DISCOVERY POLICY
INTRODUCTION
AUSAs in the criminal division must be familiar with and fully comply with their
discovery obligations under Federal Rule of Criminal Procedure 16, the Jencks Act, Federal Rule
of Evidence 404(b), the Brady/Giglio line of cases, and the policies of the Department of Justice
and this office. In addition, AUSAs should be familiar with obligations imposed by the district
court rules. This policy collects the sources of the government's obligations to produce relevant
information to a defendant in a criminal case and sets forth discovery policies of the United
States Attorney's Office for the Northern District of California. The policies of the United States
Attorney's Office set forth in this document supersede any existing formal or informal discovery
policy, practices, or protocols that the Office has promulgated or adopted. Nothing in this
document is intended to create or confer any rights, privileges, or benefits to prospective or
actual witnesses or defendants. It is also not intended to have the force of law. See United States
v. Caceres, 440 U.S. 741 (1979). This discovery policy does not govern disclosure in cases
involving terrorism and national security. Policy concerning these cases will be dependent on
guidance currently being developed by the Department.
I.

DISCOVERY OBLIGATIONS
A.

Brady/Giglio

Government disclosure of material exculpatory and impeachment evidence is part of the
constitutional guarantee to a fair trial. Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v.
U.S., 405 U.S. 150, 154 (1972). The law requires the disclosure of exculpatory and
impeachment evidence when such evidence is material to guilt or punishment. Brady, 373 U.S.
at 87; Giglio, 405 U.S. at 154. Because Brady and Giglio are constitutional obligations,
Brady/Giglio evidence must be disclosed regardless of whether the defendant makes a request
for exculpatory or impeachment evidence. Kyles v. Whitley, 514 U.S. 419, 432-33 (1995).
Neither the Constitution nor this policy, however, creates a general discovery right for trial
preparation or plea negotiations. U.S. v. Ruiz, 536 U.S. 622, 629 (2002); Weatherford v. Bursey,
429 U.S. 545, 559 (1977).
Exculpatory and impeachment evidence is material to a finding of guilt—and thus the
Constitution requires disclosure—when there is a reasonable probability that effective use of the
evidence will result in an acquittal. U.S. v. Bagley, 475 U.S. 667, 676 (1985). Because it is
sometimes difficult to assess the materiality of evidence before trial, prosecutors generally must
take a broad view of materiality and err on the side of disclosing exculpatory and impeaching
evidence. Kyles, 514 U.S. at 439.

B.

Federal Rule of Criminal Procedure 16
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 Under Federal Rule of Criminal Procedure 16, the government must disclose to the
defendant, upon request, the following:
1. Any “relevant” oral statement made by the defendant in response to interrogation by a
person the defendant knew was a government agent, if the government intends to use
the statement at trial;
2. Any “relevant” written or recorded statement by the defendant in the government’s
control or that the government can obtain by due diligence, including any grand jury
testimony by the defendant;
3. Statements by employees of an organizational defendant, if the employee was legally
able to bind the defendant regarding the subject of the statement;
4. The defendant’s prior record;
5. Documents and objects that are material to preparing the defense, may be used by the
government in its case-in-chief, or have been obtained from the defendant;
6. Reports of any physical or mental examination or tests if the item is material to
preparing the defense and the government intends to use the item in its case-in-chief;
7. A written summary of any expert testimony that the government intends to introduce
at trial.
Rule 16 does not authorize the disclosure of reports, memoranda, or other internal
government documents made by an attorney for the government or other government agent in
connection with investigating or prosecuting the case.
Note that Rules 12.1, 12.2, and 12.3 may impose disclosure obligations on the
government when the defendant raises an alibi defense, an insanity defense, or a public authority
defense.
C.

Northern District of California Local Rule 16-1.

Local Rule 16-1 imposes additional discovery obligations on AUSAs in this district. This
rule should be read in conjunction with Part I.G. of this section, which addresses the U.S.
Attorney's Office policy on discovery.
16-1. Procedures for Disclosure and Discovery in Criminal Actions.
( a) Meeting of Counsel. Within 14 days after a defendant's plea of not guilty, the
attorney for the government and the defendant's attorney shall confer with respect
to a schedule for disclosure of the information as required by FRCrimP 16 or any
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 other applicable rule, statute or case authority. The date for holding the
conference can be extended to a day within 21 days after entry of plea upon
stipulation of the parties. Any further stipulated delay requires the agreement of
the assigned Judge pursuant to Civil L.R. 7-12.
(b) Order Setting Date for Disclosure. In the absence of a stipulation by the
parties, a schedule for disclosure of information as required by FRCrimP 16 or
any other applicable rule, statute or case authority may be set sua sponte by the
assigned Judge or Magistrate Judge. If a party has conferred with opposing
counsel as required by Crim. L.R. 16-1(a), the party may make an motion
pursuant to Crim. L.R. 47-4 to impose a schedule for such disclosure.
(c) Supplemental Disclosure. In addition to the information required by FRCrimP
16, in order to expedite the trial of the case, in accordance with a schedule
established by the parties at the conference held pursuant to Crim. L.R. 16-1(a) or
by the assigned Judge pursuant to Crim L.R. 16-1(b), the government shall
disclose the following:
(1) Electronic Surveillance. A statement of the existence or non-existence
of any evidence obtained as a result of electronic surveillance;
(2) Informers. A statement of the government's intent to use as a witness
an informant, i.e., a person who has or will receive some benefit from
assisting the government;
(3) Evidence of Other Crimes, Wrongs or Acts. A summary of any
evidence of other crimes, wrongs or acts which the government
intends to offer under FREvid 404(b), and which is supported by
documentary evidence or witness statements in sufficient detail that
the Court may rule on the admissibility of the proffered evidence; and
(4) Co-conspirator's Statements. A summary of any statement the
government intends to offer under FREvid 801(d)(2)(E) in sufficient
detail that the Court may rule on the admissibility of the statement.
D.

