Discovery Plan
Office of the United States Attorney
Northern District of Ohio
October 15, 2010
This office has a proud tradition of robust and ethical conduct in its litigation efforts,
including discovery in criminal cases. However, there has not heretofore been a single document
providing guidance and memorializing best practices for a district discovery plan. The following
discovery plan is designed to guide Assistant United States Attorneys (AUSAs) on the best
practices for conducting discovery to insure compliance with the Constitution of the United
States, applicable laws, and Department of Justice policy.1 No guidance can anticipate every
issue that may arise. By providing a single plan for discovery, though, this office seeks to reduce
intraoffice disparities in discovery practices that result not from different case-related concerns
(which are legitimate) but instead from differing customs and habits of individual AUSAs. In
addition, when faced with difficult discovery issues, AUSAs should understand that they are not
alone. AUSAs are encouraged to consult their unit chiefs, office management, and the
Brady/Giglio officer for advice.
This discovery plan is not intended to and does not create any substantive rights on
behalf of any person appearing in the courts of the United States.2
I. General Principles
In general, AUSAs should strive to provide broad discovery to defense counsel in
criminal cases consistent with the interests of the United States. As early as possible, even
before charges are sought, AUSAs should discuss any discovery with the case agent on the
investigation. That discussion should include: 1) gathering information that is likely to be
discoverable; 2) possible Brady or Giglio issues that could affect investigative or litigation
strategy; 3) electronic discovery; 4) the possible review of informant files where applicable;
5) a plan for the review of potential discoverable materials; and 6) any other potential discovery

1

Pursuant to the memorandum of Acting Deputy Attorney General Gary Grindler of March 26,
2010, this is the draft of this District’s discovery plan being submitted for review. This document is,
therefore, deliberative and predecisional in nature.
2

This draft discovery plan is not intended to supplant or alter legal precedent, court orders, and
local rules. It provides prospective guidance only and is not intended to have the force of law or to create
or confer any rights, privileges, or benefits. See United States v. Caceres, 440 U.S. 741 (1979). If defense
counsel cites this guidance, or the January 4, 2010 Department of Justice guidance memorandum in
support of an argument for additional discovery, AUSAs should advise their unit supervisor and the
Brady/Giglio Officer before responding.

1

 issues. To the extent possible, these matters should be addressed and a plan adopted before an
Indictment is sought.
The discovery obligations of AUSAs are generally established by Federal Rules of
Criminal Procedure 16 and 26.2, 18 U.S.C. §3500 (the Jencks Act), Brady v. Maryland, 373 U.S.
83 (1963) and Giglio v. United States, 405 U.S. 150 (1972) and their progeny. In addition, the
United States Attorney’s Manual describes the Department's policy for disclosure of exculpatory
and impeachment information. See USAM §9-5.001. Other sources of information include The
Professional Responsibility Advisory Office July 2008 monograph entitled “A Prosecutor’s Duty
to Disclose;” the Department’s guidance memorandum dated January 4, 2010; and other training
materials including the Department’s Discovery “Blue Book” to be issued in the near future.
The USAM § 9-5.001(B) provides:
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. United States, 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 they are
Constitutional obligations, Brady and 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.
United States v. Ruiz, 536 U.S. 622, 629 (2002); Weatherford v. Bursey, 429 U.S. 545,
559 (1977).
In United States v. Bagley, 475 U.S. 667, 676 (1985), the Court held that evidence is
material if there is a reasonable probability that had the evidence been disclosed, the result
would have been different. A reasonable probability does not mean that it was more likely the
defendant would have been acquitted. A “reasonable probability” means a probability sufficient
to undermine confidence in the outcome.
USAM § 9-5.001(B)1 states in part:
Recognizing that it is sometimes difficult to assess the materiality of evidence before
trial, AUSAs generally must take a broad view of materiality and err on the side of
disclosing exculpatory and impeaching evidence (emphasis added). Kyles, 514 U.S. at
439. While ordinarily evidence that would not be admissible at trial need not be
disclosed, this policy encourages AUSAs to err on the side of disclosure if admissibility
is a close question.
Thus, Departmental policy strongly encourages AUSAs to disclose all potential Brady
and Giglio material, whether or not it is material.

