U.S. Department of Justice
United States Attorney
District of Nevada

CRIMINAL DISCOVERY POLICY
Date: October 15, 2010

I.

Policy Summary and Background

On January 4, 2010, Deputy Attorney General Ogden issued a memorandum
entitled AGuidance for Prosecutors Regarding Criminal Discovery@ (ADAG Ogden Criminal
Discovery Guidance@). That same date, he issued a memorandum directing that USAOs
promulgate discovery policies governing several enumerated issues relating to criminal
discovery. This comprehensive discovery policy implements the directives of the Deputy
Attorney General.
This policy provides guidance on gathering, tracking, reviewing and producing
information to criminal defendants in accordance with statutory or procedural law and
case law, the Constitution, DOJ policy and local rules. These duties are defined in the
Federal Rules of Criminal Procedure Rules 12 and 16; the Jencks Act and Federal Rule of
Criminal Procedure 26.2; Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States,
405 U.S. 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 of the district and magistrate courts, in
particular Local Rule of Criminal Procedure (LRC) 16-1, which sets forth the structure and
procedural timing of pretrial discovery in this District. In some respects, this policy
requires broader production than the law and local rules. It counsels AUSAs to provide
broad 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. 1
The responsibility to produce all discoverable information in a criminal case lies
with the AUSA(s) 2 assigned to the case. To fulfill this responsibility, AUSAs should
consider several matters:
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What & When: What are the policies, rules, statutes and case law that
define what must be produced and when must it be produced? (See Part II.
Laws, Rules and Policy Governing the Production of Discoverable
Information (What Must Be Produced and When?))

1 The policies and principles set forth herein are not intended to have the force of law or to create or confer
any rights, privileges, or benefits to defendants. United States v. Caceres, 440 U.S. 741 (1979).

As used in this policy, AAUSA@ includes Special Assistant U.S. Attorneys and DOJ prosecutors
working on a case in this district.

2

 $

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.
(See Part III. Who is Part of the Prosecution Team: Gathering and
Reviewing Potentially Discoverable Information)

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Where to look: Once the prosecution team has been identified,
AUSAs must ensure that all discoverable information is located,
reviewed and produced as required, including agency investigative
and administrative files, CI/CHS files, emails, PSRs, law
enforcement Giglio, and other materials. (See Part IV. Potential
Sources of Discoverable Information)

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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, or some other form), and must
keep a detailed record of all discovery produced. (See Part V.
Manner of Production and Record-keeping)

As a general rule, the policies and disclosure principles set forth below do
not apply to cases involving national security or classified information. Please
consult Section V, infra, for the policies and principles related to disclosures of
national security information. In all other cases, any deviation from these policies
and principles requires supervisory approval.
II.

Laws, Rules and Policy Governing the Production of Discoverable
Information (What Must Be Produced and When?)

AUSAs must produce all discoverable information in accordance with
federal law, the local rules and DOJ policy. For the purposes of this
memorandum, discovery and discoverable information are not limited to Rule 16
information, but include all information and materials the government must
disclose to the defendant pursuant to Fed. R. Crim. P. 12 and 16; the Jencks Act
and Fed. R. Crim. P. 26.2; Fed. R. Evid. 404(b); Brady, Giglio; USAM 9-5.001 and
9-5.100; and the local rules.
A.

Federal Rules of Criminal Procedure Rule 12 and 16.

In accordance with LCR 16.1, unless a case is declared complex, the AUSA
assigned to a case shall confer with defense counsel after arraignment to
determine and to designate whether discovery in a case will be governed by a Joint
Discovery Agreement or a Government Disclosure Statement. If the AUSA
assigned to the case decides to proceed by a Joint Discovery Agreement, the
AUSA generally should offer to defense counsel, the Office’s standard Joint
Discovery Agreement. The Government will agree under the Joint Discovery
Agreement to:
(1) disclose all matters required by federal statute, rule, or the United States
Constitution, and

