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DISTRICT DISCOVERY POLICY
DISTRICT OF SOUTH CAROLINA
I.

Introduction
A.

Generally

This policy states the discovery policy for the United States Attorney’s
office in the District of South Carolina in criminal cases. This policy is written
to ensure that the United States Attorney’s office complies with all discovery
obligations as required by Department of Justice (DOJ) policy and federal law.
In addition, in an effort to promote plea agreements and to reduce discovery
litigation, the policy provides for voluntary production of other investigative
materials within a reasonable period of time prior to trial. The policy will be
referred to as the “District Discovery Policy”.1
An AUSA must always comply with those discovery requirements imposed
by law and DOJ policy.2 However, from time to time, variance from the District
Discovery Policy may be appropriate. Reasons may include, but are not limited
to: safety and security of witnesses, the continued viability of investigative
efforts, or the interests of national security. If an AUSA believes a reason for
variance from the policy exists, the AUSA should consult his/her supervisor.
The U.S. Attorney must approve a decision not to follow this policy.
If
supervisory approval is granted, notice should be given to both the court and
defense counsel as soon as practicable, preferably either in writing or on the
record at a pretrial proceeding.3 AUSAs are not required to give the reasons
for their decision in their notice to the court and/or defense counsel in a case.
B.

Scope of Applicability

The policy is not an “Open File Policy” and should never be described as
such. See DOJ “Guidance for Prosecutors Regarding Criminal Discovery”, page
9, January 4, 2010.
1

The Department’s disclosure obligations are generally set forth in Fed.
R.Crim. P. 16 and 26.2, 18 U.S. C. § 3500 (the Jencks Act, Brady, and Giglio
(collectively referred to herein as “discovery obligations”). Additionally,
Hyperlink § 9-5.001 provides for broader disclosures than required by Brady
and Giglio.
2

The same practice should be followed if an AUSA initially follows the
policy, but subsequently gets supervisory approval to stop following the policy.
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The District Discovery Policy confers no substantive rights on the
defendant but rather operates as an expeditious and efficient facilitator
of the resolution of cases. A defense counsel and defendant’s ultimate
decision to proceed to trial or to plead guilty often is facilitated by the
candor of an AUSA backed up by demonstrated strength of the
government’s case.
Nothing in this policy shall obligate the government to provide a
defendant with separate copies of any item at the government’s expense;
the government will provide such copies where practicable and where
appropriate payment arrangements can be made, but the government
only obligates itself to provide reasonable access to discovery items for
inspection.
This discovery policy does not govern disclosure in cases involving
terrorism and 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, 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
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elements of the IC possess discoverable material in the following kinds
of criminal cases:
!

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

!

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

!

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

!

Other significant cases involving international suspects and
targets; and

!

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

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

Sources of Obligations and Resources
A.

Federal prosecutors are subject to several overlapping legal and
ethical standards with respect to discovery
1.

Relevant legal standards under the Federal Criminal Rules
and applicable case law.
The government’s production and disclosure obligations
derive from (1) Fed. R. Crim Proc. 16, 12.2 and 12(b)(4), (2)
statute –18 U.S.C. Sec. 3500, which is also known as the
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Jencks Act; (3) case law; and (4) the South Carolina Rules of
Professional Conduct.
2.

Expanded discovery obligations adopted by the Department
of Justice and the USAO of the District of South Carolina.
Generally, the obligations imposed by DOJ are broader than
those required under the Rules and case law. Prosecutors
should be mindful that DOJ policy and the District Discovery
Policy encourage broad and early disclosure in order to
promote truth-seeking and to foster a speedy resolution of
the case.
These considerations, however, must be
counterbalanced with the specific needs of the case, the need
to protect witnesses and the need to protect ongoing
investigations.

3.

a.

Hyperlink Guidance for Prosecutors Regarding Criminal
Discovery, DAG Ogden, Jan. 4, 2010 (hereinafter “Jan.
4, 2010 Guidance”)

b.

Hyperlink U.S. Attorney’s Manual (USAM) § 9-5.001
and Hyperlink USAM § 9-5.100

Rules of Professional Conduct
AUSAs generally satisfy their ethical obligations when they
comply with DOJ guidance.
The Rules of various
jurisdictions, however, differ. When in doubt, consult with
the District PRO and/or PRAO.

III.

Gathering and Reviewing Potentially Discoverable Information
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.

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USAM §9-5.001.
This search duty also extends to information
prosecutors are required to disclose under Federal Rules of Criminal
Procedure 16 and 26.2 and the Jencks Act.
A. The Prosecution Team
In most cases, “the prosecution team” will include the agents and law
enforcement officers within the relevant district working on the case. In multidistrict investigations, investigations that include both AUSAs and prosecutors
from a DOJ litigating component or other USAO, and parallel criminal and civil
proceedings, this definition will necessarily be adjusted to fit the circumstances.
In addition, in complex cases that involve parallel proceedings with regulatory
agencies (SEC, FDIC, EPA, etc.) or other non-criminal investigative or
intelligence agencies, the prosecutor should consider whether the relationship
with the other agency is close enough in the particular case to make it part of
the prosecution team for discovery purposes.
Factors to be considered
include:
1.

Whether the AUSA/case agent conducted a joint investigation
or shared resources relating to the investigation with the
other district or regulatory agency;

2.

Whether the other agency/district played an active role in the
prosecution’s case including conducting arrests or searches,
interviewing witnesses, developing prosecutorial strategy,
participating in targeting discussions, or otherwise acting as
part of the prosecution team;

3.