2

 The following is a non-exclusive list of examples of Brady material:
•
•
•

•

•
•

Evidence tending to show that someone else committed the criminal act.
Evidence tending to show that the defendant did not have the requisite knowledge
or intent.
Evidence tending to show the absence of any element of the offense, or which is
inconsistent with any element of the offense (e.g., evidence showing that an
alleged interstate wire transfer was actually an intrastate wire transfer).3
Evidence that casts a substantive doubt upon the accuracy of evidence including
but not limited to witness testimony the AUSA intends to rely on to prove an
element of any crime charged, or which may have a significant bearing on the
admissibility of the prosecution’s evidence. USAM 9-5.001©.
Evidence tending to show the existence of an affirmative defense, such as
entrapment or duress.
Evidence tending to show the existence of past or present circumstances that
might reduce the defendant’s guideline range under the federal Sentencing
Guidelines, support a request for a sentence at the low end of the guideline range
or for a downward departure or variance, or make inapplicable to the defendant a
mandatory minimum sentence.

II. Assistant U.S. Attorneys’ Obligations
In order to meet discovery obligations in a given case, AUSAs should be familiar with
the authorities mentioned above and with the judicial interpretations that discuss or address the
application of these authorities to particular facts. Rules of Professional Conduct in most
jurisdictions also impose ethical obligations on AUSAs regarding discovery in criminal cases. In
addition, it is important for AUSAs to consider thoroughly how to meet their discovery
obligations in each case. Toward that end, the United States Attorney’s Office for the Northern
District of Ohio (USAO) has drafted this guidance for AUSAs regarding criminal discovery.
This discovery plan is intended to establish a methodical approach to the consideration of
discovery obligations that AUSAs should follow to avoid lapses that can result in consequences
adverse to the Department’s pursuit of justice and the AUSA’s professional standing as well as
encouraging a uniform approach to discovery issues.
By following the steps described below and being familiar with laws and policies
regarding discovery obligations, AUSAs are more likely to meet all legal requirements, to make
consistent and considered decisions about disclosures in a particular case, and to achieve a just
result in every case. AUSAs are primarily responsible for providing discovery in their cases.
However, the USAO and the Department of Justice make available a wide array of resources to
assist AUSAs in this process. Unit Chiefs, the Criminal Division Chief, office management, and

3

The AUSA must disclose this information even if he or she does not believe such information
will make the difference between conviction and acquittal for a charged crime. USAM § 9-5.0001(C).

3

 the USAO’s Brady/Giglio Officer are all available to help and to provide assistance to AUSAs if
discovery disputes arise between AUSAs, agents or defense counsel. In addition, the
Department’s Professional Responsibility Advisory Office (PRAO) is also available to provide
guidance to AUSAs on certain discovery and other matters. AUSAs are encouraged to make use
of all available resources when difficult discovery issues arise.
III. Guidance for Assistant U.S. Attorneys Regarding Criminal Discovery
Step 1: Gathering and Retrieving Potentially Discoverable Information4
A. Where to Look-The Prosecution Team
Department policy states:
It is the obligation of AUSAs, in preparing for trial to seek all exculpatory and
impeachment information from all members of the prosecution team. Members of the
prosecution team include federal, state, and local law enforcement officers and other
government officials participating in the investigation and prosecution of the criminal
case against the defendant.
USAM § 9-5.001. This duty to search also extends to information AUSAs are required to
disclose under Federal Rules of Criminal Procedure 16 and 26.2 and the Jencks Act.
In most cases, "the prosecution team" will include federal, state, and local law
enforcement officers and other government officials participating in the investigation and
prosecution of the criminal case against the defendant. In multi-district investigations,
investigations that include both AUSAs and prosecutors from a Department litigating component
or other USAOs, 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 AUSA should consider whether the relationship with the other agency
is close enough to make it part of the prosecution team for discovery purposes. AUSAs must use
diligent and good faith efforts to obtain potentially discoverable materials.
Some factors to be considered in determining whether to review potentially discoverable
information from another federal agency include:
• Whether or not the AUSA and the agency conducted a joint investigation or shared
resources related to investigating the case;

4

For the purposes of this memorandum, "discovery” or "discoverable information”includes
information required to be disclosed by Fed.R.Crim.P. 16 and 26.2, the Jencks Act, Brady, Giglio, and
additional information disclosable pursuant to USAM § 9-5.001.