 (2) subject to any applicable work product protections, law enforcement
privileges, or protective orders, voluntarily disclose:
(a) any investigative reports describing facts relating to charges in
the indictment, and
(b) any audio or video recordings relating to the charges in the
indictment.
The AUSA should require under the agreement that the defense make any
reciprocal disclosures required by federal statute, rule, or the United States
Constitution.
In finalizing a Joint Discovery Agreement, the AUSA should confer with
defense counsel to determine the scope, timing, and method of the disclosures
required under LCR 16-l(b)(l)(i) and any additional disclosures upon which the
parties agree. The AUSA will endeavor to ensure that the parties comply with LCR
16-1 and file a Joint Discovery Agreement within five (5) days after arraignment,
except upon leave of Court. The AUSA shall make the disclosures required by
federal statute, rule, or the United States Constitution available within five (5)
calendar days of filing the Joint Discovery Statement. The AUSA shall make all
other disclosures to which he or she has agreed available within the times set forth
in the Joint Discovery Agreement. Notwithstanding any of the deadlines
delineated above, the disclosure obligations of the government continue
throughout the life of the proceedings.
If after considering the discovery policy of this office and with the
concurrence of his or her supervisor, the AUSA decides the best interests of the
justice and the prosecution require the withholding of disclosure subject to LCR
16-1 or the Joint Discovery Agreement, the AUSA will provide the defense counsel
with notice of the intention to withhold the disclosure, describing the nature of the
disclosure being withheld and the basis upon which it is being withheld in sufficient
detail to permit defense counsel to file a discovery motion.
In non-complex cases where (1) the AUSA after considering the discovery policy of
this Office and the DOJ determines that it is in the interests of the prosecution or in the
interest of the safety and privacy of the witnesses that the Government should not enter
into a Joint Discovery Agreement; or (2) defense counsel refuses to enter into an offered
Joint Discovery Agreement, the AUSA assigned to the prosecution shall file a
Government Disclosure Statement. In such cases, within five (5) calendar days of
arraignment, the AUSA shall endeavor to confer with defense counsel regarding the
timing, scope, and method of the disclosures and reciprocal disclosures required by
federal statute, rule, or the United States Constitution, and any additional disclosures
which will be made by the government. Within five (5) days of the conference, but in no
event more than ten (10) calendar days after the date of arraignment, the AUSA shall file
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 the Government’s Disclosure Statement, which shall include the following information:
(A) the date on which the parties discussed the Disclosure Statement, or an
explanation of why a discussion has not occurred;
(B) the scope, timing, and method of the government's disclosures required by
federal statute, rule or the United States Constitution; and
(C) the scope, timing, and method of any additional disclosures which will be made
by the government.
Before filing any motion for discovery, in compliance with LCR 16-1, the AUSA shall
attempt to confer with defense counsel in a good faith effort to resolve the discovery
dispute. The AUSA in any motion for discovery shall include a statement certifying that,
after personal consultation with defense counsel, the AUSA and defense counsel have
been unable to resolve the dispute without court action.
If at any time after arraignment, the Court on its own motion, or upon motion of the
parties, designates a case as complex, the AUSA shall endeavor, within five (5) days
following such designation, to confer with defense counsel to develop a Proposed
Complex Case Schedule, addressing the following:
(i) the scope, timing, and method of the disclosures required by federal statute,
rule, or the United States Constitution, and any additional disclosures that will be
made by the government;
(ii) whether the disclosures should be conducted in phases, and the timing of such
disclosures;
(iii) discovery issues and other matters about which the parties agree or disagree,
and the anticipated need, if any, for motion practice to resolve discovery disputes;
(iv) proposed dates for the filing of pretrial motions and for trial; and
(v) stipulations with regard to the exclusion of time for speedy trial purposes under
Title 18, United States Code, Section 3161.
The AUSA shall endeavor to ensure that the parties file the Proposed Complex Case
Schedule no later than five (5) days after conferring under Section 16-l(a)(2). If any
unresolved scheduling or discovery matters remains after conferring with defense
counsel, the AUSA, in accord with LCR 16-1, in the filing of the Proposed Complex Case
Schedule, shall ask the Court to enter an Order fixing the schedule for discovery, pretrial
motions, and trial, and determining exclusions of time under Title 18, United States Code,
Section 3161, or to conduct a pretrial conference to address unresolved scheduling and
discovery matters.
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 B.

Disclosure of Brady/Giglio.

The constitutional guarantee to a fair trial, as interpreted by Brady and Giglio and
their 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 of whether the defense makes a
request for such information. On October 19, 2006, the Department 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 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
assigned AUSA(s) must consider the cumulative impact of items of information. This
information and evidence includes the following:
1.

Exculpatory Information.

All exculpatory information known to or in the possession of the prosecution team,
regardless of whether the information is memorialized, should be disclosed to the
defendant reasonably promptly after the filing of the case or the discovery of the
information. In accordance with the directives of USAM 9-5.001, AUSAs should 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.C.1. This includes, but is not limited to, exculpatory information
contained in interview memoranda of testifying and non-testifying witnesses and in
internal emails, memos, and other reports. The exculpatory information need not be
provided in its original form; for example, it is sufficient to send a letter to defense counsel
advising of the exculpatory information in lieu of providing a copy of the original source
document or recording, which could be an email, letter, or other document or source.
2.