Whether the prosecutor knows of and has access to
discoverable information held by the agency;

4.

The degree to which information gathered by the prosecutor
has been shared with the agency;

5.

Whether a member of an agency has been made a Special
Assistant United States Attorney on the case;

6.

The degree to which decisions have been made jointly
regarding civil, criminal, or administrative charges in the
case; and
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7.

The degree to which the interest's of the parties in parallel
proceedings diverge such that information gathered by one
party is not relevant to the other party.

“Prosecutors are encouraged to err on the side of inclusiveness when identifying
the members of the prosecution team for discovery purposes.” Jan. 4, 2010
Guidance.
B.

Specific Practices
1. Start of Investigation
In all cases, as early as possible and long before indictment, AUSAs
should work with investigators to plan for how discovery obligations
will be addressed and satisfied. AUSAs should provide the
following guidance to investigators, either orally or in writing.
(a) Witness Interviews
Although not required by law, generally speaking, witness
interviews4 should be memorialized by the agent.5 Agent and
prosecutor notes, if any, and original recordings should be
preserved, and AUSAs should confirm with agents that
substantive interviews will be memorialized. When an AUSA
participates in an interview with an investigative agent, the
AUSA and agent should discuss note-taking responsibilities
and memorialization before the interview begins (unless the

“Interview” as used herein refers to a formal question and answer
session with a potential witness conducted for the purpose of obtaining
information pertinent to a matter or case. It does not include conversations
with a potential witness for the purpose of scheduling or attending to other
ministerial matters. Potential witnesses may provide substantive information
outside of a formal interview, however.
Substantive, case-related
communications are addressed below.
Trial preparation meetings with
witnesses are also separately addressed below.
4

In those instances in which an interview is audio or video-recorded,
further memorialization will generally not be necessary, other than, of course,
memorialization of the fact that such an interview occurred.
5

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AUSA and the agent have established an understanding
through prior course of dealing). Whenever possible, AUSAs
should not conduct an interview without an agent present, to
avoid the risk of making themselves a witness to a statement
and being disqualified from handling the case if the
statement becomes an issue. If exigent circumstances make
it impossible to secure the presence of an agent during an
interview, AUSAs should make every attempt to have
another office employee present.
Interview reports are not considered the Jencks material of
the person interviewed, unless they contain a verbatim
statement of the witness or the witness has adopted it. See
United States v. Roseboro, 87 F.3d 642, 645 (4th Cir. 1996).
Bear in mind however, that interview reports may be Jencks
material as to the authoring agent should the agent take the
stand to testify about what was said during the interview.
Even though interview reports are generally not Jencks
material for the interviewed witness, the standard practice is
to produce the reports to the defense, and that is certainly
the safest course of conduct. However an AUSA may decide
not to produce the reports (if they have not been adopted by
the witness) for legitimate security reasons.
As an
alternative to producing the reports, an AUSA may consider
allowing defense counsel to review them and take notes.
Importantly, interview reports that do not constitute Jencks
material may still contain Brady or Giglio material that is
subject to disclosure. Thus, if an AUSA elects not to produce
a report about a testifying witness because the report was
not adopted by the witness (and therefore, not Jencks
material), the AUSA must still review the report for Brady
and Giglio material. If the report contains either, the
relevant content must be disclosed regardless of whether the
report itself constitutes Jencks material and is produced.
Moreover, AUSAs should be aware of the contents of the
reports while the interviewed witness is testifying and should
watch for inconsistencies between the reports and the
testimony, which may trigger a disclosure obligation that did
not exist previously.
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If an AUSA produces the interview reports, personal
identifiers within the reports such as home addresses, dates
of birth, and social security numbers should be redacted in
accordance with the standard redaction procedures that
apply to court filings. Also the AUSAs should require that
within 15 days of final resolution of the case all matters
disclosed to the defense be immediately returned to the
United States Attorney’s Office.
(b) Rough Interview Notes
Agents should be asked to retain all rough notes of
interviews (whether taken by hand or on computer), even if
notes are described, consolidated, or otherwise formalized in
a final investigative report, including a final MOI, FBI-302,
DEA-6 or ROI (collectively, “MOI”).
Within the framework of the analysis above regarding the
production of interview reports, an AUSA generally need not
produce the rough notes than an agent takes during a
witness interview. See United States v. Hinton, 719 F.2d
711, 722 (4th Cir. 1983) (“[T]he investigative notes of a
government agent, made in the course of interviewing
witnesses, which are later incorporated in the agent’s formal
302 report, are not statements within the meaning of Section
3500(e)(1)”).
Exceptions to this general rule include instances where there
are inconsistencies between the notes and the final interview
report or 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. An AUSA should 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, or the witness disputes the
agent’s account of the interview. If it turns out that there
are inconsistencies between the notes and the final report,
the government must produce the notes.