4

 • Whether or not 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 or not the AUSA knows of and has access to discoverable information held
by the agency;
• Whether or not the AUSA has obtained other information and/or evidence from the
agency;
• The degree to which information gathered by the AUSA has been shared with the
agency;
• Whether or not a member of an agency has been made a Special Assistant United States
Attorney and is assigned as a member of the prosecution team;
• 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. While such groups can be of invaluable assistance to
law enforcement, task forces and multi-jurisdictional investigations also can create significant
challenges in the discovery context. In these situations, it is important for the AUSA to
determine which of the member agencies are part of the prosecution team. In such cases,
AUSAs should consider (1) whether state or local agents are working on behalf of the prosecutor
or are under the AUSA’s control; (2) the extent to which state and federal governments are part
of a team, are participating in joint investigation, or are sharing resources; and (3) whether the
AUSA 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.5

5

Compare United States v. Morris, 80 F.3d 1151, 1169-70 (7th Cir. 1996) (“Because [the OTS,
SEC, and IRS] were [not] part of the team that investigated this case or participated in its prosecution,”
materials in their possession were not subject to Brady. “Kyles. . .can[not] be read as imposing a duty on
the prosecutor’s office to learn of information possessed by other government agencies that have no
involvement in the investigation or prosecution at issue.”), with United States v. Wood, 57 F.3d 733, 737
(9th Cir. 1995) (Defendant convicted of obstructing lawful function of FDA; “[f]or Brady purposes, the
FDA and the prosecutor were one. We need not decide how far the unity of the government extends

5

 AUSAs are encouraged to err on the side of inclusiveness when identifying the
members of the prosecution team for discovery purposes when it is feasible. Carefully
considered efforts to locate discoverable information are more likely to avoid future litigation
over Brady and Giglio issues and avoid surprises at trial.
B. What to Review
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.
The review process should cover the materials gathered, including the following areas:
1. The Investigative Agency’s Files: With respect to Department law enforcement
agencies, with limited exceptions,6 the AUSA should be granted access to the substantive case
files and any other file or document the prosecutor has reason to believe may contain
discoverable information related to the matter being prosecuted.7 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. If
reasonable access is not granted, an AUSA should notify his or her supervisor. The investigative
agency's entire investigative file should be reviewed for discoverable information. If such
information is contained in a document that the agency deems to be an "internal” document, 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

under the Brady rule. We hold only that under Brady the agency charged with administration of the
statute, which has consulted with the prosecutor in the steps leading to prosecution, is to be considered as
part of the prosecution in determining what information must be made available to the defendant charged
with violation of the statute.”). See also, Kyles v. Whitley, 514 U.S. 419,437 (1995) (prosecution team
includes “others acting on the government’s behalf on this case.”); Maldowan v. City of Warren, 578
F.3rd 351, 379 (6th Cir. 2009)(prosecution team includes all law enforcement personnel directly involved
in the investigation or prosecution of a case.); United States v. Lochmondy, 890 F.2d 817, 823-24 (6th
Cir. 1989)(where prosecutor did not have witness’s tax return on file with the IRS, Brady did not apply
because IRS not involved in investigation.); United States v. Graham, 484 F.3d 413,417 (6th
Cir.2007)(rejecting defense claim that (late-arriving) information possessed by cooperating witness was
imputed to government, holding that the government did not have sufficient control over CW so as “to
transform him into an agent of the prosecution.”).
6

Exceptions to an AUSA’s access to Department law enforcement agencies’ files are documented
in agency policy, and may include, for example, access to a non-testifying source’s files.
7

Nothing in this guidance alters the Department's Policy Regarding the Disclosure to AUSAs of
Potential Impeachment Information Concerning Law Enforcement Agency Witnesses contained in
USAM § 9-5.100.