Impeachment Information.

Giglio v. United States, 405 U.S. 150 (1972), and its progeny, require the
Government to turn over to the defendant anything known to the Government which
would adversely impact the outcome of a trial in a material way. USAM 9-5.001 goes
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 beyond Giglio=s requirements and requires AUSAs to disclose anything that is material to
the witness's credibility, or Athat 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 Aregardless of whether the information . . .
would itself constitute admissible evidence.” USAM 9-5.001.
Examples of what must be turned over include inconsistent statements, promises
of leniency or immunity made to a witness, plea/cooperation agreements entered into
with a witness, any benefit provided to the witness by the Government, 3 payments to a
witness, any information that may be indicative of the witness=s bias including, but not
limited to, the witness=s incarceration, probation, or supervised release status, the prior
criminal record ("rap" sheet) of a witness, and other prior material acts of misconduct of a
witness.
For a fuller discussion of inconsistent statements see Part II. D. “Witness
Interviews, Brady and Giglio in Interviews of Testifying and Non-testifying Witnesses, and
Interviews of Non-testifying Individuals@ below.
3.

Timing of Disclosure.

a.

Pre-Charge Disclosures.
(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 Asubstantial evidence that
directly negates the guilt of a subject of the investigation.”
Impeachment Information: Although there is no legal duty to seek out
impeachment information from the prosecution team or present
impeachment information to a grand jury, if an AUSA is aware of
significant impeachment information relating to a testifying witness,
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, among other things.

3 Such benefits include a promise to be lenient on or not bring charges against a cooperating
witness=s family member or other person of significance to the cooperator.

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 (2)

Affidavits:

Exculpatory Information. If an AUSA is aware of substantial
exculpatory information at the time he or she is preparing an affidavit
in support of a search warrant, complaint, seizure warrant, or TIII, the
AUSA should disclose the information in the affidavit unless the
AUSA obtains supervisory approval not to do so.
Impeachment Information. If at the time an AUSA is preparing an
affidavit in support of a search warrant, complaint, seizure warrant or
TIII, 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 known prior judicial finding of a lack of credibility of an
affiant or person relied upon in the affidavit should be disclosed in
the affidavit.
b.

Post- Charge Disclosures:
(1)
Exculpatory Information:
After a defendant is
charged, exculpatory information should be disclosed reasonably
promptly upon its discovery. USAM 9-5.001.D.1. If an AUSA
discovers exculpatory information after conviction, sentencing and
appeal, the AUSA should discuss the proper way to handle the
matter with a supervisor.
(2)

Impeachment information:

(a)
Pre-Trial Hearings
Impeachment information
relating to government witnesses who will testify at a
preliminary/detention hearing, motion to suppress, 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).
(c)
Trial Impeachment information should be disclosed
Aat a reasonable time before trial to allow the trial to proceed
efficiently.@ USAM 9-5.001 D 2.
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 (d)

Sentencing USAM 9-5.001.D.3. requires:

AExculpatory 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 disclose such information no later than the date the court
issues its preliminary presentence (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)
Impeachment information should be disclosed at a
reasonable time before the hearing to allow the hearing to
proceed efficiently.
C.

Impeachment Information Relating to Law Enforcement Witnesses.

In some cases AUSAs may encounter Giglio issues with respect to law
enforcement witnesses who will be the affiant or a witness at a hearing or trial. For
example, an agent may have been found to have committed misconduct, or may be the
subject of a pending internal or criminal investigation. USAM 9-5.100 contains the
Department’s policy on obtaining and disclosing Giglio information relating to law
enforcement witnesses. The Giglio officer to assist with Giglio requests in the office
relating to law enforcement witnesses is (currently) AUSA Eric Johnson.
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.
1.

Obtaining Giglio Information for Law Enforcement Witnesses.