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(c) Correspondence Practices
Agents should be instructed that all correspondence relating
to the investigation must be retained with the case file.
Correspondence includes formal and informal written
correspondence.
(i) Email: Any substantive e-mail communication
from/to an agent who is a potential witness or from/to
any witness which relates to the agent’s or witness’s
potential testimony, must be preserved, printed and
timely provided to the U.S. Attorney’s Office for review
and for potential use as discovery material just like any
more formal written agency reports. “Substantive”
communications include summaries of investigative
activity, discussions of the relative merits of evidence,
characterization of potential testimony, interactions
with witnesses/victims, and issues relating to
credibility.
Recognizing that e-mail communications may not be as
complete as investigative reports and may have the
unintended effect of circumventing an agency’s
procedures for writing and reviewing reports, AUSAs
are to ask agents to refrain from using e-mail
messages for “substantive” communications about the
facts of a case.
If, notwithstanding the AUSAs
requests to the agent, substantive information
pertaining to a case or witness is communicated in an
email, the AUSA and Agent should save and print out
the email and maintain the printed email in the case
file for review and possible production.
Agents should be instructed that this policy is not
intended to discourage emails between agents and
AUSAs regarding investigative strategies or legal
issues, nor is it intended to discourage the efficient
practices of sending formal investigative reports as
email attachments to prosecutors or of using email for
scheduling (e.g., a witness interview, grand jury time,
etc.).
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2.

Pre-Indictment
(A) Instructions to case agent regarding materials to be gathered.
AUSAs should ask the case agent to gather all discovery
materials outlined in Part IV below. The request should be made
sufficiently in advance of indictment so that the gathering and
review process can be completed before the indictment is returned.
If the nature of the case makes that timing impossible, the request
should be made as early as practicable.
(B) Instructions to Victim/Witness Coordinator regarding
statements by victims or witnesses.
In cases involving victims, AUSAs should give the relevant
victim/witness coordinator a list of victims prior to indictment.
AUSAs should also instruct the victim/witness coordinator to
provide the AUSA with any statements the victims may make about
the offense. AUSAs should instruct the victim-witness coordinator
and the case agent to record all benefits or services provided to the
victim-witness, including non-monetary benefits or assistance.

3.

Information to be Reviewed
To ensure that all discovery is disclosed on a timely basis, generally
all potentially discoverable material within the custody or control of
the prosecution team should be reviewed. 6
A.

The Investigative Agency’s Files- AUSAs may choose to
review the file or request production of potentially
discoverable materials from the case agents. However, the
prosecutor is responsible for compliance with discovery
obligations. Although prosecutors may delegate the process
and set forth criteria for identifying potentially discoverable
information, prosecutors should not delegate the disclosure
determination itself.

How to conduct the review is discussed below.

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B.

1.

The file includes documents such as FBI Electronic
Communications (ECs), case-related DEA teletypes,
inserts, emails, etc.

2.

If discoverable information is contained in a document
that the agency deems to be an “internal” document
such as an email, an insert, an administrative
document, or an EC, it may not be necessary to
produce the internal document, but it will be necessary
to produce all of the discoverable information
contained in it. AUSAs should also discuss with the
investigative agency whether files from other
investigations or non-investigative files such as
confidential source files might contain discoverable
information. Those additional files or relevant portions
thereof should also be reviewed as necessary.

Confidential Informant/Source Files
The credibility of cooperating witnesses or informants will
always be at issue when they testify, and accordingly, AUSAs
should investigate these witnesses thoroughly. AUSAs
should look for–and if found, disclose–impeachment
information relating to such circumstances as the witness’s
relationship with the defendant, the witness’s motivation for
cooperating and/or testifying; drug and alcohol problems;
benefits the witness is receiving such as monetary payments,
expenses, costs, or housing; the immigration status of the
witness and/or family members; intervention by law
enforcement in connection with arrests or other legal
entanglements; taxes paid on informant payments; notes,
diaries, journals, e-mails, letters, or other writings by the
witness; prison files, tape recordings of telephone calls, and
e-mails, if the witness is in custody; and, or course, criminal
history.
Confidential informant files should be reviewed for
discoverable information and copies made of relevant
portions for discovery purposes. The entire informant file of
any testifying informant, not just the portion relating to the
current case, including all proffer, immunity and other
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agreements, assessments, payment information and other
potential impeachment information should be included within
this review. AUSAs should also consult with the case
agent(s) to ensure that all potentially discoverable
information has been properly documented in the CI and/or
other pertinent file. AUSAs should take steps to protect the
non-discoverable, sensitive information found within a CI,
CW, CHS or CS file.
If a prosecutor 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.
AUSAs should consult with the case agent(s) or other
appropriate personnel to determine whether any statutes,
agency regulations or policies prohibit disclosure of potential
Giglio materials—e.g., I.R.S. taxpayer information, drug and
alcohol counseling records, certain DEA intelligence
files—and/or other privacy and security considerations. If
such considerations prohibit direct disclosure of a document
or file, the AUSA may choose to disclose discoverable
information in summary format to the defendant rather than
producing the underlying documents. If such considerations
prohibit disclosure of the information in any form, the AUSA
should consult with USAO and Agency supervisors to
determine whether the information may be disclosed to the
Court, in camera and the impact on the case if the court
determines that the information must be released.
C.

All evidence
investigation.

and

information

gathered

during

the

D.

Documents or evidence gathered by civil attorneys and/or
regulatory agencies in parallel civil investigations.

E.

Substantive case-related communications
“Substantive” case-related communications may contain
discoverable information.
Those communications that
contain discoverable information should be maintained in the
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case file or otherwise preserved in a manner that associates
them with the case or investigation. “Substantive” caserelated 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,
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, 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.
(Logistical
communications such as emails which contain only travel
information, or the dates and times of hearings or meetings
are not substantive communications.)
F.

Giglio information for law enforcement witnesses (see
generally USAM 9-5.100 and the District’s Giglio Policy
(hyperlink)

G.