The Jencks Act

Under the Jencks Act, 18 U.S.C. § 3500, the government must produce the prior
statement of a government witness after the witness testifies on direct examination. Federal Rule
of Criminal Procedure 26.2 implements the Jencks Act and sets forth procedures for applying it.
Federal Rule of Criminal Procedure 12(h) states that Rule 26.2 applies at a suppression hearing
and therefore the government must produce prior relevant statements by government witnesses
who testify at a suppression hearing.
E.

Federal Rule of Evidence 404(b)

Rule 404(b) provides that when the government in a criminal case seeks to introduce
evidence of other crimes, wrongs, or acts committed by the defendant, it must, on the defendant's
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 request, “provide reasonable notice in advance of trial, or during trial if the court excuses pretrial
notice on good cause shown, of the general nature of any such evidence it tends to introduce at
trial.” Although the government should provide notice as early as possible, it is advisable to file
a pretrial motion in limine seeking the admission of Rule 404(b) evidence and delineating the
evidence that the government seeks to introduce.
F.

Department Policy

The U.S. Attorneys’ Manual, § 9-5.001, provides as follows:
Department policy 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). The policy
recognizes, however, that a trial should not involve the consideration of
information which is irrelevant or not significantly probative of the issues before
the court and should not involve spurious issues or arguments which serve to
divert the trial process from examining the genuine issues. Information that goes
only to such matters does not advance the purpose of a trial and thus is not subject
to disclosure.
Additional exculpatory information that 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.
Additional impeachment information that must be disclosed. 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.
Information. Unlike the requirements of Brady and its progeny, which focus on
evidence, the disclosure requirement of this section applies to information
regardless of whether the information subject to disclosure would itself constitute
admissible evidence.
Cumulative impact of items of information. While items of information viewed in
isolation may not reasonably be seen as meeting the standards outlined in
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 paragraphs 1 and 2 above, several items together can have such an effect. If this is
the case, all such items must be disclosed.
G.

