
4.
AUSAs and any USAO personnel who interact with
victims
and
witnesses
should
limit
email
exchanges
to
non-substantive matters such as the scheduling of interviews or
notification of dates and times of hearings.
Similarly, AUSAs
should strongly encourage agents to limit email exchanges with
victims or witnesses to non-substantive matters. Any substantive
information received from a victim or witness should be considered
potential Jencks Act material and also maintained for Brady/Giglio
review.
If USAO personnel other than the AUSA receives a
substantive email from a victim or witness, such email should be
forwarded to the AUSA(s) assigned to the investigation or case.
5.

Maintaining a record or disclosures

It is imperative that AUSAs maintain a record of the
disclosures made to defense counsel. The exact fashion in which an
AUSA maintains a record will change depending of the facts of the
case. For example, the AUSA may maintain a bates stamped copy of
all material disclosed, a disk of all material disclosed, or a
written record of the documents and evidence reviewed by counsel on
particular dates. An AUSA must maintain a record of disclosures
sufficient to counter a claim by defense counsel that a particular
document or piece of evidence was not disclosed.

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