DISCOVERY POLICY FOR USAO, NDWV1
(Last Updated October 15, 2010)
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
BRADY AND GIGLIO MATERIALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Timing of Disclosures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
General Discovery - Local Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Exculpatory and impeachment material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Brady material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Giglio material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Roviaro and 404(b) evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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PROSECUTION TEAM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Material Which Should be Reviewed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
The Investigative Agency’s Files . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Confidential Informant (CI)/Witness (CW)/Human Source (CHS)/Source (CS) Files . . 9
Evidence and Information Gathered During the Investigation . . . . . . . . . . . . . . . . . 10
Documents or Evidence Gathered by Civil Attorneys and/or Regulatory Agency in
Parallel Civil Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Substantive case-related communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Agent Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Potential Giglio information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Witness interview notes of AUSAs and/or agents . . . . . . . . . . . . . . . . . . . . . . . . . 11
Conducting the Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Disclosure of Reports of Interview for Testifying or Non-Testifying Witnesses . . . . . . . . . . 12
Giglio Material on Law Enforcement Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
The Attorney General’s Giglio Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

1

This memorandum provides only internal Department of Justice guidance. It is not
intended to, does not, and may not be relied upon to create any substantive or procedural rights
enforceable at law by any person in any administrative, civil, or criminal matter or case. Nor are
any limitations hereby placed on the otherwise lawful mitigative prerogatives of the U.S.
Department of Justice. See, United States Attorney’s Manual (USAM) § 1-1.100; see also
United States v. Caceres, 440 U.S. 741 (1979).
1

 Defense Motions to Compel the Production of Law Enforcement Personnel Files . . . 15
Maintaining a Record of Disclosures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ADDITIONAL REFERENCE MATERIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A hyperlink to USAM 9.5.001 discovery obligations . . . . . . . . . . . . . . . . . . . . . .
DAG issued DOJ “Guidance for Prosecutors Regarding Criminal Discovery . . . . . .
Local district court rules for the NDWV specific to criminal discovery . . . . . . . . . .

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INTRODUCTION
This is a guide for AUSAs in fulfilling their discovery obligations in the NDWV. While
it does not cover every issue an AUSA will be faced with in making discovery decisions, it is
meant to provide AUSAs with a framework. Prosecutors are reminded to consult with the
designated Criminal Discovery Coordinator and other supervisors in the office, and PRAO if
necessary, when they have questions about the scope of their discovery obligations. This policy
must be reviewed and considered prior to making determinations regarding any discovery issue
examined herein.
As a minimum, the United States has constitutional and statutory mandates for discovery
obligations, which are generally set forth in the Federal Rules of Criminal Procedure, Rule 16
and Rule 26.2, 18 U.S.C. § 3500 (Jencks Act), Brady,2 Giglio,3 USAM 9-5.001, the Criminal
Resource Manual in Section 165 and the Local Rules of Criminal Procedure (“L R Cr P”) for the
United States District Courts for the Northern District of West Virginia (collectively referred to
as “discovery obligations”).
However, the Department of Justice (hereinafter “Department”) policy on the disclosure
of exculpatory and impeaching information and evidence requires broader disclosures than the
constitutional or statutory strictures of Brady or Giglio or Rules 16 and 26.2 . See USAM §95001. Providing broader discovery serves the interest of judgment, promotes the truth-seeking
mission of the Department, and oftentimes fosters a speedy resolution of a case. As a prosecutor
knows, while there are occasions when countervailing considerations mitigate against broad or
early discovery, the Department encourages AUSAs to provide discovery in excess of the normal
mandates, whenever possible. If an AUSA chooses this course, the defense should be advised

2

Brady v. Maryland, 373 U.S. 83 (1963) followed by U.S. v. Bagley, 473 U.S. 667, 682
(1985) and Kyles v. Whitley, 514 U.S. 419, 433 (1995) (prosecutors have a duty to learn of any
favorable evidence known to others acting on the Government’s behalf in this case), explain the
Government’s duty to disclose evidence favorable to an accused and material to guilt or
punishment.
3