6

 thereof should also be reviewed as necessary.
2. Confidential Informant (CI)/Witness (CW)/Human Source (CHS)/Source (CS) Files:
AUSAs should seek access to the agency file for each testifying CI, CW, CHS, or CS. AUSAs
should make a diligent and good faith effort to obtain and review those files for discoverable
information and make copies 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. The timing of the AUSA’s
request for review of the informant’s file is important. Although an early request for a source
file review is the safest course of conduct given the fact that the informant file may be in another
district, and/or that review may be time consuming, AUSAs should consider whether a plea is
likely or whether it is likely the source will testify. If it is unlikely the source will testify, an
AUSA can delay the review but, in any event, the review must be done sufficiently in advance of
trial such that any required disclosures can be used effectively by the defense. In some cases,
where the testimony is critical or an investigative strategy might be affected, AUSAs should
consider a pre-indictment review of source files.
If an AUSA believes that the circumstances of the case warrant review of a non-testifying
source's file, the AUSA should follow the agency's procedures for requesting the review of such
a file. If such efforts are presenting difficulties, an AUSA should consult with his or her
supervisor.
AUSAs should take steps to protect the non-discoverable, sensitive information found
within a CI, CW, CHS, or CS file. Further, AUSAs 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. AUSAs must be
mindful of security issues that may arise with respect to disclosures from confidential source
files. Prior to disclosure, AUSAs should consult with the investigative agency to evaluate any
such risks and to develop a strategy for addressing those risks or minimizing them as much as
possible, consistent with their 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, AUSAs may elect to
fulfill their disclosure obligations by choosing to make the voluminous information available to
the defense.
4. Documents or Evidence Gathered by Civil Attorneys and/or Regulatory Agencies in
Parallel Civil Investigations: If an AUSA 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
7

 prosecution team but is conducting an administrative investigation or proceeding involving the
same subject matter as a criminal investigation, AUSAs may 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
Civil Department or USAO attorneys are participating, the civil case files should also be
reviewed.8
5. Substantive Case-Related Communications: “Substantive” case-related
communications may contain discoverable information. Those communications, including any
communications with an AUSA 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) between
AUSAs and agents, (2) between AUSAs 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. All such
communications should be reviewed for privilege as well as to determine if they contain
substantive discovery material.
AUSAs 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 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: As early in an
investigation as possible, AUSAs should have candid conversations with the 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
or utilizing the law enforcement as an affiant. The following procedures for obtaining and
disclosing impeachment about law enforcement witnesses relies heavily on USAM § 9-5.100.
8

Note that where a qui tam case is still under seal, any materials that indicate the existence of a
qui tam cannot be released to defense counsel until the civil attorneys obtain a court order partially
unsealing the case for that purpose. The parties receiving unsealed materials should be cautioned not to
disclose the existence of the qui tam beyond the scope of the unsealing order.

8

 Obligation to Disclose Potential Impeachment Information. Under current Department
policy, it is expected that an AUSA generally will be able to obtain all potential
impeachment information directly from potential agency witnesses and/or affiants.
Toward that end, AUSAs should ask any potential law enforcement witness or affiant
whether he or she has any impeachment information that should be disclosed. Although
the USAM instructs that it is the agent’s responsibility to voluntarily advise the AUSA of
any potential impeachment information, AUSAs should address the matter early and prior
to the agent providing a sworn statement or testimony in any criminal investigation or
case. Thus, AUSAs should ask agent(s) the following questions at the earliest possible
stage:
1)

Have the agent’s past or present employers made any findings of misconduct or
lack of candor arising from complaints or disciplinary proceedings?

2)

Is the agent aware of any pending complaints or disciplinary proceedings
concerning the agent’s performance of official duties?

3)

Has the agent been the subject of any allegations or findings of untruthfulness,
bias, or lack of candor, whether by a court, prosecutor or other public official?

4)

Has the agent been convicted of any crime?

5)

Are there any criminal charges pending against the agent?