In any case where defense counsel by motion or other means has requested a
review of testifying law enforcement witnesses personnel files for impeachment
information [or in prosecutions involving testimony by undercover agents, officers of the
Las Vegas Metropolitan Police Department, and/or BIA/Indian Country officers], the
AUSA assigned to the case shall ask the Giglio officer for the Office to send a Henthorn
letter to any federal or state agency whose employee is likely to testify at trial. In all other
cases, the AUSA has the discretion to determine whether or not to have a Henthorn letter
sent to the federal or state agency employing a testifying witness. If the AUSA decides
not to have a Henthorn letter sent to the employing agency, the AUSA should ask each
potential federal or state affiant/witness:
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 A.
If the witness is aware of any specific instances of
misconduct, both within and outside the scope of his or her employment,
that may bear on the witness’ credibility (including the finding of a lack of
candor during any administrative inquiry);
B.
If the witness has any pending allegations of misconduct with
his or her employing agency;
C.
If the witness has ever had criminal charges filed against him
or her, regardless of the outcome of the charges;
D.
If the witness is aware of any evidence suggesting his or her
bias against the target, subject or defendant;
E.
If the witness is aware of any findings of misconduct,
allegations or pending investigations of misconduct similar to
circumstances or potential defenses in the case (such as, coercion,
entrapment, mishandling of evidence or use of force);
F.
If the witness is aware of any prior findings by a court
concerning the witness that may impact on the witness’ credibility; or
G.
If the witness is aware of any negative allegations or opinions
about the witness’ reputation or character that have been in media stories
or otherwise publicly aired.
The AUSA should make the above-described inquiry of a testifying federal
or state affiant/witness sufficiently in advance of a hearing or trial to permit enough
time for a formal Giglio request to be made to the agency, if necessary, and for the
agency to respond to the request prior to hearing or trial.
2.

Requesting and Reviewing Personnel and Disciplinary Files.

When requested by an AUSA, the Giglio officer will request all Giglio
information from the affiant/witness’ agency through a Henthorn letter. The
federal or state agency official responsible for reviewing the affiant/witness’ file will
conduct a review of the agent’s or employee’s personnel and disciplinary files and
disclose any impeaching information from the file to the requesting Giglio officer.
Because gathering and reviewing Giglio records takes time, AUSAs should make
a request to the Giglio officer for a Henthorn letter sufficiently in advance of the
witness’ anticipated testimony to allow the process to be completed before trial or
the witness testifies.

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 3.

Disclosure of Potential Impeachment Information to the Court
or Defense Counsel.

Once the agency discloses any Giglio 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 Giglio officer will disclose to the AUSA any
potential Brady or Giglio materials. Before the AUSA discloses any material
either to the court for an ex parte, in camera review, or to defense counsel, the
AUSA should discuss the matter fully with the Giglio officer. If it is determined that
disclosure should occur, the Giglio officer or prosecuting AUSA should notify the
agent or agency 4 before disclosure occurs, and give them an opportunity to be
fully heard on the matter.
If an AUSA asks the court to conduct an ex parte, in camera review of
potential Giglio information, the AUSA should ensure that the AUSA’s ex parte, in
camera presentation to the court, and the potential Giglio information reviewed by
the court are made part of the court record, under seal if appropriate, to allow for
appellate review, if necessary. The AUSA should provide the Giglio officer and
the law enforcement agency with any pleadings or documents that are filed with
the court regarding a law enforcement witness’ 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.
4.

Protective Orders.

AUSAs should seek protective orders of sensitive potential impeachment
information in appropriate cases to prohibit disclosures by defense counsel or the
defendant to third parties not involved in the case.
5.

Securely Maintaining Sensitive Agency Material.

All potential impeachment information received from an agency pursuant to
a Giglio request should be securely maintained and should not be shared with any
person who does not have a need to know. The AUSA should keep a copy of all
potential Giglio information received from a Giglio officer in the case file. Giglio
material disclosed to the court or to defense should be clearly marked in the
criminal case file, so it is clear what was disclosed to the court. Because Giglio
information is sensitive, Giglio information in a criminal case file should be kept in a
4 In some cases, an agent may be unaware that there is a pending investigation of their alleged

misconduct. 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.

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 sealed envelope when it is not in use. Consult the Office’s Giglio officer for more
details on proper storage and security of Giglio information.
D.

Witness Interviews.

1.

Interviews of Testifying Witnesses.