Giglio v. United States, 405 U.S. 150 (1972).
2

 that the AUSA is electing to produce discovery beyond what is required, but is not committing
beyond that provided. However, in no disclosure should the discovery be described as “open
file.” This protects the AUSA from an accusation that a misrepresentation was made by an
inadvertent omission of a non-constitutional or statutory item.
This policy is to provide guidance, allowing the AUSAs to make considered decisions as
to whether and when to disclose. It is the intention of this policy to adopt a consistent discovery
practice for the District, regardless of division or AUSA.
BRADY AND GIGLIO MATERIALS
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court announced:
We now hold that the suppression by the prosecution of evidence
favorable to an accused...violates due process where the evidence
is material either to guilt or to punishment, irrespective of the
89good faith or bad faith of the prosecution.
Id. at 87.4
Nine years later, in Giglio v. United States, 405 U.S. 50 (1972), the Supreme Court held
that Brady material includes material that might be used to impeach key government witnesses,
stating:
When the “reliability of a given witness may well be determinative
of guilt or innocence,” nondisclosure of evidence affecting [the
witness’s] credibility falls within th[e] general rule [of Brady].
Id. at 154.5

4

In Brady, John Leo Brady was convicted by a jury of first-degree (felony) murder in
connection with a robbery/strangulation, and he was later sentenced to death. Before Brady was
sentenced, the state prosecutor failed to disclose to Brady a confession of Charles Boblit,
Brady’s co-defendant, in which Boblit admitted that it was he (Boblit) who did the actual killing,
which was Brady’s contention. (Boblit, too, was convicted of first-degree (felony) murder and
sentenced to death). Because of the state’s failure to disclose Boblit’s confession, which Brady
could have used to support his argument for a sentence of life imprisonment instead of death, the
Maryland Court of Appeals vacated Brady’s death sentence and remanded the case to the trial
court for re-sentencing, which was affirmed by the U.S. Supreme Court.
5

In the Giglio case, John Giglio was prosecuted federally for negotiating forged money
orders. Robert Taliento, a bank teller, helped Giglio commit the crime. Taliento was named as
an unindicted coconspirator and testified at trial as a government witness. Neither Giglio nor the
3

 The Supreme Court has explained that Brady material and Giglio material are not two
distinct kinds of evidence under the Constitution, but rather, Giglio material is merely one form
of Brady material.
In Brady..., the prosecutor failed to disclose exculpatory evidence.
In the present case, the prosecutor failed to disclose evidence that
the defense might have used to impeach the Government’s
witnesses by showing bias or interest. See Giglio[]. Impeachment
evidence, however, as well as exculpatory evidence, falls with the
Brady rule. Such evidence is “evidence favorable to an accused,”
so that, if disclosed and used effectively, it may make the
difference between conviction and acquittal.
United States v. Bagley, 473 U.S. 667, 676 (1985).
Still, it is often useful to keep Brady and Giglio analytically distinct. First, Brady and
Giglio are, at a more specific level, conceptually different kinds of evidence, and they are
commonly referred to separately, as different kinds of evidence: “Giglio material” being the
label for impeachment evidence, and “Brady material” being the label for every other kind of
evidence that could be helpful to the defendant’s efforts to create a reasonable doubt
(exculpatory evidence) or receive a lower sentence (mitigating circumstances). Second, the
AUSA’s duties under Giglio, at least with respect to law enforcement witnesses, which are
discussed below, are somewhat different and more complicated than his or her duties under
Brady.
In making Brady disclosures, an AUSA must provide any evidence favorable to an
accused which is material to the question of guilt or punishment. Since prior to trial, we are
unable to determine any particular defendant’s strategy, it is difficult to assess the materiality of
evidence before trial. The Department’s policy is for prosecutors to take a broad view of
materiality and err on the side of disclosure. See USAM §9.501.
It also must be remembered that materiality has nothing to do with admissibility. A
defendant is entitled to Brady evidence regardless of its possible admission at trial.
Additionally, an AUSA’s Brady obligation (and Giglio as well) is not limited to the AUSA’s
personal knowledge. Kyles v. Whitely, 514 U.S. 419 (1995). The knowledge of any member of
the prosecution team6 is imputed to the AUSA(s) handling the case. It is, therefore, the

trial AUSA knew until after the trial that a different AUSA, the one who had handled the grand
jury proceedings, had given Taliento full immunity in exchange for his testimony. The U.S.
Supreme Court decided that the government’s failure to disclose the immunity agreement
violated due process and overturned Giglio’s conviction.
6