A positive response to any of the above questions should trigger a consultation between
the AUSA and his or her unit supervisor and/or the Brady/Giglio officer. USAM § 9-5.100 sets
out the Department’s Giglio Policy and is set forth below, modified to fit the structure of the
USAO:
Agency Officials. Each of the investigative agencies has designated an appropriate
official to serve as the point of contact concerning Department of Justice employees'
potential impeachment information ("the Agency Official").
Requesting Official. The USAO’s Brady/Giglio Officer is the Requesting Official for the
Northern District of Ohio.
Request to Agency Officials. When an AUSA determines that it is necessary to request
potential impeachment information from an Agency Official relating to an agency
employee identified as a potential witness or affiant ("the employee") in a specific
criminal case or investigation, the AUSA should notify the Brady/Giglio Officer. Upon
receiving such notification, the Brady/Giglio Officer may request potential impeachment
information relating to the employee from the employing Agency Official and the
designated Agency Official in the Department of Justice Office of the Inspector General
(OIG) and the Department of Justice Office of Professional Responsibility (DOJ-OPR).
9

 Agency Review and Disclosure. Upon receiving the request described above, the
Agency Official from the employing agency, the OIG and DOJ-OPR shall each conduct a
review, in accordance with its respective agency plan, for potential impeachment
information regarding the identified employee. The employing Agency Official, the OIG
and DOJ-OPR shall advise the Brady/Giglio Officer of (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.
Treatment of Allegations Which Are Unsubstantiated, Not Credible, or Have
Resulted in Exoneration. 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 USAO under the following circumstances: (a) when the Requesting
Official advises the Agency Official that it is required by a Court decision; (b) when:
(I) the allegation was made by a federal prosecutor, magistrate judge, or judge; or (ii) the
allegation received publicity; (c) when the Requesting Official and the Agency Official
agree that such disclosure 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 USAO, to
the extent determined, whether any aforementioned allegation is unsubstantiated, not
credible, or resulted in the employee's exoneration.
Obligation of Civil and Criminal AUSAs. AUSAs, whether civil or criminal, who
become aware of impeaching information about any law enforcement witness or potential
law enforcement witness must notify the USAO’s Brady/Giglio Officer.
8. Potential Giglio Information Relating to Non-Law Enforcement Witnesses and
Fed.R.Evid. 608 Declarants: All potential Giglio information known by or in the possession of
the prosecution team relating to non-law enforcement witnesses should be reviewed. That
information includes but is not limited to:
•

•
•
•

Bias. A witness can be impeached with evidence (including extrinsic evidence)
that he or she has a bias against the defendant or in favor of the government. See
generally, United States v. Abel, 469 U.S. 45 (1984).
Prior inconsistent statements (possibly including inconsistent attorney proffers,
See United States v. Triumph Capital Group, 544 F.3d 149 (2d Cir. 2008)).
Statements or reports reflecting witness statement variations.
Benefits provided to witnesses including:
- Proffer letters
- Benefits to relatives, friends or business partners of the witness
10

 -

•

•
•
•
•
•

C
C

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:
- Relationship with prosecutor or agent
- Favorable treatment of the witness’s relative or friend with criminal exposure
- Financial relationship with another witness or victim
- Animosity toward defendant
- Animosity toward a group of which the defendant is a member or with which
the defendant is affiliated
- Relationship with victim
- Known but uncharged criminal conduct (that may provide an incentive to curry
favor with a prosecutor)
Prior acts and specific instances of misconduct involving dishonesty 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
Contradiction. A witness can be impeached with evidence of facts that contradict
the witness’s testimony.
Untruthful character. A witness can be impeached by the testimony of a second
witness that he or she has a reputation in the community for being untruthful.
Similarly, a witness can be impeached by the testimony of a second witness that, in
the opinion of the second witness, based on the second witness’s dealings with and
observations of the witness, the witness is generally untruthful. See generally,
Fed. R. Evid. 608(a).
Incapacity
Double dealing by witness