Giglio information for non-law enforcement witnesses,
includes, but is not limited to:
1.

Prior inconsistent statements;

2.

Benefits provided to witnesses, including but not
limited to:
(a)

Dropped or reduced charges,

(b)

Immunity,

(c)

Expectations of downward departures or motions
for reduction of sentence,

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3.

4.

(d)

Assistance in a state or local criminal proceeding,

(e)

Considerations regarding forfeiture of assets,

(f)

Stays of deportation or other immigration status
considerations,

(g)

S-Visas,

(h)

Monetary benefits,

(i)

Non-prosecution agreements,

(j)

Letters to other law enforcement officials (e.g.
state prosecutors, parole boards) setting forth
the extent of a witness's assistance or making
substantive recommendations on the witness's
behalf,

(k)

Relocation assistance, and

(l)

Consideration or benefits to culpable or at risk
third-parties;

Witness bias, including but not limited to:
(a)

Animosity toward defendant,

(b)

Animosity toward a group of which the
defendant is a member or with which the
defendant is affiliated,

(c)

Relationship with a victim, and

(d)

Known but uncharged criminal conduct (that
may provide an incentive to curry favor with a
prosecutor);

Prior acts under Fed. R. Evid. 608 and prior convictions
under Fed. R. Evid. 609,

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C.

5.

Known substance abuse or mental health issues;
and/or

6.

Inconsistent witness statements. Note: The Jan. 4,
2010 DAG Guidance contains detailed instructions for
ensuring that inconsistent witness statements are
properly documented and disclosed. AUSAs must be
familiar with those requirements. In general:
(a)

AUSAs should take appropriate steps to ensure
that all witness interviews are memorialized in a
report,

(b)

Material variations by a witness should be
documented and must be disclosed, and

(c)

AUSAs may need to review agents’ notes on a
case-by-case basis.

Conducting the Review
The Jan. 4, 2010 DAG Guidance provides guidelines on how AUSAs
should conduct their discovery review. The format of this review
will necessarily be conducted on a case-by-case basis. It would be
preferable if AUSAs could review the information themselves, but
such review is not always feasible or necessary. However, it is the
responsibility of the AUSA to ensure that all discovery obligations
have been met. Accordingly, the AUSA should develop a process
for review of pertinent information to ensure that discoverable
information is identified.
This process may involve agents,
paralegals, agency counsel, and computerized searches. Although
AUSAs may delegate the process and set forth criteria for
identifying potentially discoverable information, AUSAs should not
delegate the disclosure determination itself. In cases involving
voluminous evidence obtained from third parties, AUSAs should
consider providing defense access to the voluminous documents to
avoid the possibility that a well-intentioned review process
nonetheless fails to identify material discoverable evidence. Such
broad disclosure may not be feasible in national security cases
involving classified information.

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IV.

DISCLOSING DISCOVERABLE INFORMATION
A.

Rule 16
1.

Rule 16 provides for the discovery, upon request of the
defense7, of the following if it is in the government’s
possession, custody, or control. AUSAs have a due diligence
and affirmative duty to inquire of investigating agencies
whether or not the following discoverable material exists:
(a)

The substance of any oral statement made by the
defendant, before or after arrest, in response to
interrogation by a person the defendant knew was a
government agent;

(b)

Any written or recorded statement made by the
defendant;

(c)

The portion of any written record containing the
substance of any oral statement made before or after
arrest if the defendant made the statement in response
to interrogation by a person the defendant knew was
a government agent;

(d)

Pursuant to an appropriate protective order, the
recorded testimony of the defendant before a grand
jury; Fed. R. Crim. P. 16(a)(1)(A) and (B).

AUSAs should ask all agents who had any contact or dealings
with the defendant to report all statements, verbal and non-verbal,
made by the defendant to any law enforcement officer. If a
defendant made a statement to a law enforcement officer that is

Because reciprocal discovery obligations are not triggered unless the
defense requests discovery and the government complies, AUSAs must ensure
that a defendant’s request for discovery is memorialized (i.e. such as a letter
from defense counsel or a request on the record) before discovery is
disseminated.
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not captured in a report, the substance of the statement must be
disclosed to the defense.
EXAMPLES OF STATEMENTS THAT MAY BE PART OF RULE 16 DISCOVERY
(non-exhaustive)
•
•
•
•
•
•
•
•
•
•

recordings, wiretaps, emails, text messages, FaceBook information,
YouTube etc.;
handwritten notes, confessions;
signed documents; e.g. Miranda waiver form, consent to search;
oral statements, whether or not memorialized in reports; anything
defendant said to agents or others;
excerpts from reports pertaining to statements;
pedigree;
bonds;
financial statements;
pretrial reports - you should not have these reports but if you do, or
have information from such a report, consider whether you need to
disclose and if so, how;
probation reports - can be tricky issue - not usually disclosed but
you must review it for information that you may have to disclose and
consider how to disclose.
(e)

If a defendant is an organization, upon a defendant’s
request, the government will disclose statements
described in Rule 16(a)(1)(A) and (B) if the
government contends the person making the
statement : (i) was legally able to bind the defendant
regarding the subject of the statement because of that
person’s position as the defendant’s director, officer,
employee or agent, or (ii) was personally involved in
the alleged conduct constituting the offense and was
legally able to bind the defendant regarding that
conduct because of that person’s position as the
defendant’s director, officer, employee or agent. Crim.
R. 16(a)(1)(C).