A discussion of who consists of the prosecution team is addressed later.
4

 responsibility of the AUSA to make inquiries of the prosecution team about Brady and Giglio
issues.
As for an AUSA’s Giglio duties, we must disclose material to the defendant that includes
“evidence affecting [the] credibility” of key government witnesses. Giglio v. United States,
405 U.S. 150, 154 (1972). This duty exists with respect to key government witnesses at
suppression hearings, trials, and sentencing hearings.
As with Brady material, an AUSA is constitutionally required to disclose all Giglio
material that he/she or any member of the prosecution team is aware of. The AUSA,
consequently, “has a duty to learn of any [Giglio material] known to the others acting on the
government’s behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437
(1995).
Accordingly, the AUSA must ask the case agent if he/she or any member of the
prosecution team knows of any Giglio material on any government witness. Under Kyles, the
AUSA is required to make these inquiries.
Finally, two things should be kept in mind about potential Giglio material that comes to
the AUSA’s attention: First, the decision to disclose or not disclose impeachment evidence on a
law enforcement or civilian government witness ultimately rests with the AUSA, decisions on
law enforcement should be made only after discussing with the Giglio Contact. Second, simply
because the information is disclosed does not mean it will be admissible at trial.
An AUSA may determine that the early disclosure of Brady, Giglio (or Jencks) material
may raise issues of national security, witness safety or obstruction of justice, and wish not to
disclose same as addressed in this policy. If an AUSA makes such a determination, they must
obtain supervisory approval from the Criminal Chief, First Assistant and/or the United States
Attorney, before withholding the disclosure. If supervisory approval is given, the AUSA must
provide defendant’s counsel of the time and manner in which disclosure will be made. USAM
§9-5.100(D)(4).
Whenever it is unclear whether such evidence or information should be disclosed,
AUSAs are recommended to seek an in camera hearing and Protective Order from the Court.
1.

Timing of Disclosures
a.

General Discovery - Local Rules
i.

According to the “Standard Discovery Form” under “Forms” on
the NDWV district court web site, “Standard requested discovery
material” means discovery covered by Fed.R.Crim.P., Rule 16, as
well as any matter as to which the government will seek judicial
notice and whether any evidence was derived through wiretaps.
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 b.

ii.

Unless the parties agree otherwise or the court orders otherwise
(such as when a case is designated as a complex case), the
prosecution must provide standard requested discovery material to
defendant’s counsel within 10 days of a defense request for
discovery. [L R Cr P, Rule 16.01(d)-].

iii.

Additional standard requested discovery material must be provided
as soon as the prosecution receives it under most circumstances.
For exceptions, see L R Cr P, Rules 16.01(g) and 16.04.

iv.

If the defense requests discovery beyond “Standard requested
discovery material,” the prosecutor should first consult with a
supervisor and the Criminal Discovery Coordinator. If such
additional discovery is being declined, then the AUSA must
comply with the procedures in L R Cr P., Rule 16.02.

Exculpatory and impeachment material
i.

ii.

Brady material
(1)

Prior to indictment, “...[When a prosecutor conducting a
grand jury inquiry is personally aware of substantial
evidence that directly negates the guilt of a subject of the
investigation, the prosecutor must present or otherwise
disclose such evidence to the grand jury before seeking an
indictment against such a person.” [USAM 9-11.233].

(2)

According to the Local Rules, Brady material will be
disclosed at the same time as the Rule 16 disclosures.
Additional Brady material will be disclosed upon receipt by
the government. [L R Cr P, Rule 16.05]. However, the
USAM requires AUSAs disclose exculpatory information
“reasonably promptly after it is discovered.”

Giglio material
(1)

Such evidence will “...be made in sufficient time to permit
the defendant to make effective use of that information at
trial,” and, in any event, no later than 14 days before trial.
The USAM requires the disclosure occur “at a reasonable
time before trial.”

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 iii.

AUSAs should remember that W.Va. Rule 3.8(d) of the Rules of
Professional Conduct provide for prosecutors that they, “[M]ake
timely disclosure to the defense of all evidence or information
known to the prosecutor that tends to negate the guilt of the
accused or mitigates the offense, and, in connection with
sentencing, disclose to the defense and to the tribunal all
unprivileged mitigating information known to the prosecutor,
except when the prosecutor is relieved of this responsibility by a
protective order of the tribunal.”

c.