11

 9. Information Obtained in Witness Interviews:9 Generally speaking, witness interviews
should be memorialized by the agent.10 Agents and AUSAs’ notes and any original recordings
should be preserved, and AUSAs 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 a
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. If exigent
circumstances make it impossible to secure the presence of an agent during an interview, AUSAs
should try to have another office employee present. Interview memoranda of witnesses expected
to testify, and of individuals who provided relevant information but are not expected to testify,
should be reviewed.
It is the presumption that AUSAs will produce relevant investigative reports
memorializing interviews of testifying witnesses in discovery. These reports include, as an
example, FBI 302s and DEA 6s. An AUSA who intends not to produce an investigative report
memorializing the interview of a testifying witness should seek approval from his or her Unit
Chief.
a. Witness Statement Variations: 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. AUSAs should instruct their case agents accordingly, particularly because AUSAs
may not be present during most witness interviews.
b. Trial Preparation Meetings with Witnesses: Sessions involving the preparation of
witnesses for upcoming testimony generally need not be memorialized. However, AUSAs should
be particularly attuned to new or inconsistent information disclosed by the witness during a
pre-testimony witness preparation session. New information that is exculpatory or that
constitutes impeachment information should be 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,
AUSAs should consider whether memorialization and disclosure is necessary consistent with the
provisions of subparagraph (a) above.
c. Agent Notes: Agents’ notes should be reviewed if there is a reason to believe that the
9

Reports of interviews conducted in preparation for a witness’ upcoming testimony are
discussed separately below.
10

In those instances in which an interview was audio or video recorded, further memorialization
generally will not be necessary.

12

 notes are materially different from the memorandum, if a written memorandum was not
prepared (excluding preparation for upcoming testimony as described above), or if the witness
disputes the agent’s account of the interview. AUSAs 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. In the Sixth Circuit, AUSAs must turn over the
agent’s notes of an interview of the defendant(s) as well as the memorandum created from the
interview. Failure to turn over the memorandum and the agent’s notes of an interview of a
defendant can be a violation of Rule 16 (a)(1)(B)(ii). See, e.g.. United States v. Clark, 385 F.3d
609, 619-20 (6th Cir. 2004) and United States v. Vallee, 380 F.Supp.2d 11, 12-14 (D. Mass.
2005). However, AUSAs are not required to turn over agents’ notes of interviews of cooperating
co-defendants who may testify for the government at trial.
Step 2: Conducting the Review
Having gathered the information described above, AUSAs should arrange for the
material to be reviewed to identify discoverable information. It would be preferable if AUSAs
could review all of the information themselves in every case, but such review is not always
feasible or necessary. The AUSA is ultimately responsible for compliance with discovery
obligations. Accordingly, the AUSA should develop a process for review of pertinent
information so that discoverable information is identified. Because the responsibility for
compliance with discovery obligations rests with the AUSA, the AUSA’s decision about how to
conduct this review is controlling. This process may involve agents, paralegals, agency counsel,
and/or computerized searches. Although AUSAs may delegate the responsibility for conducting
the review and set forth criteria for identifying potentially discoverable information, AUSAs
should not delegate the disclosure determination itself. AUSAs should ask every member of the
prosecution team to search his or her agency’s records for the types of information summarized
above for every witness who is expected to testify.
In cases involving voluminous evidence obtained from third parties, AUSAs should
seriously consider providing defense access to the voluminous documents (even if they are not all
discoverable) to avoid the possibility that a well-intentioned review process nonetheless fails to
identify material discoverable evidence.
AUSAs should keep a record of all data that has been reviewed for Brady and Giglio
compliance. In complex cases, in cases where substantial time elapses between indictment and
trial, and in cases where AUSAs learn of new defense theories, reviews may be repeated and/or
expanded so that nothing is missed. If an AUSA inherits a case from another AUSA, he or she is
also responsible for compliance with discovery obligations.
Seeking a Court Order. With respect to potential Brady or Giglio information that is in
a gray area and no valid reason for non-disclosure exists, the AUSA should err on the side of
disclosure. Where there is potential Brady or Giglio information that is in a gray area and there is
a valid reason to consider nondisclosure (such as concerns about the security of a witness, or the
potential for public embarrassment of an uncharged party), the AUSA should consult with his or
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 her unit chief and/or the Brady/Giglio Officer as well as the investigative agency and consider
requesting that the district judge decide the issue by submitting the matter in camera. In that
situation, the AUSA should notify opposing counsel that such a procedure is being undertaken
(without disclosing the contents of the material being presented to the court) and should follow
the local rules regarding the filing of pleadings under seal. See United States v. Minsky, 963 F.2d
870, 874 (6th Cir. 1992)(“[A]n in camera review by the court was not only proper, but probably
required.”); see also United States v. Stotts, 176 F.3d 880, 887 (6th Cir. 1999).
Step 3: Making the Disclosures
A. 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. AUSAs 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, AUSAs should always consider any appropriate countervailing
concerns in the particular case, including, but not limited to:
1)
2)
3)
4)
5)
6)
7)
8)

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;
legitimate investigative agency concerns;
enhancing the likelihood of receiving reciprocal discovery by defendants to which
the government is entitled under law.