U.S. Attorney's Office Policy
1. General Discovery Policy

This office has a longstanding practice of allowing AUSAs to provide discovery beyond
what is required under Rule 16 and other governing federal law. Providing liberal discovery may
facilitate an early resolution of some cases, and defense attorneys may agree in advance to
provide early reciprocal discovery in return for receiving greater discovery from the government.
In deciding whether to provide discovery beyond the government’s legal requirements, an AUSA
should always weigh the impact that discovery might have on the safety of witnesses,
informants, and victims of the alleged criminal activity and the likelihood that early disclosure
will lead the defendant to create false evidence.
In most cases, a case should not be indicted until the AUSA has gathered and is ready to
provide all Brady material and all discovery that the government is obligated to produce under
Federal Rule of Criminal Procedure 16. Discovery of Brady and Rule 16 material ordinarily
should be provided to the defendant at or before the defendant's arraignment and generally no
later than one week before the first district court appearance. As additional discoverable
materials come into the possession of the AUSA, they should be produced as soon as possible.
Jencks Act and Giglio material (that is, information that impeaches a government witness)
ordinarily should be produced at a reasonable time prior to trial. Exceptions to these early
discovery requirements may be made when producing discovery may affect the safety of a
witness, informant, or victim or for other compelling reasons. In addition, AUSAs who are
producing information in discovery that may endanger a witness or victim should consider
seeking a protective order to prevent dissemination of the information by defense counsel. If for
any reason an AUSA does not intend to produce discovery as early as possible, the AUSA
should consult with his or her supervisor.
2. Local Rules and Protocols
Although AUSAs have the discretion to provide discovery beyond the legal requirements
of Rule 16, it is important that such action by an AUSA not be deemed as an office concession or
acknowledgment that such discovery is legally required. In order to avoid any such inference
from being drawn, all AUSAs should include a disclaimer of the following nature at the
conclusion of discovery letters: “The provision of the foregoing discovery shall not be construed
as a concession or acknowledgment by the government that any or all of the foregoing discovery
is required under Rule 16, Jencks or other governing federal statutes or rules.”
As set forth in Part I.C., Criminal Local Rule 16-1 imposes discovery requirements
beyond those mandated by Federal Rule of Criminal Procedure 16. Our office opposed
enactment of Crim.L.R. 16-1(c) because the rule impermissibly expands otherwise applicable
discovery rights of defendants. For that reason, if a defendant relies on Crim.L.R. 16-1(c) in an
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 oral or written motion to request discovery otherwise not available, an AUSA should object on
the ground that the rule impermissibly expands the scope of discovery under Rule 16. In
addition, any defense motions to compel discovery based on Crim.L.R. 16-1(c) should be
immediately reported to the appropriate supervisor and the Chief of the Criminal Division so
that we can monitor and coordinate our litigation in this area.
3. Special policy on information in electronic communications
As explained in Part III, infra, substantive case-related communications may contain
discoverable information. In particular, e-mails or text messages written by AUSAs, agents, and
witnesses may contain information such as witness statements, information about witnesses,
commentary on a draft report of investigation (such as an FBI 302 or DEA 6), or assertions about
substantive issues in the case that could be construed as Brady/Giglio information or information
that falls within Rule 16 or the Jencks Act.
For these reasons, AUSAs should take special care to avoid creating electronic
communications (including e-mails and text messages) and voice mails that contain information
that may be subject to discovery. AUSA should also instruct the agents working on their cases to
abide by the same rule. In addition, AUSAs and agents should not engage in substantive case
discussions in e-mails, text messages, or other forms of electronic communication with witnesses
or potential witnesses of any kind. As a general rule, e-mails and text messages between
AUSAs, between AUSAs and agents, between agents, and between witnesses and government
personnel should be limited to scheduling or other procedural matters.
To ensure that AUSAs obtain all information that may be subject to discovery, an AUSA
should instruct agents working on a case to provide the AUSA with any e-mails that the agent
exchanged with a witness or a potential witness or that mentions a witness or potential witness.
The AUSA should review those e-mails, as well as any e-mails that the AUSA has written about
a case, to determine whether they contain information subject to discovery under Brady/Giglio,
Rule 16, or the Jencks Act. Text messages between agents and witnesses or potential witnesses
should also be reviewed to determine if they contain substantive information. If the AUSA
discovers such information, the e-mail or text message itself need not be disclosed but the
information must be disclosed to the defense in some form. When in doubt about whether an email or text message contains information subject to discovery, the AUSA should consult with
his or her supervisor and, if necessary, with the office's Professional Responsibility Officer.
II.

THE PROSECUTION TEAM
A.

Department policy
1.

USAM § 9-5.001 provides as follows:

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
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 enforcement officers and other government officials participating in the
investigation and prosecution of the criminal case against the defendant.
2.

Ogden Memo

In a memorandum issued January 4, 2010, Deputy Attorney General Ogden elaborated on
this requirement as follows:
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 Assistant United States
Attorneys and prosecutors from a Department litigating component or other
United States Attorney’s Office (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 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 agency include:

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 •
•

•
•
•
•
•
•

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
form the agency;
The degree to which information gathered by the prosecutor has been
shared with the agency;
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. Courts will generally evaluate the role of a state or local law
enforcement agency on a case-by-case basis. Therefore, prosecutors should make
sure they understand the law in their circuit and their office’s practice regarding
discovery in cases in which a state or local agency participated in the
investigation or on a task force that conducted the investigation.
Prosecutors are encouraged to err on the side of inclusiveness when identifying
the members of the prosecution team for discovery purposes. Carefully
considered efforts to locate discoverable information are more likely to avoid
future litigation over Brady and Giglio issues and avoid surprises at trial.
III.

REVIEW
A.