Roviaro and 404(b) evidence shall be disclosed no later than 14 days
before trial. [L R Cr P, Rule 16.06]

d.

Disclosure of discovery is a continuing duty up through the end of the
trial. [L R Cr P, Rule 16.11]
PROSECUTION TEAM

In order for an AUSA to satisfy their discovery obligations, they must know where to
look, who to ask and what to look at. The AUSA is obliged to seek all exculpatory,
impeachment and discovery material from the “prosecution team.”
In most cases, ‘the prosecution team’ will include the agents and law enforcement
officers within the relevant district working on the case. In multi-district investigations,
investigations that include both AUSAs 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 noncriminal 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 federal agency or district include:
1.

Whether the prosecutor and the agency conducted a joint investigation or shared
resources related to investigating the case;

2.

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;

3.

Whether the prosecutor knows of any has access to discoverable information held
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 by the agency;
4.

Whether the prosecutor has obtained other information and/or evidence from the
agency;

5.

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

6.

Whether a member of any agency has been made a Special Assistant United
States Attorney;

7.

The degree to which decisions have been made jointly regarding civil, criminal or
administrative charges; and,

8.

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.
Although the considerations set forth above generally apply in the context of national
security investigations and prosecutions, special complexities arise in that context...Prosecutors
should begin considering potential discovery obligations early in an investigation that has
national security implications and should also carefully evaluate their discovery obligations prior
to filing charges. This evaluation should consider circuit and district precedent and include
consultation with national security experts in their own offices and in the National Security

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 Division.” Before making any disclosures in a case involving national security, an AUSA must
contact the Criminal Chief.7
Material Which Should be Reviewed
“To ensure that all discovery is disclosed on a timely basis, generally all potentially
discoverable material within the custody or control of the prosecution team should be reviewed.
The review process should cover the following areas:
1.

The Investigative Agency’s Files: With respect to Department of Justice law
enforcement agencies, with limited exceptions,8 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 noninvestigative 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

7

The Department has issued guidelines through Acting Deputy Attorney General Gary G.
Grindler, dated September 29, 2010, regarding procedures regarding disclosure of Intelligence
Community or Military in Criminal Investigation, which should be reviewed in every relevant
investigation. See also, page 14 of this policy regarding this office’s policy as to disclosure in
National Security and Terrorism cases.
8

Exceptions to a prosecutor’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
file.
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 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 nondiscoverable, 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
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. 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 by Civil Attorneys and/or Regulatory 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, include emails between agent-AUSA,
agent-witnesses and agent-cooperator. As such, AUSAs should refrain from
communicating with other AUSAs, agents or witnesses through any electronic
means, including, but not limited to, email and text messages, where those
communications involve trial or investigative strategy. Any AUSA who does
communicate through these mediums should be mindful that those
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 communications may be discoverable and disclosable to the defense and the
courts. Electronic records that are case related must be printed and stored in the
AUSA file. All “sent emails” should be printed out of the “Sent Items” folder in
Outlook, to have a time and date stamp record of the email. “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.
6.

“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 contain 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).” [Criminal Resource Manual, Section 165, B.8.c.]

7.

Potential Giglio information relating to both non-law enforcement and law
enforcement witnesses.

8.

Witness interview notes of AUSAs and/or agents taken in preparation for a court
hearing.
Conducting the Review

1.

Having gathered the information described above, prosecutors must ensure that
the material is reviewed to identify discoverable information. AUSAs should
review the information themselves in every case, but in those limited
circumstances when such review is not feasible or necessary because of the
voluminous nature of the documents, the AUSA may 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, paralegal, agency counsel
and computerized searches. Although AUSAs may delegate the process and set
forth criteria for identifying potentially discoverable information, the AUSA shall
not delegate the disclosure determination itself. Remember, however, that it is
the AUSA who is personally responsible for compliance with the discovery
obligation.