(f)

The defendant's prior criminal history; Fed. R. Crim. P.
16(a)(1)(D).
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(g)

Documents and objects, where disclosure is material8
to defense, the government intends to use in case-inchief; and/or the evidence was obtained from or
belonged to the defendant. (Note: the Government is
only required to produce what is in its possession,
custody or control; but control may depend on whether
state and local law enforcement or federal, state and
local regulatory agencies are involved. See, Section II
supra); Fed. R. Crim. P. 16(a)(1)(E) and

(h)

Reports of scientific tests and medical examinations
intended for use by the government as evidence in its
case-in-chief, or material to the defense.
Fed. R.
Crim. P. 16(a)(1)(F).

(i)

A written summary of testimony the government
intends to use under Fed. R. Evid. 702, 703, or 705
(expert witness) as evidence in its case-in-chief at
trial. This summary will describe the witness’ opinions,
the bases and reasons for those opinions and the
witness’s qualifications.
Fed. R. Crim. Proc.
16(a)(1)(G).

It is important to note that under Rule 702 of the Federal
Rules of Evidence, expert testimony includes not only
anything of a scientific or technical nature, but also anything
requiring specialized knowledge.
It would include for
example, testimony by a police officer based on his
experience, about drug prices in his beat or what drug
quantities are consistent with personal use as opposed to
distribution or what “coded” language meant to the officer.
See United States v. Johnson, ___F.3d ____ (4th Cir. August
16, 2010).
2.

Special Situations

The standard for materiality being where disclosure would enable the
accused to substantially alter the quantum of proof in his favor.
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Taint Teams and Firewalls - if there is a firewall/filter team, make
sure filter team AUSA is passing on discoverable information to
prosecution team AUSA. If using a taint team, be sure to consult
with the Office of Professional Responsibility Officer (PRO).
3.

Information not subject to disclosure (Rule 16(a)(2))
Except as Rule 16(a)(1) provides otherwise, the following are not
subject to disclosure:
A.

Reports, memoranda, or other internal government
documents made by an attorney for the government or other
government agent in connection with investigating and
prosecuting the case.

B.

Statements made by prospective government witnesses
except as provided in 18 U.S.C. § 3500.

Nonetheless, AUSAs must review documents for Brady material
(described in more detail, below) and, if such material is found,
disclose it consistent with Brady disclosure requirements. In
addition, as noted in § B(1)(a) at pages 6-7, the District’s policy is
to disclose such statements unless articulable and limited factors
weigh in favor of non-disclosure.
4. Defendant’s disclosure requirements (Rule 16 (b))
A.

As noted above, the defendant’s disclosure obligations are
triggered ONLY IF the defendant requested disclosure from
the government pursuant to Rule 16(a)(1)(E), the
government complied, and the government makes a
discovery request. (See Rule 16(b)(1)(A).) If all of these
conditions are satisfied, the defendant must provide the
government:
(1)

documents and objects in defendant’s control which he
intends to use in his case-in-chief.

(2)

reports of examinations and tests if in the defendant’s
control, the defendant intends to use them in his case
in chief, OR defendant intends to call a witness who
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prepared the report and the report relates to the
witness’s testimony.
(3)

B.

5.

a written summary of any expert testimony the
defendant intends to use under Rules 702, 703, or 705
as evidence at trial IF the defendant requests
disclosure of government’s expert witness and
government complies OR the defendant has given
notice under Rule 12.2(b) of an intent to present
expert testimony of the defendant’s mental condition.

The defendant is not required to disclose
(1)

reports (other than scientific or medical under Rule
16(b)(1)), memoranda, or other documents made by
the defendant, or

(2)

A statement made to the defendant or the defendant’s
attorney or agent during the case’s investigation or
defense; OR a statement made to the defendant, or
the defendant’s attorney or agent, by the defendant,
a government or defense witness, or a prospective
government or defense witness.

Continuing duty to disclose (Rule 16(c))
There is a continuing duty to promptly disclose additional
discoverable evidence.

6.

Regulating discovery (Rule 16 (d))
For good cause shown, the court may deny, restrict, defer or
regulate discovery. Prior to turning over discovery, the AUSA
should obtain an order from the court in which the matter is
pending, regulating the handling, dissemination and disposition of
the discovery.
If an AUSA determines that it is appropriate to make an in camera
submission to the court for determination of whether or not a
document is discoverable, the AUSA must ensure that the
defendant is aware of the AUSA’s request for in camera inspection.
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If the request is not made in a manner that ensures it is reflected
in the court record, the AUSA must document his/her file to reflect
the date, time and manner in which the defendant was made aware
of the request.
B.

Rule 12.1 Government’s disclosure obligations where defendant
asserts certain defenses.
1.

Notice of Alibi Defense - Rule 12.1

If in response to a government request pursuant to Rule
12.1(a)(1), the defendant provides specific notice to the
government of an intention to assert an alibi defense, the
government is then required within 14 days after the defendant’s
notice and no later than 14 days before trial, to give the defendant
in writing:
(a) the name, address and telephone number of each witness the
government will rely on to establish that the defendant was
present; and
(b) each government rebuttal witness to the defendant’s alibi
defense.
2.

Notice of Insanity Defense; Mental Examination - Rule 12.2

If the defendant provides specific notice to the government that
defendant intends to assert a defense of insanity at the time of the
alleged offense, or introduce expert evidence relating to a mental
disease or defect or any other mental condition bearing on the
defendant’s guilt or issue of punishment in a capital case, the court
MUST, upon the government’s request, order the defendant to be
examined under 18 U.S.C. § 4242.
3.