Files to review

The Ogden Memo directs prosecutors to review “all potentially discoverable material
within the custody or control of the prosecution team.” According to the Ogden Memo, that
review should include the following:
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 1. The Investigative Agency's Files: With respect to Department of Justice law
enforcement agencies, with limited exceptions, the prosecutor should be granted
access to the substantive case file and any other file or document the prosecutor
has reason to believe may contain discoverable information related to the matter
being prosecuted. Therefore, the prosecutor can personally review the file or
documents or may choose to request production of potentially discoverable
materials from the case agents. With respect to outside agencies, the prosecutor
should request access to files and/or production of all potentially discoverable
material. The investigative agency's entire investigative file, including documents
such as FBI Electronic Communications (ECs), inserts, emails, etc. should be
reviewed for discoverable information. If such information is contained in a
document that the agency deems to be an "internal" document such as an email,
an insert, an administrative document, or an EC, it may not be necessary to
produce the internal document, but it will be necessary to produce all of the
discoverable information contained in it. Prosecutors 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.
2. Confidential Informant (CI)/Witness (CW)/Human Source (CHS)/Source (CS)
Files: The credibility of cooperating witnesses or informants will always be at
issue if they testify during a trial. Therefore, prosecutors are entitled to access to
the agency file for each testifying CI, CW, CHS, or CS. Those files should be
reviewed for discoverable information and copies made of relevant portions for
discovery purposes. The entire informant/source file, not just the portion relating
to the current case, including all proffer, immunity, and other agreements,
validation assessments, payment information, and other potential witness
impeachment information should be included within this review.
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.
Prosecutors should take steps to protect non-discoverable, sensitive information
found within a CI, CW, CHS, or CS file. Further, prosecutors should consider
whether discovery obligations arising from the review of CI, CW, CHS, and CS
files may be fully discharged while better protecting government or witness
interests such as security or privacy via a summary letter to defense counsel rather
than producing the record in its entirety.
Prosecutors must always be mindful of security issues that may arise with respect
to disclosures from confidential source files. Prior to disclosure, prosecutors
should consult with the investigative agency to evaluate any such risks and to
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 develop a strategy for addressing those risks or minimizing them as much as
possible, consistent with discovery obligations.
3. Evidence and Information Gathered During the Investigation: Generally, all
evidence and information gathered during the investigation should be reviewed,
including anything obtained during searches or via subpoenas, etc. As discussed
more fully below in Step 2, in cases involving a large volume of potentially
discoverable information, prosecutors may discharge their disclosure obligations
by choosing to make the voluminous information available to the defense.
4. Documents or Evidence Gathered bv Civil Attorneys and/or Regulatorv
Agency in Parallel Civil Investigations: If a prosecutor has determined that a
regulatory agency such as the SEC is a member of the prosecution team for
purposes of defining discovery obligations, that agency's files should be reviewed.
Of course, if a regulatory agency is not part of the prosecution team but is
conducting an administrative investigation or proceeding involving the same
subject matter as a criminal investigation, prosecutors may very well want to
ensure that those files are reviewed not only to locate discoverable information
but to locate inculpatory information that may advance the criminal case. Where
there is an ongoing parallel civil proceeding in which Department civil attorneys
are participating, such as a qui tam case, the civil case files should also be
reviewed.
5. Substantive Case-Related Communications: "Substantive" case-related
communications may contain discoverable information. Those communications
that contain discoverable information should be maintained in the case file or
otherwise preserved in a manner that associates them with the case or
investigation. "Substantive" case-related communications are most likely to occur
(1) among 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, 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.
Prosecutors should also remember that with few exceptions (see, e.g.,
Fed.R.Crim.P. 16(a)(1)(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
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 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.
6. Potential Giglio Information Relating to Law Enforcement Witnesses:
Prosecutors should have candid conversations with the federal agents with whom
they work regarding any potential Giglio issues, and they should follow the
procedure established in USAM 9-5.100 whenever necessary before calling the
law enforcement employee as a witness. Prosecutors should be familiar with
circuit and district court precedent and local practice regarding obtaining Giglio
information from state and local law enforcement officers.
7. Potential Giglio Information Relating to Non-Law Enforcement Witnesses and
Fed.R.Evid. 806 Dec!arants: All potential Giglio information known by or in the
possession of the prosecution team relating to non-law enforcement witnesses
should be gathered and reviewed. That information includes, but is not limited to:
Prior inconsistent statements (possibly including inconsistent attorney proffers,
see United States v. Triumph Capital Group, 544 F.3d 149 (2d Cif. 2008))
Statements or reports reflecting witness statement variations (see below)
Benefits provided to witnesses including:
Dropped or reduced charges
Immunity
Expectations of downward departures or motions for reduction of sentence
Assistance in a state or local criminal proceeding
Considerations regarding forfeiture of assets
Stays of deportation or other immigration status considerations
S-Visas
Monetary benefits
Non-prosecution agreements
Letters to other law enforcement officials (e.g. state prosecutors, parole boards)
setting forth the extent of a witness's assistance or making substantive
recommendations on the witness's behalf
Relocation assistance
Consideration or benefits to culpable or at risk third-parties
Other known conditions that could affect the witness's bias such as:
Animosity toward defendant
Animosity toward a group of which the defendant is a member or with which the
defendant is affiliated
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 Relationship with victim
Known but uncharged criminal conduct (that may provide an incentive to curry
favor with a prosecutor)
Prior acts under Fed.R.Evid. 608
Prior convictions under Fed.R.Evid. 609
Known substance abuse or mental health issues or other issues that could affect
the witness's ability to perceive and recall events
8. Information Obtained in Witness Interviews: Although not required by law,
generally speaking, witness interviews should be memorialized by the agent.
Agent and prosecutor notes and original recordings should be preserved, and
prosecutors should confirm with agents that substantive interviews should be
memorialized. When a prosecutor participates in an interview with an
investigative agent, the prosecutor and agent should discuss note-taking
responsibilities and memorialization before the interview begins (unless the
prosecutor and the agent have established an understanding through prior course
of dealing). Whenever possible, prosecutors 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, prosecutors should try to have another office employee
present. [Note: in the NDCA, prosecutors should only conduct an interview
of a witness without an agent or other government employee present in
extraordinary circumstances.] Interview memoranda of witnesses expected to
testify, and of individuals who provided relevant information but are not expected
to testify, should be reviewed.
a. Witness Statement Variations and the Duty to Disclose: Some
witnesses’ statements will vary during the course of an interview or
investigation. For example, they may initially deny involvement in
criminal activity, and the information they provide may broaden or change
considerably over the course of time, especially if there are a series of
debriefings that occur over several days or weeks. Material variances in a
witness's statements should be memorialized, even if they are within the
same interview, and they should be provided to the defense as Giglio
information.
b. Trial Preparation Meetings with Witnesses: Trial preparation meetings
with witnesses generally need not be memorialized. However, prosecutors
should be particularly attuned to new or inconsistent information disclosed
by the witness during a pre-trial witness preparation session. New
information that is exculpatory or impeachment information should be
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 disclosed consistent with the provisions of USAM 9-5.001 even if the
information is first disclosed in a witness preparation session. Similarly, if
the new information represents a variance from the witness's prior
statements, prosecutors should consider whether memorialization and
disclosure is necessary consistent with the provisions of subparagraph (a)
above.
c. Agent Notes: Agent notes should be reviewed if there is a reason to
believe that the notes are materially different from the memorandum, if a
written memorandum was not prepared, if the precise words used by the
witness are significant, or if the witness disputes the agent's account of the
interview. Prosecutors should pay particular attention to agent notes
generated during an interview of the defendant or an individual whose
statement may be attributed to a corporate defendant. Such notes may
conlain information that must be disclosed pursuant to Fed.R.Crim.P.
16(a)(1)(A)-(C) or may themselves be discoverable under Fed.R.Crim.P.
16(a)(1)(B). See, e.g., United States v. Clark, 385 F.3d 609, 619-20 (6th
Cir. 2004) and United States v. Vaffee, 380 F. Supp. 2d II, 12-14 (D. Mass.
2005).
B.

