DISCOVERY POLICY
United States Attorney’s Office
Southern District of West Virginia
October 20, 2010

R. Booth Goodwin
United States Attorney

Larry R. Ellis
Assistant United States Attorney
Discovery Coordinator

PROTECTED INFORMATION
ATTORNEY CLIENT PRIVILEGE/WORK PRODUCT DOCTRINE
FOIA/PRIVACY ACT PROTECTED - 5 U.S.C. § 552(b)
UNITED STATES ATTORNEY’S OFFICE
SOUTHERN DISTRICT OF WEST VIRGINIA
DISCOVERY POLICY

 TABLE OF CONTENTS

Page
General Principles for Discovery and Case Management . . . . . . . . . . . . . . . . . . . . . . . .

1

I. DISCOVERY MATERIALS - WHAT IS DISCOVERABLE? . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Rule 16 Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. Materials Required by Arraignment Order and
Standard Discovery Requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
C. Exculpatory and Impeachment Material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
D. Witnesses’ Statements - Jencks Act and Rule 26.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
E. Materials NOT Subject to Disclosure Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . 8
II. GATHERING DISCOVERY MATERIALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A. Where to Look - the Prosecution Team . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
B. What to Review/Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
C. Confidential Informants/Witness Testifying Under Plea or
Immunity Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
D. Agent Awareness of Brady/Giglio and DOJ Policy . . . . . . . . . . . . . . . . . . . . . . . . . 11
E. Giglio Information About Prosecution Team Members . . . . . . . . . . . . . . . . . . . . . . . 12
F. Trial Preparation Interviews . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

i

III. PREPARING DISCOVERY MATERIALS FOR AND MAKING
THE DISCLOSURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
A. Bates Labeling/Electronic Storage of Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

 B. Grand Jury Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
C. Materials Seized by Search Warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
D. The Discovery Response . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
E. Limiting Disclosures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
F. Communication With Agent About Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
IV. TIMING - WHEN DO YOU DISCLOSE THE MATERIALS? . . . . . . . . . . . . . . . . . . . . . 17
A. Disclosing Exculpatory/Impeachment Information
Before Indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
B. General Post-Indictment Timing Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
C. Delayed Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
V. SPECIAL CONSIDERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
A. Disclosing/Storing Impeachment Information About Agents . . . . . . . . . . . . . . . . . . 19
B. Child Pornography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
C. Cases Involving a Wiretap . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
D. Death Penalty Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
E. National Security Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
F. Other General Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

ii

General Principles for Discovery
This document sets forth the Office’s policy on discovery in criminal cases. The Outline that

 follows is intended to provide a checklist and general guidance. The Office’s policy and the Outline
do not create or confer any rights, privileges, or benefits on any person. See United States v.
Caceres, 440 U.S. 741 (1979).
The discovery obligations of federal prosecutors in this District are established by the
Federal Rules of Criminal Procedure, 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 relevant case law, the
Department of Justice’s policy on the disclosure of exculpatory and impeachment information, the
Local Rules of Criminal Procedure, the Arraignment Orders entered in particular cases, and the rules
governing professional conduct. We must comply with the authorities set forth above. Thus, the first
principle in the discovery policy for this Office is “obey all rules.”1
Second, as a general matter and allowing for the exercise of prosecutorial discretion and
subject to the needs of individual cases, prosecutors in this District are encouraged to provide
discovery beyond what the rules, statutes, and case law mandate (“expansive discovery”). The
decision in any particular case on whether, how much, and when to provide materials in excess of
that which is required will rest with the lead prosecutor in a case. There may well be good reason
for withholding something that does not have to be disclosed, such as the need to protect a witness
or safeguard investigations of other people or other crimes committed by the defendant, or to
preserve a legitimate trial strategy. Keep in mind, however, that expansive discovery may facilitate
plea negotiations or otherwise expedite litigation. In the long term, moreover, expansive discovery
may foster or support our Office’s reputation for candor and fair dealing.
Finally, if you decide to adopt expansive discovery in a case, do NOT refer to the
expansive discovery practice as “open file discovery.” Our files should not ever be completely
open (to preserve attorney-client privileged information and the work product doctrine) and there
may be times when another government agency might have some material or information of which
you are not aware. The use of the term “open file” is therefore inexact and potentially misleading.
These three general principles provide the basic foundation for this Office’s discovery policy.
The Outline that follows provides further guidance. The Outline does not and could not answer
every question that may arise in a particular case. There is no substitute for being intimately familiar
with the rules, statutes, and case law. Compliance with the governing legal authorities and this
Office’s policy on discovery will help to achieve a fair and just result in every case, which is our
singular goal in pursuing a criminal prosecution.
United States Attorney

1

Cf. Dep. B. P. Fife, “Here at the Rock” speech, The Andy Griffith Show.