Absent unusual circumstances, such as potential serious threats to witness
safety, national security, or an ongoing criminal investigation, AUSAs should
produce reports of testifying witness interviews and witness statements to the
defense prior to the hearing or trial. Interview reports of testifying witnesses
should be produced sufficiently in advance of the witness’s testimony to permit
defense counsel to make effective use of the information. AUSAs have discretion
to determine how far in advance of the testimony the reports will be disclosed
based upon the particular circumstances of their case and any reciprocal
discovery agreements they may reach with defense counsel. In cases governed
by the Office’s standard Joint Discovery Agreement, the AUSA will disclose no
later than 45 days after arraignment all reports and memoranda of interviews of
witnesses the AUSA intends to call at trial. In other cases, the AUSA should take
care to ensure that he or she releases such reports and memoranda within the
time frames provided in the Government Disclosure Statement, Complex Case
Schedule or other court scheduling order.
Production of witness interview reports is required regardless of whether
the reports qualify as statements as defined by the Jencks Act, contains Brady or
Giglio information, or is discoverable under any other law, rule, or policy. Our
policy requires earlier and broader production than is required by the Jencks Act,
or the local rules. 5
Deviation from the policy of production of reports of witness
interviews requires supervisory approval.
a.

Jencks Act/Rule 26.2.

Although this policy requires broad and early production of reports of
witness interviews, AUSAs should nonetheless be familiar with the law’s
requirements and be prepared to object to the improper use or treatment of such
reports as "witness statements" to the extent that they do not qualify as statements
under the Jencks Act.
5

Federal Rule of Criminal Procedure 26.2 and the Jencks Act do not require
disclosure of witness statements until after the witness has testified on direct
examination in a hearing or trial.

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 (1)

Be careful not to characterize a witness interview as a Jencks Act
statement in discovery letters or court pleadings if the interview does
not fit the Jencks Act definition of a witness statement.

(2)

Because witness interview reports are not Jencks material unless
the witness has adopted the memorandum as his statement, AUSAs
should continue to object to use of the report in cross examination.

The Jencks Act 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.” 18 U.S.C. 3500(e).
b.

Brady and Giglio in Interviews of Testifying Witnesses.

This policy requires production of testifying witness interview reports
regardless of whether they contain Brady or Giglio information. Part of the
rationale for early production is that Brady and Giglio is not always readily
identifiable, especially when 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.
Because AUSAs are sometimes required by the court to respond to
defense requests that are specific to Brady and Giglio, AUSAs should review
witness interviews for potential Brady or Giglio. A witness interview may contain
favorable information if it contains information that the witness will receive a benefit
from cooperating, or that the witness has given materially conflicting information or
information that materially conflicts with another witness statement, or failed to tell
the whole truth from the beginning, or failed to advise the interviewing agent of
certain facts during an interview.
AUSAs should be particularly sensitive to the potential for inconsistent
statements if the same potential witness has been interviewed repeatedly. Some
cooperating witnesses may provide false information or 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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 Memorializing Favorable Information and the Duty to Disclose. 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’ statements to the defense.
AUSAs should emphasize to agents the importance of memorializing all
impeaching information.
c.

Brady and Giglio in Agent Notes.

Although it is not necessary to produce an agent’s handwritten notes under
Rule 16 or the Jencks Act, it is necessary to preserve them in the event that the
accuracy of the related formal report becomes an issue.
It is not necessary for AUSAs to review agent notes related to each potential
witness’ interview. However, AUSAs should consider reviewing agent’s notes of
particularly critical interviews, including any interview of a defendant, and the notes
relating to any report of interview of which the defense has questioned the
accuracy of the agent’s formal report. 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 included in the
notes should be produced.
d.

The Duty to Disclose Material Inconsistencies Learned
During Pre-trial 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. All new information learned during a pre-trial
preparation session is not necessarily impeachment information.
New
information that qualifies as impeachment information may 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 the information, and the AUSA should
ensure that the inconsistency is disclosed to the defense in a timely manner. The
best practice would be to have the agent memorialize the inconsistency.
The duty to disclose to the defendant the substance of what a witness has
said during a pre-trial preparation session cannot be avoided by failing to
memorialize it.

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 2.

Interviews of Non-Testifying Individuals.

Although reports of interviews of non-testifying individuals should be
reviewed, AUSAs are not required to produce interview reports 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.
3.

Supervisory Approval Required to Deviate from Policy.

If an AUSA believes it is appropriate to deviate from this policy, the AUSA
should seek supervisory approval.
E.

Discoverability of Prosecutor’s Notes.

A prosecutor’s notes of witness interviews are usually protected from discovery by
work product 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 (potential Jencks Act), or favorable information
(Brady/Giglio), may contain information that is discoverable. If the discoverable
information in the AUSA’s notes is contained in other materials provided to the defense
(such as Form 302s and other reports, agent’s notes or letter to defense), it will often
suffice to provide the other materials to the defense. It is possible, however, that if the
exact nature of the information contained in the notes becomes an issue in the case, the
court may review the notes in camera. 6 AUSAs should 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 should consult with a supervisor.
F.