Personnel who conduct the review

The Odgen Memo states as follows:
Having gathered the information described above, prosecutors
must ensure that the material is reviewed to identify discoverable
information. It would be preferable if prosecutors could review the
information themselves in every case, but such review is not
always feasible or necessary. The prosecutor is ultimately
responsible for compliance with discovery obligations.
Accordingly, the prosecutor should develop a process for review of
pertinent information to ensure that discoverable information is
identified. Because the responsibility for compliance with
discovery obligations rests with the prosecutor, the prosecutor's
decision about how to conduct this review is controlling. This
process may involve agents, paralegals, agency counsel, and
computerized searches. Although prosecutors may delegate the
process and set forth criteria for identifying potentially
discoverable information, prosecutors should not delegate the
disclosure determination itself. In cases involving voluminous
evidence obtained from third parties, prosecutors 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
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 disclosure may not be feasible in national security cases involving
classified information.

IV.

GIGLIO AND IMPEACHMENT INFORMATION
A.

Department Policy

The U.S. Attorney’s Manual, § 9-5.100, sets forth the Department's Giglio policy. That
policy defines Giglio information as follows:
The exact parameters of potential impeachment information are not easily
determined. Potential impeachment information, however, has been generally
defined as impeaching information which is material to the defense. It also
includes information that either casts a substantial doubt upon the accuracy of any
evidence—including 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 may include but is not
strictly limited to: (a) specific instances of conduct of a witness for the purpose of
attacking the witness' credibility or character for truthfulness; (b) evidence in the
form of opinion or reputation as to a witness' character for truthfulness; (c) prior
inconsistent statements; and (d) information that may be used to suggest that a
witness is biased.
The Department's policy also sets forth procedures for disclosing potential impeachment
information relating to Department of Justice employees. Although each investigative agency
employee is obligated to inform prosecutors with whom they work of potential impeachment
information as early as possible prior to providing a sworn statement or testimony in any
criminal investigation or case, a prosecutor may also decide to request potential impeachment
information from the investigative agency. The procedure for requesting information is set forth
in the next section on USAO Giglio policy.
An agency that receives a request for Giglio material on an agent is required to disclose
the following: (a) any finding of misconduct that reflects upon the truthfulness or possible bias of
the employee, including a finding of lack of candor during an administrative inquiry; (b) any past
or pending criminal charge brought against the employee; and (c) any credible allegation of
misconduct that reflects upon the truthfulness or possible bias of the employee that is the subject
of a pending investigation. Allegations that cannot be substantiated, are not credible, or have
resulted in the exoneration of an employee generally are not considered to be potential
impeachment information. Upon request, such information which reflects upon the truthfulness
or bias of the employee, to the extent maintained by the agency, will be provided to the
prosecuting office under the following circumstances: (a) when the government is required by a
court decision in the district where the investigation or case is being pursued; (b) when (i) the
allegation was made by a federal prosecutor, magistrate judge, or judge; or (ii) the allegation
received publicity; (c) when the U.S. Attorney's Office and the agency agree that such disclosure
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 is appropriate, based upon exceptional circumstances involving the nature of the case or the role
of the agency witness; or (d) when disclosure is otherwise deemed appropriate by the agency.
The agency is responsible for advising the prosecuting office, to the extent determined, whether
any aforementioned allegation is unsubstantiated, not credible, or resulted in the employee's
exoneration.
B.