Notice of Public Authority Defense - Rule 12.3

If the defendant provides specific notice that defendant intends to
assert a defense of actual or believed exercise of public authority
on behalf of a law enforcement agency or federal intelligence at the
time of the alleged offense, the government is required to serve a
written response within 14 days after receiving the defendant’s
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notice, but no later than 21 days before trial, admitting or denying
that the defendant exercised the public authority identified in the
defendant’s notice. Thereafter, reference should be made to the
Rule in order to assure that subsequent discovery obligations are
met.
C.

Disclosure of confidential informants
The standard for disclosure of the identity of a non-testifying
confidential informant is reasonable probability that the informer
can give relevant testimony material to the defense. Disclosure of
the identity of a confidential informant is required where the
informant is an active participant in the crime. Where the
informant is more than a tipster but not an integral participant in
the criminal activity, disclosure will only be compelled where the
defendant’s need to know the informant’s identity outweighs the
government’s interest in maintaining the anonymity of its source.
The government has no duty to produce an informant at trial.
Disclosure is not required where the informant played only a
minimal or passive role in the offense charged or the informant
would be in personal danger and the potential testimony of the
informant is not exculpatory.

D.

Exculpatory and Impeachment material
1.

Brady v. Maryland, 373 U.S. 83 (1963), is not a rule of
discovery but rather one of fundamental fairness and due
process. As prosecutors, we are constitutionally required to
disclose exculpatory and impeachment information when
such information is material to guilt or punishment,
regardless of whether a defendant makes a request for
such information.
Government disclosure of material
exculpatory and impeachment evidence is part of the
constitutional guarantee to a fair trial. Brady, at 87; Giglio
v. United States, 405 U.S. 150, 154 (1972).
Disclosure
requirements apply to sentencing as well as to
guilt/innocence determinations.

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2.

Importantly, however, DOJ policy set forth in USAM § 95.001 recognizes that a fair trial will often include
examination of relevant exculpatory or impeachment
information that is significantly probative of the issues before
the court but that may not, on its own, result in an acquittal
or, as is often colloquially expressed, make the difference
between guilt and innocence. As a result, this policy requires
disclosure by prosecutors of information beyond that which
is "material" to guilt as articulated in Kyles v. Whitley, 514
U.S. 419 (1995), and Strickler v. Greene, 527 U.S. 263,
280-81 (1999). (USAM § 9-5.001)
a.

Additionally, 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)

b.

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 likely to make the difference
between conviction and acquittal of the defendant for
a charged crime. (USAM § 9.5-001).

c.

The South Carolina Rules of Professional Conduct, Rule
3.8 sets out rules relating to special responsibilities of
prosecutors. With respect to discovery, Rule 3.8(d)
states that a prosecutor shall “make timely disclosure
to the defense of all evidence or information known to
the prosecutor that tends to negate the guilt of the
accused or mitigates the offense, and, in connection
with sentencing, disclose to the defense and to the
tribunal all unprivileged mitigating information known
to the prosecutor, except when the prosecutor is
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relieved of this responsibility by a protective order of
the tribunal.” The office discovery policy is designed,
in part, to assure that all AUSAs act in a way that is
fully consistent with this requirement.
AUSAs should be aware that the ABA has issued a
formal opinion interpreting 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 to a defendant prior to entry
of a guilty plea.
That is not the policy of the
Department of Justice or of the USAO for the District of
South Carolina. Any AUSA confronting an argument
relying on Model Rule 3.8(d) and Opinion 9-454 should
consult with their supervisor in formulating a response.
Where deemed appropriate, they should also consult
the Professional Responsibility Officer and the
Department of Justice Professional Responsibility
Advisory Office (PRAO), which can be reached at 202514-0458 or by email at doj.prao@usdoj.gov.
E.

Jencks Act (18 U.S.C. §3500) and Rules 26.2, 12(i) and 5.1, Fed.
R. Crim. P.:
1.

Due process requires production of prior statements of a
witness in the possession of the United States which relate
to the events to which the witness testifies to be produced
upon request after the witness testifies. Jencks v. United
States, 353 U.S. 657 (1957); codified at 18 U.S.C. §3500.
“Witness statements include writings that the witness has
made, signed, or adopted; recordings of the witness;
substantially verbatim written recordings by a person
interviewing the witness; and grand jury transcripts. While
a court cannot order production until after a witness has
testified, waiting until that point requires supervisory
approval.

2.

Rule 26.2 requires the government and defense, on motion
of the party who did not call the witness, to make the
statements of a witness (other than the defendant) available
to the party who did not call the witness, after the witness
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has testified on direct examination. Witness statements
include writings that the witness made and signed or
otherwise adopted and approved; a substantially verbatim,
contemporaneously made recording or transcript of a
witness’s oral statement; and grand jury transcripts. Only
statements that relate to the subject matter of the witness’s
testimony must be produced. The rule overlaps substantially
with 18 U.S.C. § 3500 and the requirements set forth in
Jencks.
3.

F.