AUSAs should not describe the discovery being provided as "'open file.” Even if the
AUSA 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 misunderstandings or broader
disclosure requirements than intended or to sanction for failure to disclose otherwise nondiscoverable documents, e.g. agent notes or internal memos, that the court may deem to have been
part of the “file” but the AUSA did not.
When the disclosure obligations are not clear or when the considerations above conflict
with discovery obligations, AUSAs should consult with their unit chiefs, the Brady/ Giglio
Officer and/or PRAO and may seek a protective order from the court addressing the scope,
timing, and form of disclosures.
B. Discovery Conference. As soon as possible after an indictment is returned, AUSAs
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 should initiate an informal discovery conference with defense counsel. During this conference,
AUSAs should discuss and try to work out a reasonable discovery schedule for both the
government and the defense. The AUSA also should discuss with defense counsel the form of
discovery, identify any unusual discovery issues, and make reasonable efforts to resolve any
discovery disputes without the need for litigation. AUSAs should consider memorializing the
results of any agreements reached during this conference or, if appropriate, making them part of
the record in the case.
C. 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. See Paragraph A (above). AUSAs should be attentive to Sixth Circuit law and
district rules and practices governing disclosure obligations at various stages of litigation, such as
pre-trial hearings, guilty pleas, and sentencing.
AUSAs 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, AUSAs should consider security concerns and the other
factors set forth in subparagraph (A) above. AUSAs also should consider seeking written
assurances from the defense or court orders assuring that discovery materials will not be
disseminated or otherwise used improperly. AUSAs should disclose Fed.R.Crim.P. 16(a)(1)(E)
materials in a manner that triggers the reciprocal discovery obligations in Fed.R.Crim.P. 16(b)(l)
and should advocate vigorously for such material to be disclosed to the government.
With respect to Jencks Act disclosures governed by Title 18, United States Code, Section
3500, AUSAs should strongly consider providing such material sufficiently in advance of a
witness’s testimony to allow the defense to make appropriate use of the material ahead of time.
Where appropriate, providing Jencks Act material in advance of trial often permits the trial to
proceed in a more efficient manner. However, AUSAs must also consider any legitimate law
enforcement concerns resulting from the early disclosure of Jencks Act material.
Discovery obligations are continuing, and AUSAs should be aware of developments
occurring up to and through trial and sentencing of the case that may influence their discovery
obligations and require disclosure of information that was previously not disclosed.
D. 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, AUSAs
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 should take great care to ensure that the full scope of pertinent information is provided to the
defendant.
Step 4: Making a Record
One of the most important steps in the discovery process is keeping good records
regarding disclosures. AUSAs should make a record of any agreements reached, discovery
disputes and, most importantly, when and how information is actually disclosed or otherwise
made available.11 While discovery matters are often the subject of litigation 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.
IV. Guidance for National Security Cases
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 elements of the IC possess
discoverable material in the following kinds of criminal cases:
M

Those targeting corrupt or fraudulent practices by middle or upper officials

11

As noted above, AUSAs should also make a record of the materials they have reviewed
for Brady and Giglio material.
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 of a foreign government;
M

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

M

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

M

Other significant cases involving international suspects and targets; and

M

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 a request through NSD 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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 Conclusion
Compliance with discovery obligations is important for a number of reasons. First and
foremost, such compliance will facilitate a fair and just result in every case, which is the USAO’s
singular goal in pursuing a criminal prosecution. This guidance does not and could not answer
every discovery question because those obligations are often fact specific. However, AUSAs
have at their disposal an array of resources intended to assist them in evaluating their discovery
obligations including supervisors, the Brady/Giglio Officer, the Professional Responsibility
Advisory Office, and online resources available on the Department's intranet website. AUSAs
should also liberally consult with their supervisors and other experienced career AUSAs
throughout the USAO.

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