 I. DISCOVERY MATERIALS - WHAT IS DISCOVERABLE?

A. Rule 16 Materials
•

Defendant’s oral statements made to law enforcement in response to
interrogation by a person the defendant knew was law enforcement.
PRACTICE TIP: Ask all law enforcement officers who had any contact or
dealings with the defendant to disclose to you all statements, verbal and nonverbal, made by the defendant at any time. Ask them to plumb the depths of
their memories. Ask them again. And again. And finally, ask again.
Why? You do not want to learn about a relevant statement for the
first time on the eve of trial or during the trial itself. An agent may not realize
or understand the relevance of a seemingly off-the-cuff comment made by a
defendant until trial preparation. Where we learn of such a statement late in
the game, we run the risk of suppression of the evidence. Thus, the repeated
admonition to ask agents, again and again, for statements of the defendant.

•

Defendant’s written or recorded statements, including grand jury testimony.

•

Statements by organizational defendant.

•

Defendant’s prior record.

•

Documents and objects for use in our case-in-chief or which are material to
preparing the defense.

•

Reports of examinations and tests.

•

Expert witnesses - summary of opinion, bases and reasons, qualifications.
PRACTICE TIP: Give serious thought to what actually may be considered
“expert testimony.” Under Rule 702 of the Federal Rules of Evidence,
expert testimony includes not only anything of a scientific or technical
nature, but also anything requiring specialized knowledge. It would include,
for example, testimony by a police officer, based on his experience, about
drug prices in his beat or what drug quantities are consistent with personal
use versus distribution. Don’t make the mistake of thinking that expert
testimony is only given by Ph.Ds or only consists of testimony that includes
an opinion. Failure to follow proper discovery procedures regarding expert
testimony might result in suppression of an important part of your case.

2

 B. Materials Required by Arraignment Order and Standard Discovery Requests
1. If the defendant opts to use the standard discovery requests as set forth in the
Local Rules of Criminal Procedure (and most defendants do choose this option), then
we will have to disclose the following:
•

Rule 16 materials noted above in Section I.A.

•

Evidence favorable to defendant, including impeachment evidence.
See discussion in Section I.C.

•

Our intent to use Rule 404(b) evidence. See Practice Tip in Section
III, D. 4., on page 16 below.

•

“Mail cover” reports.

•

Notice of intent to seek judicial notice.
PRACTICE TIP: Per Fed. R. Evid. 201, the court may take judicial
notice of any fact that is “not subject to reasonable dispute in that
it is either (1) generally known within the territorial jurisdiction of
the trial court or (2) capable of accurate and ready determination by
resprt to sources whose accuracy cannot be questioned.” Typically,
we ask the court to take notice that certain locations are “within the
Southern District of West Virginia” and may also ask the court to
judicially notice that a particular substance is a “Schedule __
controlled substance” under Title 21 of the United States Code.

•

Results of intercepts of wire, oral or electronic communication
containing relevant statements by defendant, intended to be used in
our case-in-chief, or which are material to preparation of the defense.

•

Notice of our intent to use evidence pursuant to Fed. R. Crim. P.
12(b)(4)(B) -- essentially, evidence we will use in our case-in-chief,
in order to allow the defendant to file a suppression motion.

2. Also, regardless of whether the defendant opts for the standard discovery
requests, the Arraignment Order will require, within a certain number days (agreed
upon by defense and prosecution and set forth in the arraignment order) before a
hearing or trial, disclosure of a witnesses’ statements covered by the Jencks Act or
Fed. R. Crim. P. 26.2. See Section I.D for further explanation.