Hyperlink Rule 12(i) applies Rule 26.2 to suppression
hearings and Hyperlink Rule 5.1 applies Rule 26.2 to
preliminary hearings. At such hearings, a law enforcement
officer shall be deemed a witness called by the government.
Privileged material shall be excised. Pursuant to Rule 5.1, if
the government fails to produce Jencks material, the
magistrate cannot consider the testimony from that witness.
Trial Preparation Witness Interviews
In a witness prep session, generally an agent should take
notes only to record inconsistencies between what the
witness said in previous meetings and what the witness says
during the prep session. If an AUSA takes notes during any
witness interview, the AUSA must review them for Brady and
Giglio material. Finally, if an AUSA’s notes deviate from
those taken by the agent, the inconsistencies may need to be
disclosed as potential impeachment material.

V.

Other discovery issues
A.

Mandatory redaction of certain information filed with the court
1.

Rule 49.1 requires that, unless otherwise ordered by the
court, we are required to redact certain categories of
information filed with the court. Categories of information
that must be redacted include:
(a)

social security numbers - use last four digits

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2.
B.

C.

(b)

taxpayer identification numbers - use last four digits

(c)

birth dates - use year

(d)

names of individuals known to be minors - initials only
(see also, 18 U.S.C. § 3509 (d) (2))

(e)

financial account numbers - use last four digits

(f)

home address of individuals - city and state only

Categories of documents exempt from the redaction
requirement are set forth in Rule 49.1(b).

Classified Material
1.

The Classified Information Procedures Act (“CIPA”), Title 18,
United States Code, Appendix 3, controls the disclosure of
classified information in discovery.

2.

If your case involves or implicates classified information,
contact the Office’s National Security Coordinator at the
earliest possible juncture.

Disclosure of tax information
Section 6103 of the Internal Revenue Code Hyperlink governs
disclosure of tax information the government has obtained from the
Internal Revenue Service (“IRS”). Under § 6103(i)(4), returns or
return information “may be disclosed in any judicial or
administrative proceeding pertaining to the enforcement of a
specifically designated federal criminal statute or related civil
forfeiture to which the United States or a federal agency is a party”
upon a finding that the information is probative of a matter in issue
relevant to the commission of a crime, or of the guilt or liability of
a party. Disclosure may also be made pursuant to the Jencks Act
or Fed.R.Crim.P. 16.
Note that § 6103 applies only to materials obtained from the IRS.
Section 6103 does not apply if the government acquired the tax
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information from a source other than the IRS, such as returns
obtained from tax preparers pursuant to grand jury subpoena.
Such disclosures are then governed by Rule 6(e) of the Federal
Rules of Criminal Procedure.
In any event, before producing the tax material to the defense, an
AUSA should ensure that identifiers are redacted consistent with
the Local Rules and Office practice.
D.

Discovery in large document cases
In cases where there is documentary evidence that is too
voluminous to review completely, an AUSA should consider
providing the defense access to all of it to avoid inadvertently
failing to disclose information that could be characterized as Brady
or Giglio material. As a general rule, the government is not
obligated to identify exculpatory parts of materials that have been
disclosed. That is usually considered part of the defendant’s
“reasonable diligence” requirement. Courts, however, are more
likely to find that the government has complied with its Brady
obligations without requiring it to locate and point out specific
exculpatory material if the AUSA has turned over discovery with
enough time for the defense to make effective use of it (i.e., early
on), has provided discovery in a format that can be searched
electronically, and/or has identified a set of “hot documents.” If a
large number of documents are provided to the defense, whether
in hard copy or electronically, consider having the documents Bates
stamped to make it easier to keep track of what has been
produced.

E.

Child pornography cases
In child pornography cases, 18 U.S.C. § 3509(m) Hyperlink
specifically provides that a court cannot order the copying or
reproduction of any child pornography or material containing child
pornography, including the duplication of the hard drives of
computers and electronic storage media, provided the government
furnishes the defense with a reasonable opportunity to inspect,
view, and examine the material in government offices. The statute
also provides that this material must remain in government care,
custody, and control.
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In cases where child pornography has been found on a computer
belonging to or otherwise used by the defendant, and the defense
requests to examine the evidence with his own expert, the best
practice is to provide a “mirror image” of the digital evidence for
use by the defense in a government facility. The defendant’s
expert should be provided a private room for the analysis, but an
agent should remain outside the room to monitor the expert’s
movement into and out of the room and to ensure that the expert
does not remove any material containing child pornography. The
agent should also either conduct an image scan or wipe the
expert’s computer to ensure that contraband does not leave the
premises. The mirror image remains in the custody of law
enforcement and can be accessed by the defense only in
government offices. Providing the defense with the ability to
secure that mirror image and their examination equipment in the
government facility while conducting the examination ensures
defense access to the evidence without disclosing the nature of the
defense’s analysis and the focus of its examination or otherwise
revealing the defense strategy. In the event the court orders a
mirror image to be provided to the defense outside of government
facilities, a protective order must be obtained.
F.

Capital cases
Capital cases present two additional discovery considerations.
First, under 18 U.S.C. § 3432, Hyperlink the government must
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.
Second, the scope of what constitutes Brady material for
sentencing purposes is expanded to include any potential
mitigating factor (i.e., reasons that a defendant should not be
sentenced to death) and should be disclosed promptly. 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. Moreover, any evidence
that would support a non-statutory mitigating factor (i.e., a reason
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that the defendant should not be sentenced to death that is not set
forth in the statute) would also constitute Brady material. Often
this material consists of evidence of mistreatment in the
defendant’s past or a defendant’s mental health problems. Before
deciding what evidence constitutes Brady material in a capital
sentencing, AUSAs should consult with the district’s Capital Case
Coordinator.
G.