Similar Act Evidence: Federal Rules of Evidence 404(b).

Because early production of Rule 404(b) evidence may facilitate the early
resolution of a case, AUSAs should consider whether providing early Rule 404(b)
evidence to the defense will help resolve the case. Generally, unless the AUSA has
been granted leave of court, the AUSA should produce and give notice of any evidence
the Government will seek to admit under Rule 404(b), no later than 30 days before trial.

See United States v. Jones, 620 F. Supp.2d 113 (D. Mass. 2009); United States v.
Jones, 2010 WL 565478 (D. Mass. Feb. 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).
6

14

 G.

Charts and Summaries.

Charts and summaries that will be used in Opening Statement or at trial should be
produced no later than 10 days in advance of trial as required by the Joint Discovery
Agreement.
III.

Who is Part of the Prosecution Team: Gathering and Reviewing Potentially
Discoverable Information
A.

Prosecution Team.

When gathering discoverable information, AUSAs should collect from the
members of the prosecution team all information that is required to be produced by Fed.
R. Crim. P. Rules 12 and 16; the Jencks Act and Fed. R. Crim. P. 26.2; Fed. R. Evid.
404(b); and Brady and Giglio. In USAM 9-5.001, a prosecution team is defined as
including federal, state, and local law enforcement officers and other government officials
participating in the investigation and prosecution of the criminal case against the
defendant. The AUSA needs to know which agencies have played a role in the
investigation and make all reasonable inquiries to ascertain what pertinent case
information exists. When identifying members of the prosecution team, AUSAs should
err on the side of inclusiveness, in accordance with DOJ guidance.
In complex cases involving task forces, multi-district investigations, parallel
proceedings, or other non-criminal investigative or regulatory agencies, AUSAs should
examine the relationship of all entities to determine whether the relationship with the other
agency is close enough to make it part of the prosecution team for discovery purposes.
Some factors to be considered in determining whether to review potentially discoverable
information from another federal agency include:
• Whether the prosecutor and the agency conducted a joint investigation or shared
resources related to investigating the case;
• 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;
• Whether the prosecutor knows of and has access to discoverable information
held by the agency;
• Whether the prosecutor has obtained other information and/or evidence from the
agency;
• The degree to which information gathered by the prosecutor has been shared
with the agency;
15

 • Whether a member of an agency has been made a Special Assistant United
States Attorney;
• The degree to which decisions have been made jointly regarding civil, criminal, or
administrative charges; and
• 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.
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; (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. See “DAG Ogden’s Criminal
Discovery Guidance.”
B.

Responsibility of AUSA for the Review of Potentially Discoverable
Information.

Review of all potentially discoverable information generally should be conducted
by the AUSA, or, when deemed appropriate by the AUSA, by a case agent, paralegal or
other person who has met with the AUSA and who understands the discovery gathering
plan. Whether review of potentially discoverable information is conducted personally by
the AUSA or by the case agent or other person, the AUSA is responsible for overseeing
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.
Ultimate responsibility for the production of all discoverable information lies with the
AUSA(s) assigned to the case.
IV.

Potential Sources of Discoverable Information

The AUSA should seek out discoverable information from the prosecution team.
The gathering process should include a review of the following potential sources of
discoverable information:
A.

Investigative Agency’s Files.

All substantive case-related information in the possession of an agent who is part
of the investigative team should be reviewed to determine whether it should be disclosed
as part of discovery. This review generally should be conducted by the AUSA, or, when
deemed appropriate by the AUSA, by a case agent, paralegal or other person who has
met with the AUSA and has been instructed as to the discovery plan and what likely items
of discovery will be found in the agency’s files. In instances where the case agent or
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 other person is used to review the agency files, the AUSA should make clear that the
agent or person should err on the side of inclusion and make specific inquiry of the AUSA
concerning any item the agent or person is unsure should be included in discovery.
The search for information should not be limited to formal investigative reports
such as FBI 302's, DEA-6's, IRS MOI’s, or similar documents. 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 (EC’s), 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, agents or other persons conducting the discovery review
should review the information in its original format, whenever possible.
B.

Confidential Informant (CI)/Witness (CW)/Human Source (CHS) Files.

These files will likely contain Giglio information 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 possessing the file(s) to
review the file(s) personally, or, when deemed appropriate by the AUSA, through another
agent or paralegal who has been debriefed as to materials to look for during the review.
C.

Evidence and Information Gathered During the Investigation.