U.S. Attorney's Office Policy

The policy of this office is to fully satisfy its constitutional obligations to disclose
impeachment material concerning agency witnesses in all criminal cases. Accordingly, all
AUSAs must be familiar with their responsibilities under the Giglio, Brady, and Henthorn line of
cases. We are responsible for disclosing to the defense information that potentially (1)
impeaches the honesty, credibility, or veracity of a government witness or (2) tends to exculpate
the defendant or mitigate potential punishment. We have special responsibilities under Henthorn
for witnesses who are federal government employees or who are cross-designated from state or
local law enforcement agencies if we also have possession of their personnel files.
Listed below is a summary of the procedures that must be followed for these witnesses to
determine if there is any disclosable information that is potentially impeaching.
1. Request to Agencies
Requesting Official: The Department's Giglio policy requires that a single representative
in this Office be designated as the Requesting Official who formally makes the request to
agencies for potential impeaching material.
Request: Although the Office has a single requesting official, each AUSA is responsible
for preparing a letter to be sent to the agency where a testifying witness is employed. The letter
should be signed by the individual AUSA, but to comply with Department policy the request
must be made in the name of the office's Requesting Official. The Requesting Official should
receive a copy of each letter that an AUSA sends to an agency. The Requesting Official must be
kept informed of any discussions with agency counsel concerning Giglio material. The form
letter for making a request can be found at [hyperlink]. Any material alterations in this form
must be approved by the Requesting Official. The list of agency officials to whom the requests
should be sent is located at [hyperlink].
Timing: Requests for agency inquiries should be sent to the agencies at least 30 days
before trial and preferably 45 days before trial. Requests may be sent further in advance, and
such advance inquiries are encouraged.
Reply: Upon receiving a reply from an agency in response to the office's request, the
Requesting Official will promptly forward that reply to the trial AUSA.
Review and Decision on Disclosure: The trial AUSA will review the information
received from the agency and determine whether that information should be disclosed to the
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 court or to the defense. If the trial AUSA believes that any potential information received from
an agency should be disclosed as Giglio material, and the agency does not oppose disclosure, the
information should ordinarily be disclosed. When the AUSA is unsure whether to disclose
information, or in any case in which the agency opposes disclosure, the AUSA should consult
with his or her supervisor. AUSAs and their supervisors may consult with the Requesting
Official or the office's Professional Responsibility Officer. If the matter cannot be resolved by
the AUSA, the supervisor, the Requesting Official, or the PRO, the matter should be referred to
the Criminal Chief.
Review and Decision on Non-Disclosure: The trial AUSA will review the information
received from the agency and determine whether that information should be disclosed to the
court or to the defense. If the trial AUSA believes that any potential information received from
an agency should not be disclosed as Giglio material, the AUSA must confirm that decision with
his or her supervisor. If the trial AUSA and his or her supervisor agree that the information need
not be disclosed, then disclosure need not be made. When any doubt exists about whether to
disclose information, or in any case in which the agency opposes disclosure, the AUSA should
consult with the Requesting Official or the office's Professional Responsibility Officer. If the
matter cannot be resolved by the AUSA, the supervisor, the Requesting Official, or the PRO, the
matter should be referred to the Criminal Chief.
In Camera Review: When the office determines, after consultation with the agency, that
guidance from the court is necessary to ascertain whether or to what extent disclosure is required,
a submission may be made to the district court ex parte and in camera to seek a decision as to
whether disclosure is required and, if so, the form or extent of the required disclosure. An
AUSA should not make an ex parte, in camera submission without permission from his or her
supervisor. Such filings should be made sparingly.
If an AUSA makes an ex parte, in camera submission, the submission should include
only the impeachment information and those legal arguments that cannot be made without
disclosing the impeachment information itself. Notice must be provided to the defense when an
ex parte, in camera submission is made. The notice must inform the defense that a sealed
pleading has been made, describe the general nature of the submission, and contain any legal
arguments that can be made without disclosing the impeachment material.
Predisclosure Consultation with Agency: No disclosure of impeachment information
obtained from an agency pursuant to this policy may be made without obtaining the agency's
views on disclosure. The agency's views should be sought early enough to allow the agency time
to review the decision to disclose the information and fully express its views. If the agency, after
consultation with the AUSA and his or her supervisor, objects to a decision to disclose, the
matter should be referred to the Requesting Official. If the Requesting Official cannot resolve
the dispute, the issue should be referred to the Criminal Chief. The Criminal Chief will not
resolve the dispute without consulting with the agency.