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 In cases involving voluminous evidence obtained from third parties, AUSAs
should consider providing defense access to the voluminous documents to avoid
the possibility that a well-intentioned review process nonetheless fails to identify
material discoverable evidence. See Criminal Resource Manual, Section 165,
Section B.8.
Disclosure of Reports of Interview for Testifying or Non-Testifying Witnesses
An issue often facing AUSAs are issues regarding the disclosure of reports of interview
for testifying and non-testifying witnesses. Following are some general points of consideration.
However, as with most items, as the policy urges, if there is any question, always err on the side
of caution and disclose.
a.

b.

For testifying witnesses
i.

Reports of interview (ROI’s) such as FBI 302's and DEA 6's are not
considered Jencks material unless the ROI contains a verbatim statement
of the witness or the witness has adopted it. Therefore, the general policy
is that ROI’s are not required to be turned over to the defense in
discovery. United States v. Hall, 93 F.3d 126, 131 (4th Cir. 1996)

ii.

Exceptions apply where an ROI contains impeachment or exculpatory
information. In that situation, consideration may be given whether to
provide the ROI itself or instead compose a letter to the defense
containing the impeachment/exculpatory information.

iii.

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’ statements should be memorialized, even if they are within the
same interview, and should be provided to the defense as Giglio
information. See, Criminal Resource Manual, Section 165 B.8.a. When
these witnesses are interviewed for trial preparation, AUSAs should be
particularly attuned to new or inconsistent information disclosed by the
witness. If such information is exculpatory or impeachment, it should be
disclosed immediately.

iv.

An agent’s ROI is Jencks if the agent is going to testify about the subject
matter contained in the ROI. Therefore, you must disclose the ROI as the
Jencks material of the testifying agent.

For non-testifying witnesses:
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 i.

ROIs of a witness are not by case law or otherwise required to be
disclosed, unless they contain material which is exculpatory or may lead
to impeachment evidence.

ii.

While it is not required to disclose the ROI, the Department recommends
that AUSAs “may wish to consider providing” to avoid any claim of
violation of our obligation, considering any subsequent review is made in
hindsight and the prosecutors good faith prospective analysis at the time
of non-disclosure is irrelevant.
Giglio Material on Law Enforcement Witnesses
1. Generally

A law enforcement agent who is called as a witness knows (or certain should know)
whether there is anything that exists that could be used to impeach him. That simple fact taken
together with the irrebuttable presumption, established in Kyles v. Whitley, that the AUSA knows
everything that any member of the prosecution team knows (whether or not he/she has such
actual knowledge) means that the AUSA will be held legally responsible for disclosing all Giglio
material on law enforcement witnesses, even if he/she and the case agent have no idea that such
material exists. Hence, the AUSA absolutely must find out, one way or another, if there is any
Giglio material on any employee of a law enforcement agency - whether federal, state or local
who will or might be a witness at any suppression hearing, trial, or sentencing hearing. The two
forms of impeachment that will come into play most often with law enforcement witnesses are
bias and specific instances of misconduct involving dishonesty.
2. The Attorney General’s Giglio Policy
In recognition of the tension that may arise between AUSAs and agents because of
Giglio, the Attorney General issued a directive, dated December 9, 1996, entitled “Policy
Regarding the Disclosure to Prosecutors of Potential Impeachment Information Concerning Law
Enforcement Agency Witnesses (‘[AG’s] Giglio Policy’).” This policy was amended on October
19, 2006, to conform to the Department’s new policy regarding disclosure of exculpatory and
impeachment evidence. By its own terms, the AG’s Giglio Policy governs only the DOJ law
enforcement agencies (FBI, USMS, DEA, INS). But the Secretary of the Treasury has adopted
the AG’s Giglio Policy for the Treasury agencies as well. See USAM § 9-5.001.
There are three methods which an AUSA should use to learn whether there is any
potential Giglio material on a law enforcement witness.