C. Exculpatory and Impeachment Material
3

 1. Brady and Giglio.
We have constitutional obligations, as set forth in Brady v. Maryland, 373
U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), and other case law,
to disclose exculpatory and impeachment information when such information is
material to guilt or punishment, regardless of whether a defendant makes a
request for such information. Exculpatory and impeachment information is deemed
material to a finding of guilt when there is a reasonable probability that effective use
of that information will result in an acquittal. (DOJ policy, however, demands
broader disclosure. See below.) Prosecutors must take a broad view of materiality
and err of the side of disclosure. For an extensive discussion of cases interpreting
Brady and Giglio, see USA Book, “Brady & Giglio Issues”
(http://10.173.2.12/usao/eousa/ole/usabook/bgig/bgig.pdf).
2. DOJ Policy.
The Department of Justice has adopted a policy that requires us to go beyond
even the strict requirements of Brady and Giglio and other relevant case law.
Specifically:

Se e

•

Exculpatory information - information that is inconsistent with any
element of the crime or which establishes a recognized affirmative
defense, regardless of whether the prosecutor believes the
information is admissible evidence or will make a difference between
conviction or acquittal.

•

Impeachment information - information that either casts a substantial
doubt on the accuracy of any evidence the prosecutor intends to rely
on to establish an element (including but not limited to witness
testimony) or which might have a significant bearing on the
admissibility of prosecution evidence. This is regardless of whether
the prosecutor believes the information is admissible as evidence or
will make a difference between conviction and acquittal.

•

Admissibility of the exculpatory or impeachment information - our
disclosure requirement applies even when the information subject to
disclosure is not itself admissible evidence.

•

Cumulative impact - if the cumulative impact of several pieces of
information meets the disclosure requirements, disclose all of the
information even if the pieces, considered separately, do not meet the
requirements.

Uni t e d

St a t e s

Attorney’s
4

Manual

sections

9-5.001

 (http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/5mcrm.htm).
3. Rules of Professional Conduct.
The Model Rules of Professional Conduct and the West Virginia Rules of
Professional Conduct, both of which apply to us, also impose requirements regarding
exculpatory and impeachment material. Both Rules state:
The prosecutor in a criminal case shall . . . make timely
disclosure to the defense of all evidence or information known to the
prosecutor that tends to negate the guilt of the accused or mitigates
the offense, and, in connection with sentencing, disclose to the
defense and to the tribunal all unprivileged mitigating information
known to the prosecutor, except when a prosecutor is relieved of this
responsibility by a protective order of the tribunal.
See Rule 3.8(d), Model Rules of Professional Conduct; Rule 3.8(d), West Virginia
Rules of Professional Conduct.
4. Post-conviction obligations.
The Model Rules also impose a disclosure obligation with respect to evidence
favorable to a defendant who has been convicted. Specifically:
•

a prosecutor must promptly disclose -- to an appropriate court or
authority -- new, credible and material evidence creating a reasonable
likelihood that the convicted defendant did not the commit the
offense of which he was convicted

•

if the conviction was obtained in this jurisdiction, promptly disclose
that evidence to the defendant, unless the court authorizes delay AND
undertake investigation to determine if the defendant did not commit
the offense of which he was convicted.

Also, regardless of where the defendant’s conviction was obtained, if the
defendant is in this district, and we learn of clear and convincing evidence
establishing that the defendant did not commit the offense of which he was
convicted, we must seek to remedy the conviction.

D. Witnesses’ Statements - Jencks Act and Rule 26.2
1. What is a statement?
5

 The Jencks Act (18 U.S.C. § 3500) and Fed. R. Crim. P. 26.2 require
disclosure of a witness’s statements that relate to the subject matter of the witness’s
testimony at trial or a hearing. Both the Jencks Act and Rule 26.2 define “statement”
similarly. Specifically, a statement includes:
•

a written statement that the witness makes and signs or otherwise
adopts and approves.

•

a substantially verbatim, contemporaneously recorded recital of the
witness’s oral statement that is contained in any recording or any
transcription of a recording.
PRACTICE TIP: This may include relevant portions of a report of,
or notes from, an interview of a witness, if the report or notes contain
a substantially verbatim recitation of the witness’s oral statement.
Remember, “substantially verbatim” does not mean “precisely
verbatim.” See subsection I.D.4 below regarding notes of interviews.