AUSAs or appropriately instructed case agents, paralegals or other persons
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, grand jury, administrative, inspector general or other subpoena; Title III wiretaps;
consensual monitoring; surveillance; and witness interviews. If the volume of evidence
makes it impractical for the AUSA or others to review all the evidence, this obligation may
be satisfied by making the evidence available to the defense for inspection and copying.
D.

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 or appropriately instructed case
agents, paralegals or other persons should also gather and review any and all information
and evidence from them that could be discoverable using the criteria set forth in DAG
Ogden’s Criminal Discovery Guidance.
E.

Substantive Case-Related Communications (emails, tweets, text
messages, voicemail, memoranda, notes).

To avoid creating evidence, and to ensure that our federal agency law
enforcement partners comply with their own internal reporting rules, AUSAs should avoid
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 using email or voicemails to communicate substantive case-related information with
agents or witnesses.
AUSAs should discourage agents and witnesses from
communicating substantive case-related information with them via email or through
voicemail messages that may be difficult or impossible to capture and transcribe.
"Substantive" case-related email or voicemail communications may contain
discoverable information. Those communications that contain discoverable information
should be maintained in the case file or otherwise preserved in a manner that associates
them with the case or investigation. "Substantive" case-related communications are most
likely to occur (1) among prosecutors and/or agents, (2) between prosecutors and/or
agents and witnesses and/or victims, and (3) between victim-witness coordinators and
witnesses and/or victims. Such communications may be memorialized in emails, text
messages, voicemails, memoranda, or notes. "Substantive" communications include
factual reports about investigative activity, factual discussions of the relative merits of
evidence, factual information obtained during interviews or interactions with
witnesses/victims, and factual issues relating to credibility. Communications involving
case impressions or investigative or prosecutive strategies without more would not
ordinarily be considered discoverable, but substantive case-related communications
should be reviewed carefully to determine whether all or part of a communication (or the
information contained therein) should be disclosed.
AUSAs should also remember that with few exceptions (see, e.g., Fed. R. Crim. P.
16(a)(I)(B)(ii)), the format of the information does not determine whether it is
discoverable. For example, material exculpatory information that the prosecutor receives
during a conversation with an agent or a witness is no less discoverable than if that same
information were contained in an email. When the discoverable information contained in
an email or other communication is fully memorialized elsewhere, such as in a report of
interview or other document(s), then the disclosure of the report of interview or other
document(s) will ordinarily satisfy the disclosure obligation.
F.

Personnel and Disciplinary Files that May Contain Potential Brady or
Giglio Information Relating to Law Enforcement Witnesses.

AUSAs should determine whether each potential law enforcement witness has on
or off duty instances of misconduct, including pending investigations, which may qualify
as potential impeachment or exculpatory information. See discussion in Part II. C.,
above.
G.

Handwritten Notes of Agents.

AUSAs should consider review the agent’s notes of critical interviews, which would
include any interview of a defendant, and the notes relating to any report of interview the
accuracy of which the defense has questioned. See also Part II D 1 c, above.

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 H.

Presentence Reports.

If an AUSA has a witness who is or was a defendant in federal court, in most cases
there will be a Presentence Report (PSR) relating to that witness. The PSR may contain
Jencks, Brady, or Giglio that may need to be disclosed at the appropriate time. AUSAs
should obtain the court’s consent to disclose any relevant information contained in a PSR.
AUSAs should notify and consult with a supervisor, and then follow this procedure:
1.
Review the PSRs of witnesses for potential Jencks, Brady or Giglio
material. If the witness was a defendant in another district, the AUSA should
contact the other district to obtain the PSR.
2.
Identify what, if any, information in the PSR is arguably
Brady/Giglio/Jencks.
3.
If the AUSA identifies information that he or she believes should be
disclosed and that information has not been disclosed elsewhere and is not readily
available from another source, the AUSA should prepare a disclosure motion and
order requesting either an in camera review or disclosure.
4.
Attach as Exhibit(s) to the motion the PSR(s) with the material we
seek to disclose highlighted. The goal is for the judge to have the entire PSR and
to assist him or her to discern what we believe should be disclosed.
5.
Prepare a separate motion and order to seal the disclosure motion
and exhibits.
6.
File the disclosure motion and proposed order with the trial judge
(not the sentencing judge) along with the motion and order to seal.
7.
When the disclosure order is signed, serve defense counsel with the
material from the PSR covered by the order and serve a copy of the order on
defense counsel. The Order should be drafted in a way that it need not be sealed.
With regard to Jencks material, the case law is clear that a testifying witness's
entire PSR is not Jencks material. That is, failing to object to the PSR is not equivalent to
the witness’ adoption of the entire PSR as a statement under the Jencks Act. However,
the testifying witness's PSR may contain Jencks material, which is most likely to appear in
the defendant's version of the offense. AUSAs should examine the defendant’s version
of the offense to determine: (a) if it falls within the Jencks Act definition of statement, that
is, whether it is written by the defendant, a quote, or a substantially verbatim recital of an
oral statement; and (b) if it relates to the subject matter of the witness’s testimony. Of
course, even if it is not Jencks, it may still be subject to disclosure under Brady or Giglio.