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 First, the AUSA must initially seek Giglio material on a law enforcement witness by
asking the witness directly. Moreover, the AUSA’s obligation to ask the law enforcement
witness directly about evidence that might be used to impeach him may not be delegated to the
case agent.
Second, the AUSA should inquire of the Giglio Contact whether the office is aware of
any Giglio material on the witness.
Third, the Giglio Contact may decide to request potential impeachment information from
the investigative agency.” The AUSA initiates this procedure by requesting the Giglio Contact
to aks the law enforcement witness’ agency to look for and identify any potential Giglio material
on the witness.
Where the AUSA is concerned that there may be a potential Giglio issue, the AUSA
must contact the Giglio contact and/or Criminal Chief prior to the commencement of any
suppression hearing, trial or sentencing hearing in which a law enforcement witness (i.e. a
member of the “prosecution team”) is, or law enforcement witnesses are, expected to testify and
give him the name(s) of the law enforcement witness(es). The AUSA must make this contact
as soon as reasonably practicable.
The AUSA’s contact with the Giglio contact should occur sooner rather than later. Early
contact will allow sufficient time to search the office’s repository for any Giglio material on the
AUSA’s law enforcement witness(es). It will also allow sufficient time to request the witness’
agency to look for and produce potential Giglio material on the witness. Early contact will also
give the AUSA time to regroup and reorganize the government’s investigation or presentation of
evidence if it turns out that a law enforcement witness carries so much Giglio baggage that he
cannot be used as a witness.
Indeed, if any law enforcement employee with a Giglio issue will be or could be a
significant witness in the government’s case-in-chief, the AUSA should make contact with the
Criminal Chief as early in the investigation as possible (i.e., well before indictment). This will
help ensure that any agent who has a serious Giglio problem will not become an essential
government witness. Once it becomes apparent that an agent has a serious Giglio problem, the
AUSA should simply forbid him from, among other things, interviewing a target by himself,
being the sole witness of any other potentially significant event, being an affiant, or acting in an
undercover capacity.

15

 Throughout this process, of course, AUSAs should appreciate the fact that the
disclosure of Giglio material on a law enforcement witness may adversely affect his privacy
interests and reputation.9 As such, consideration should be given to the appropriateness of
presenting the information to the Court ex parte and requesting Protective Orders.
3. Defense Motions to Compel the Production of Law Enforcement Personnel Files
On occasion, in an effort to obtain all existing Giglio material on law enforcement
witnesses, the defendant will choose not to rely solely on the government’s good faith; he will
also try to invoke the power of the district court to force the government to turn over the
personnel files of the law enforcement witnesses. Fortunately, Circuit Courts of Appeal
(although not the Fourth), which have directly ruled on the issue, require the defendant to make
some affirmative showing that the personnel file requested may actually contain Giglio material.
“Mere speculation that a government file may contain Brady [i.e., Giglio] material is not
sufficient...A due process standard which is satisfied by mere speculation would convert Brady
into a discovery device and impose an undue burden upon the district court.” United States v.
Driscoll, 970 F.2d 1472, 1482 (6th Cir. 1992). See, also United States v. Navarro, 737 F.2d 625,
631 (7th Cir.), cert. denied 469 U.S. 1020 (1984); United States v. Pitt, 717 F.2d 1334, 1338-39
(11th Cir. 1983), cert. denied 465 U.S. 1068 (1984).
Cases Involving National Security Matters
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

9

The AG’s Giglio Policy explains that its “purpose...is to insure that prosecutors receive
sufficient information to meet their obligations under Giglio v. United States, 405 U.S. 150
(1972), while protecting the legitimate privacy issues of Government employees.”
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 important to determine whether the prosecutor, or another member of the prosecution team, has
specific reason to believe that one or more elements of the IC possess discoverable material in
the following kinds of criminal cases:
!

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

!

Those involving alleged violations of the 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.
Maintaining a Record of Disclosures
Prosecutors should make a record of when and how information is disclosed or otherwise
made available. Unless impractical, all discovery should be “bate stamped,” and copies of the
numbered discovery should be maintained for the file. Whether or not the discovery is “bate
stamped,” a record shall be maintained in the file sufficient to document exactly when and what
was provided to the defense as discovery.
ADDITIONAL REFERENCE MATERIAL
1.

A hyperlink to USAM 9.5.001 discovery obligations can be found beginning here:
http://www.justice.gov/usao/eousa/foia_reading_room/usam/

2.

In addition to the DAG’s directive, the DAG issued DOJ “Guidance for
Prosecutors Regarding Criminal Discovery,” which can be found in the Criminal
Resource Manual, Section 165, at this hyperlink:
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 http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00165.htm
3.

Local district court rules for the NDWV specific to criminal discovery can be
found beginning at this hyper link:
http://www.wvnd.uscourts.gov/

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