•

grand jury testimony.

2. What is not a statement?
Generally, an agent’s report of interview (e.g., FBI “302" or “DEA-6"), is not
considered a statement of the witness who was interviewed, unless, as noted above,
the report contains a substantially verbatim recital of the witness’s statement, or the
witness reviews and adopts the report. United States v. Roseboro, 87 F.3d 642, 64546 (4th Cir. 1996). A witness may be deemed to have adopted the report or notes that
were taken during an interview if the witness agrees with an agent’s oral recitation
of his notes or report to see if the notes or report is correct.
PRACTICE TIP: Generally, we disclose reports of interview to defense counsel, in
the exercise of an expansive discovery practice. Remember, even though a report of
interview is not generally a statement of the witness interviewed, it is a statement of
the agent who prepared the report. The report must be disclosed if that agent will be
a witness and the report relates to the subject matter of the agent’s testimony.
If you decide to disclose an agent’s report of interview that under the law is
not a witness’s statement, discuss your intention with the agent before making the
disclosure.
3. Redaction of statements.
Rule 26.2(c) provides that where a statement of a witness contains some
material that is relevant to the case, but other material that is either privileged or
6

 does not relate to the subject matter of the witness’s testimony, the government may
call upon the trial court to review in camera the statement in its entirety and excise
any privileged or unrelated portions of the statement before it is disclosed to the
defense. This implies that the government may not excise such a statement on its
own.
PRACTICE TIP: This rule is one good reason to take separate statements from a
single witness for separate investigations or cases.
4. Notes of interview (agents and prosecutors)
In the Fourth Circuit, law enforcement agents are not required to maintain
their notes after they have used them to prepare a more formal and complete
summary of the interview. United States v. Hinton, 719 F.2d 711, 722 (4th Cir.
1983). If, however, an agent’s notes contain Brady or Giglio material that is not
included in the agent’s formal summary of the interview, the notes remain relevant
and the Brady/Giglio material must be disclosed. Similarly, a prosecutor’s notes
of a witness interview (as opposed to notes containing mental impressions, personal
beliefs, trial strategy and legal conclusions) may have to be disclosed, or the relevant
information contained therein, if the notes reflect exculpatory or impeachment
information.
Also, the government may not limit its obligation to disclose exculpatory or
impeachment evidence of which it is aware either by simply declining to make a
written record of the information in the first place or by omitting the information in
a final draft of the memorandum of interview and destroying the notes that contain
that information. The substantive demands of Brady and Giglio are not thwarted by
the manner in which the government treats or packages exculpatory information.
In fact, one of the reasons for the dismissal of the charges in the case against Sen.
Stevens of Alaska was the discovery of certain exculpatory information in notes
(these were notes of the prosecuting attorneys, not the agents) that had not been
included in any more formal documents disclosed to the defense.
PRACTICE TIP: It is highly recommended that you emphasize with all members of
the prosecution team that exculpatory and impeachment information must be
disclosed, regardless of whether we make a formal record of it.
It is recommended that you explain to the agents working on the case that
they may not destroy their informal notes unless and until everything exculpatory or
impeaching in them has been fairly included in a formal memorandum of the
interview. Such a warning, regularly given, should help to dispel any notion that
the duty to disclose exculpatory or impeachment material may be controlled or
limited by the manner in which that information is recorded or treated. Moreover,
demanding that agents review their notes against their final, formal memoranda to
7

 insure that all impeaching or exculpatory information has been disclosed is perhaps
one way to forestall that task eventually falling to AUSAs.
5. Applicability of the Jencks Act and Rule 26.2.
The Jencks Act applies to trials. Rule 26.2 applies to trials and:
•
•
•
•
•
•

preliminary hearings
detention hearings
suppression hearings
sentencing hearings
hearings to consider revocation of probation or supervised release
2255 hearings

See Section IV below regarding the timing of disclosure.