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 Protective Order: If the office decides to disclose potentially impeaching information
about an agency witness, the trial AUSA will, when appropriate, seek a protective order to limit
the use and further dissemination of the information by defense counsel.
Copies of Disclosure: When the AUSA discloses information to the court or the defense,
the AUSA will provide a copy of the information disclosed, along with any pertinent judicial
rulings or pleadings, to the relevant agency officials and the Requesting Official.
Confidentiality: The Requesting Official and the AUSA will preserve the security and
confidentiality of potential impeachment information through proper storage and restricted
access.
Notice of Conclusion of Case: When a request has been made to an agency for
information, the AUSA must advise that agency when the need for such information has ended.
This notification must be provided because the agency is under a continuing duty to provide any
new impeaching information as long as the need for that information exists. The AUSA may
rely on the case agent or other agent assigned to the case to convey to the relevant agency that
the case has been concluded. Notification to the agency shall be provided no later than the time
of sentencing, acquittal, dismissal, or other final action.
Unsubstantiated Allegations: Information received from an agency concerned allegations
that have not been substantiated, were not credible, or that resulted in exoneration ordinarily
need not be disclosed to the defense. When in doubt, however, an AUSA should consult with his
or her supervisor. Special care should be taken to preserve the confidentiality of such
information. Any such information, if not disclosed to the defense, shall be returned to the
agency, along with all copies made, at the conclusion of the case.
System of Records: The office may not retain in any system of records that can be
accessed by the identity of an employee potential impeachment information that was provided by
an agency, except that the Requesting Official may maintain a system of records of information
disclosed to defense counsel. In particular, the Requesting Official may maintain the
information disclosed, along with any pertinent judicial rulings, related pleadings,
correspondence, and memoranda in a system of records that can be accessed by the identity of
the employee.
Updating Records: The Requesting Official will check this office's system of records
when requesting information about a specific witness. Before any AUSA uses or relies on
information included in a system of records maintained by the office, the Requesting Official
shall contact the relevant agency to determine the status of the potential impeachment
information and shall add any additional information provided to the system of records. After
receiving any update, the Requesting Official will advise the trial AUSA of the prior disclosures.
The AUSA shall keep such information confidential in the same manner as initial disclosures
from the agency.
2. Oral Inquiry to Witnesses
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 Inquiry Required: AUSAs must conduct an oral inquiry of any federal, state, and/or local
government employee witness before that witness submits any sworn statement or testifies at any
proceeding. The obligation to conduct the inquiry extends to agents who will testify under oath
in any proceeding or who will be the affiant on a complaint, search warrant, or Title III affidavit.
Use of Form: The Office has adopted a form to guide the inquiry to law enforcement
agents, and the questions on the form should be asked of every witness who will provide a sworn
affidavit or testimony. The form can be found on the Wordperfect drop-down menu and should
be included when a new case jacket is issued to an AUSA. The form should be completed for
each agent who will provide a sworn statement or testimony. The agent's yes and no answers
should be recorded on the form. If the agent answers "no" to every question, the form should be
maintained in the case file until the conclusion of the case, including any appeal.
If the agent answers "yes" to any question, the AUSA should conduct an additional
inquiry to elicit any potential impeachment information. That information may be recorded on
the form or on a separate sheet of paper. If the information is recorded on a separate sheet, it
should be physically attached to the form.
Determination to Disclose Information: If the AUSA believes or harbors any doubt over
whether information provided by the agent in response to the inquiry must be disclosed in a
complaint, search warrant affidavit, or Title III application or provided to the defense, the AUSA
should consult with his or her supervisor. If the supervisor agrees that the information should be
disclosed, the AUSA or his or her supervisor should obtain the agency's position on whether the
information should be disclosed. If the agency objects to disclosure, then the matter should be
resolved pursuant to the procedure described in paragraph 1, above.
Protective Order: If the office decides to disclose potentially impeaching information
about an agency witness, the trial AUSA will, when appropriate, seek a protective order to limit
the use and further dissemination of the information by defense counsel.
Retention and Destruction of Form: If information provided by an agent in response to an
oral inquiry is disclosed to the defense, all documents regarding the disclosure, including the
form, should be maintained in the case file, and a copy of all relevant documents should be sent
to the Requesting Official. The Requesting Official will preserve that information in a system of
records identified by the agent's name.
If information provided by the agent is not disclosed, then the form and any notes or
other documents created to record the agents disclosure should be maintained in the case file, and
a copy should be sent to the Requesting Official. At the conclusion of the case, the form may be
maintained in the case file, but it should not be retained in any record that can be accessed by the
name of the agent.
V.