Electronic discovery
Nearly every criminal case involves some form of electronic
evidence such as bank and telephone records, wire transfer
receipts, e-mails, and text messages. Both material received
electronically and items obtained in hard copy format may be
provided to the defense electronically on discs. As noted above, in
large-document cases, that is often the most efficient method of
production and, because electronic documents may be downloaded
easily and quickly into Sanctions or a similar program, the most
efficient method of presentation at trial. Documents should be
prepared for discovery in IPRO, as this will ensure a consistent
format for delivery and make discovery accessible to AUSAs and
support throughout the District. IPRO prepared evidence should be
set up to optical character recognition (“OCR”) which will allow the
documents to be searched for particular words or terms. This will
not only streamline a search for documents relevant to a particular
issue or witness but will also facilitate a search for Brady and
information.

VI.

TIMING OF DISCLOSURE
A.

DOJ Guidance:
1.

“Providing broad and early discovery often promotes
the truth·seeking mission of the Department and
fosters a speedy resolution of many cases. It also
provides a margin of error in case the prosecutor's
good faith determination of the scope of appropriate
discovery is in error. Prosecutors are encouraged to

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provide broad and early discovery consistent with any
countervailing considerations.” Jan. 4, 2010 Guidance.
2.

Countervailing concerns to early disclosure include, but
are not limited to:
(a)

protecting
victims
and
harassment or intimidation;

witnesses

(b)

protecting the privacy interests of witnesses;

(c)

protecting privileged information;

(d)

protecting
the
investigations;

(e)

protecting the trial from efforts at obstruction;

(f)

protecting national security interests;

(g)

investigative agency concerns;

(h)

enhancing the likelihood of receiving reciprocal
discovery by defendants;

(i)

any applicable legal or evidentiary privileges;
and

(j)

other strategic considerations that enhance the
likelihood of achieving a just result in a particular
case.

integrity

of

from

ongoing

3.

Absent any countervailing concerns above, Rule 16
Disclosure should be made at or as near the time of
arraignment as possible but not later than any discovery date
set by the Court. Disclosure at or before arraignment in
routine cases is encouraged.
Cases with voluminous
documents may merit different considerations.

4.

Discovery Conferences: In complex or large document cases,
AUSAs are encouraged to meet with case agents in the pre30

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Indictment phase to determine the universe of discovery in
existence. The best methods of gathering, organizing and
producing discovery, should be discussed.
These
conferences are a suggested tool and are by no means
mandatory.
5.

Exculpatory information, regardless of whether the
information is memorialized, must be disclosed to the
defendant reasonably promptly after discovery, per DOJ
policy.9 The constitution requires that it be given to the
defense in time to make effective use of the material. It is
the policy of this office that Brady material must be disclosed
as soon as it is discovered.

6.

Giglio/impeachment material must be disclosed at a
reasonable time before trial to allow the trial to proceed
efficiently. (USAM §9-5.001).10 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).
However, 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 disclose the information to the defense immediately.
Brady and Giglio evidence must be disclosed
regardless of whether the defendant makes a request
for exculpatory or impeachment evidence.

7.

Exculpatory or impeachment information that casts doubt
upon sentencing factors but does not relate to proof of guilt,
must be disclosed no later than the court's initial presentence
investigation. (USAM §9-5.001).

Exculpatory information that includes classified or otherwise sensitive
national security material may require certain protective measures that may
cause disclosure to be delayed or restricted (e.g. pursuant to the Classified
Information Procedures Act). (USAM § 9.5-001)
9

There is no constitutional requirement to disclose impeachment material
before trial.
10

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IV.

8.

A prosecutor must notify a USAO supervisor before any
disclosure is made of any classified exculpatory or
impeachment information. Upon supervisory approval,
notice will be provided to the defendant that classified
information contains potential impeachment information and
of the time and manner by which disclosure of the
exculpatory or impeachment information will be made.
(USAM § 9-5.001) Hyperlink

9.

Pro se defendants will ordinarily not be accorded discovery
pursuant to the District Discovery Policy, particularly if they
are held without bond and disclosure would require their
unsupervised possession of discovery materials. AUSAs shall
consult their supervisor(s) and the Senior Litigation Counsel
as to the most prudent method of discovery if a defendant is
accorded pro se representation. AUSAs should seek a court
order for the return of all discovery materials produced to
defense counsel in the event a represented defendant is later
granted permission to proceed pro se.

10.

AUSAs who become aware of any violation of an order
governing the dissemination of discovery should immediately
notify a supervisor so that steps can be taken to ameliorate
any harm or danger to witnesses, victims and cooperators.

11.

If expanded file discovery is not permitted by USAO policy or
under supervisory approval, AUSAs will arrange to comply
with Fed. R. Crim. P. 16, and all other Brady, Giglio and
Jencks Act disclosures through supervised inspections.

Making A Record
A.

AUSAs shall make a record of when and how information is
provided or otherwise disclosed to defense counsel and/or the
defendant:
1.

Production cover letters generally should describe the
information being provided and, where appropriate, list Bates
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numbers of disclosed documents.
2.

B.

All telephone conversations or other oral communications
with defense counsel describing discovery production,
withholding of documents or discovery requests from either
side should be documented, such as a memo to the file or a
follow-up email with counsel.

Keeping accurate and contemporaneous records
subsequent litigation, including post-conviction actions.

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