E. Materials NOT Subject to Disclosure Requirements
Rule 16 generally does not authorize the discovery or inspection of reports,
memoranda, or other internal government documents made by an attorney for the
government or by an agent in connection with the investigation or prosecution of a case. See
Fed. R. Crim. P. 16(a)(2).
PRACTICE TIP: An agent’s report, however, may contain information favorable to the
defendant. It may also contain information that might be deemed a “statement” for purposes
of the Jencks Act or Rule 26.2. That is, to the extent it relates to the subject matter of the
agent’s testimony, or contains a substantially verbatim recital of another witness’s oral
statements, the relevant portions of the report may be subject to disclosure.
Again, under an expansive discovery practice, you may wish to consider disclosing
the agent’s report, regardless of whether the law and the rules would require disclosure.
Discuss this with the agent before making the disclosure.

II. GATHERING DISCOVERY MATERIALS

A. Where to Look - the Prosecution Team
We must locate and disclose all discoverable materials noted above in Section I,
8

 including information that is exculpatory and/or impeaching of a prosecution witness, that
is within the possession of the “prosecution team.” This team includes the agents and law
enforcement officers who helped to develop the case or worked with or under the
supervision of the prosecutor during the investigation. The “prosecution team,” however,
may at times include other agencies. For a more complete discussion of who might be
included in the “prosecution team” for discovery purposes, see pages 2-3 of the Deputy
Attorney General’s January 4, 2010 “Guidance For Prosecutors” memo.

B. What to Review/Request
All evidence and other potentially discoverable material gathered during the
investigation, whether in our custody or the custody or control of the other members of the
prosecution team, should be reviewed. Special care should be given to gathering
exculpatory/impeachment information and witnesses’ statements, as discussed above in
Section I. Specifically, you should review, or cause to be reviewed by someone intimately
familiar with the law and DOJ policy on the disclosure of exculpatory and impeachment
information, the following:
•

All of the agency’s investigative files.

•

All of the CI/CW/CHS/CS files, by whatever name the agency labels these.
Agencies who make use of confidential informants and cooperating
individuals have their own established procedures for retaining information
about those witnesses. The agencies may keep multiple files containing
different types of records or information. Thus, inquiries to agencies about
informants should include a review of every kind of file that might contain
information about the individual. A video explaining the FBI’s recordkeeping systems for cooperating witnesses is available on this Office’s
I n t r a n e t “ T r a i n i n g ” p a g e , w h i c h ma y b e f o u n d a t :
http://districtweb64.usa.doj.gov/district/wvs/training/default.aspx.

•

Evidence/information obtained via subpoena, search warrants, or other legal
process. With respect to electronically-stored evidence, including e-mails,
sufficient time must be allotted for a search of hard drives, disks and other
storage hardware. These searches may take a long time, so they should be
undertaken well before indictment.
Evidence/information gathered by civil or regulatory agencies in parallel
investigations.

•

•

Substantive communications/correspondence including e-mails, text
messages, and letters, between and among prosecutors, agents, witnesses,
victims, victim-witness coordinators, etc.
9

 •

Potential Giglio information about non-law enforcement witnesses (including
declarants whose hearsay statements the government might seek to introduce
at trial). Ask the case agent to run a criminal history report on all non-law
enforcement witnesses.
PRACTICE TIP: Anytime the government has reason to question a witness’s
credibility, the government has a duty to inquire. United States v. Osorio,
929 F.2d 753 (1st Cir. 1991).
Also, remember that when a declarant’s hearsay statements are
admitted into evidence, the credibility of the declarant may be attacked, and
if attacked may be supported, as if the declarant testified as a witness. Fed.
R. Evid. 806.

C. Confidential Informants/Witness Testifying Under Plea or Immunity Agreement
You should investigate a confidential informant, or a witness who has agreed to
cooperate pursuant to a plea or immunity agreement, very thoroughly. Among other things,
you should investigate and disclose any information obtained in the following areas when
you are going to have a confidential informant or cooperating witness testify at trial or a
hearing:
•

the witness’s relationship with the defendant

•

the witness’s motivation for cooperating/testifying

•

drug and alcohol problems

•

all benefits the witness is receiving, including:
i.
ii.
iii.
iv.
v.