DISCLOSURES
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 The Ogden Memo states as follows:
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"). Prosecutors must familiarize
themselves with each of these provisions and controlling case law that interprets
these provisions. In addition, prosecutors should be aware that USAM 9-5.001
details the Department's policy regarding the disclosure of exculpatory and
impeachment information and provides for broader disclosures than required by
Brady and Giglio. Prosecutors are also encouraged to provide discovery broader
and more comprehensive than the discovery obligations. If a prosecutor chooses
this course, the defense should be advised that the prosecutor is electing to
produce discovery beyond what is required under the circumstances of the case
but is not committing to any discovery obligation beyond the discovery
obligations set forth above.
Considerations Regarding the Scope and Timing of the Disclosures: 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 provide broad
and early discovery consistent with any countervailing considerations. But when
considering providing discovery beyond that required by the discovery
obligations or providing discovery sooner than required, prosecutors should
always consider any appropriate countervailing concerns in the particular case,
including, but not limited to: protecting victims and witnesses from harassment or
intimidation; protecting the privacy interests of witnesses; protecting privileged
information; protecting the integrity of ongoing investigations; protecting the trial
from efforts at obstruction: protecting national security interests; investigative
agency concerns; enhancing the likelihood of receiving reciprocal discovery by
defendants; any applicable legal or evidentiary privileges; and other strategic
considerations that enhance the likelihood of achieving a just result in a particular
case. In most jurisdictions, reports of interview (ROIs) of testifying witnesses are
not considered Jencks material unless the report reflects the statement of the
witness substantially verbatim or the witness has adopted it. The Working Group
determined that practices differ among the USAOs and the components regarding
disclosure of ROIs of testifying witnesses. Prosecutors should be familiar with
and comply with the practice of their offices.
Prosecutors should never describe the discovery being provided as "open file."
Even if the prosecutor intends to provide expansive discovery, it is always
possible that something will be inadvertently omitted from production and the
prosecutor will then have unintentionally misrepresented the scope of materials
provided. Furthermore, because the concept of the "file" is imprecise, such a
representation exposes the prosecutor to broader disclosure requirements than
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 intended or to sanction for failure to disclose documents, e.g. agent notes or
internal memos, that the court may deem to have been part of the "file." When
the disclosure obligations are not clear or when the considerations above conflict
with the discovery obligations, prosecutors may seek a protective order from the
court addressing the scope, timing, and form of disclosures.
Timing: Exculpatory information, regardless of whether the information is
memorialized, must be disclosed to the defendant reasonably promptly after
discovery. Impeachment information, which depends on the prosecutor's decision
on who is or may be called as a government witness, will typically be disclosed at
a reasonable time before trial to allow the trial to proceed efficiently. See USAM
9-5.001. Section 9-5.001 also notes, however, that witness security, national
security, or other issues may require that disclosures of impeachment information
be made at a time and in a manner consistent with the policy embodied in the
Jencks Act. Prosecutors should be attentive to controlling law in their circuit and
district governing disclosure obligations at various stages of litigation, such as
pre-trial hearings, guilty pleas, and sentencing.
Prosecutors should consult the local discovery rules for the district in which a
case has been indicted. Many districts have broad, automatic discovery rules that
require Rule 16 materials to be produced without a request by the defendant and
within a specified time frame, unless a court order has been entered delaying
discovery, as is common in complex cases. Prosecutors must comply with these
local rules, applicable case law, and any final court order regarding discovery. In
the absence of guidance from such local rules or court orders, prosecutors should
consider making Rule 16 materials available as soon as is reasonably practical but
must make disclosure no later than a reasonable time before trial. In deciding
when and in what format to provide discovery, prosecutors should always
consider security concerns and the other factors set forth in subparagraph (A)
above. Prosecutors should also ensure that they disclose Fed.R.Crim.P.
16(a)(1)(E) materials in a manner that triggers the reciprocal discovery
obligations in Fcd.R.Crim.P. 16(b)(1).
Discovery obligations are continuing, and prosecutors should always be alert to
developments occurring up to and through trial of the case that may impact their
discovery obligations and require disclosure of information that was previously
not disclosed.
Form of Disclosure: There may be instances when it is not advisable to turn over
discoverable information in its original form, such as when the disclosure would
create security concerns or when such information is contained in attorney notes,
internal agency documents, confidential source documents, Suspicious Activity
Reports, etc. If discoverable information is not provided in its original form and is
instead provided in a letter to defense counsel, including particular language,
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 where pertinent, prosecutors should take great care to ensure that the full scope of
pertinent information is provided to the defendant.
B.

Record
1. The Ogden Memo states as follows:

One of the most important steps in the discovery process is keeping good records
regarding disclosures. Prosecutors should make a record of when and how
information is disclosed or otherwise made available. While discovery matters are
often the subject of ligation in criminal cases, keeping a record of the disclosures
confines the litigation to substantive matters and avoids time-consuming disputes
about what was disclosed. These records can also be critical when responding to
petitions for post-conviction relief, which are often filed long after the trial of the
case. Keeping accurate records of the evidence disclosed is no less important than
the other steps discussed above, and poor records can negate all of the work that
went into taking the first three steps.
2. U.S. Attorney's Office Policy:
AUSAs must maintain a specific and accurate record of the items they provide in
discovery. Ordinarily, that means a complete Bate numbered set of the discovery
provided, or, if the number of documents is too large, an accurate and complete
description of the documents that were made available to the defense.
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, 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
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 specific reason to believe that one or more elements of the IC possess discoverable material in
the following kinds of criminal cases:
●

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

●

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

●

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

●

Other significant cases involving international suspects and targets; and

●

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

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