19

 I.

Work Product.

In discharging the duty to produce relevant case-related material, an AUSA must
exercise caution to avoid unintentional or unnecessary waiver of privileged or confidential
materials. If attorney work product contains information otherwise subject to disclosure
under Rule 16, Jencks, or Brady/Giglio, the AUSA must ensure that the materials have
been appropriately redacted prior to disclosure to the defense. Where redaction is
inadequate to protect confidential information, the AUSA will discuss with his or her
supervisor the possibility of obtaining a protective order or taking other measures to
protect confidentiality consistent with disclosure obligations.

J.

Victim-Witness Personnel.

AUSAs should work with victim-witness coordinators to ensure that they and other
USAO employees do not discuss substantive case related information with witnesses. If
witnesses speak to victim-witness personnel about the case, the victim-witness staff
member should report the contact to the AUSA. If the information is relevant, material,
exculpatory or impeaching, and is not otherwise covered by discovery already provided,
the communication with the victim-witness personnel should be memorialized and
produced to defense counsel. Optimally, the victim-witness employee will cut off the
communication, and alert the case agent, who may conduct a follow-up interview that
then may be documented in the ordinary course.
V.

Manner of Production and Record-Keeping
A.

Manner of Production.
1.

Documents.

AUSAs should maintain a record of discovery provided to the defense. Generally,
all documentary evidence should be Bates numbered. Whenever possible, discoverable
documents should be scanned and produced electronically in a format that allows the
documents to be searched by a word or name. 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 the defense reviewed the documents.
2.
Non-documentary evidence should be made available to the
defense for inspection and photographing.
3.
Video and Audio Recorded Conversations should be duplicated
and produced to the defense.
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 B.

Recording-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.
When discovery is provided or made available by an AUSA, the AUSA should use a
discovery production letter or form 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 or forms should be maintained in the criminal case file.

C.

Privacy Protection: Redacting Documents.

AUSAs should consider redacting all personal identifiers in whole or in part 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 also be used as a starting point for the redaction of documents that will be
produced in discovery. If because of the volume of discovery the redaction process is so
time-consuming that the production of discovery will be delayed, AUSAs may wish to
consider seeking a protective order at the discovery stage. If the case goes to trial, the
sensitive information should be redacted from exhibits prior to their introduction in
accordance with the court’s standing order.
V.

Cases Involving National Security

Cases
involving
national security,
including terrorism, espionage,
counterintelligence, and export enforcement, can present unique and difficult criminal
discovery issues. The Department of Justice has developed special guidance for those
cases, which is contained in Acting Deputy Attorney General Gary G. Grindler’s
September 29, 2010, memorandum, “Policy and Procedures Regarding the
Government’s Duty to Search for Discoverable Information in the Possession of the
Intelligence Community or Military in Criminal Investigations.” Prosecutors should
consult that memorandum and their supervisors regarding discovery obligations relating
to classified or other sensitive national security information. As a general rule, in those
cases where the prosecutor, after conferring with other members of the prosecution team,
has a specific reason to believe that one or more elements of the Intelligence Community
(IC) possess discoverable material, he or she should consult NSD regarding whether to
request a prudential search of the pertinent IC element(s). All prudential search
requests and other discovery requests of the IC must be coordinated through NSD.
Although discovery issues relating to classified information are most likely to arise
in national security cases, they may also arise in a variety of other criminal cases,
21

 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 Armes Export Control Act or the
International Emergency Economic Powers Act;

•

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

•

Other significant cases involving international suspects and targets; and

•

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

For these cases, or for any other case in which the prosecutors, case agents, or
supervisors making actual decisions on an investigation or case have a specific reason to
believe that an element of the IC possesses discoverable material, the prosecutor should
consult with NSD regarding whether to make through NSD a request that the pertinent IC
element conduct a prudent search. If neither the prosecutor, nor any other member of
the prosecution team, has reason to believe that an element of the IC possesses
discoverable material, then a prudential search generally is not necessary.

22