Monetary payments--how are they calculated?
Expenses, costs and housing--is anyone paying?
Immigration status for the witness and/or family members
Arrests--intervention by law enforcement
Taxes--has the witness paid taxes on informant payments?

•

any notes, diaries, journals, e-mails, letters, or other writings by the witness

•

prison files, tape recordings of telephone calls, and e-mails, if the informant
is in custody

•

criminal history

10

 PRACTICE TIP: You should request that the law enforcement agency on
the case check not only the III database, but also the database of the states
and municipalities where the witness is known to have lived. Why? Some
states and municipalities may not have entered relevant information into
national databases. Consequently, the III database may not contain relevant
charges, including misdemeanor charges that are related to credibility, like
bad check charges, or currently pending arrest warrants.
You should also review the criminal history with the potential witness
to ensure completeness.
Also see the “The Use of a Criminal as a Witness,” by Senior United States
Circuit Judge Stephen S. Trott, for an extensive discussion of the issues
associated with using confidential informants and other cooperators
(http://10.173.2.12/usao/eousa/ole/usabook/homi/07homi.htm).

D. Agent Awareness of Brady/Giglio and DOJ Policy
It is our responsibility to ensure that the agents understand the government’s
obligations with respect to exculpatory and/or impeachment information. To aid in this
regard, you should send a Brady/Giglio material request letter (the “First Letter”), which
restates our responsibilities under Brady, Giglio, and DOJ policy, and calls for the agency
to look for and disclose to this Office anything that might be construed as exculpatory or
impeachment material.
This letter is to be sent to the agent or agents early on in the investigation -- long
before indictment. In the event the investigation is being worked by more than one agency,
one of these letters should be sent to the lead agent from each such agency.
PRACTICE TIP: The “First Letter” can be tailored to ask for items peculiar to an agency’s
filing nomenclature. The First Letter may be found in the Office’s shared directory under
office\crimform.

E. Giglio Information About Prosecution Team Members
We also have an obligation to seek out potential impeachment information about law
enforcement agents and other members of the prosecution team who are expected to testify.
To that end, we have composed a so-called “Giglio” letter (the “Second Letter”), which is
to be sent to the supervisor or other agency-designated contact of any member of the
prosecution team who may be a witness in the case. This letter differs from the “First
Letter” in that it is specifically aimed at discovering impeachment information on agents,
11

 officers, and government employees who are potential witnesses in the case. It calls for the
agency to review the individual’s personnel file.
You should send this letter to the agency as early in the case as possible. In some
instances, it may be prudent to send the letter even before indictment.
PRACTICE TIP: The Second (“Giglio”) letter may be found on the Office’s shared
directory under office\crimform. Also, see Section V.A, below, for a discussion of how to
handle, disclose to defense, and store any impeachment information about a law
enforcement witness.

F. Trial Preparation Interviews
When preparing a witness for a hearing or trial, be very aware of our continuing
obligation to disclose information that might be exculpatory or have impeachment value.
Thus, if a witness provides information that conflicts in material ways with information the
witness has previously provided, or conflicts with material information provided by other
witnesses, we should disclose that conflict to the defendant.
PRACTICE TIP: What is the standard? Measure any conflicting information provided by
a witness against the standards set forth in the DOJ Policy, United States Attorney’s Manual
section 9-5.001, discussed above in Section I.C.2.

III. PREPARING DISCOVERY MATERIALS FOR AND MAKING THE DISCLOSURE

A. Bates Labeling/Electronic Storage of Materials
1. Bates labeling.
As documents are gathered during the course of an investigation, you should
make a complete and organized record of what has been gathered by the prosecution
team. You should Bates label the documents. This process can be done very quickly
with office software. Do not Bates label original documents. Scan the originals
and Bates label the electronic version. The originals should be kept in the order and
condition in which they were obtained. (There may be times that a production or
seizure of records is too voluminous for scanning. In this instance, you should make
the documents available for review by defense counsel.)
PRACTICE TIP: It is recommended that you Bates label the documents in a way
that will allow you to determine the source of the documents. (It is also
recommended that you keep a record or log containing a description of the
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 documents, the Bates numbers, the source of the documents, and how they were
obtained). For example, in an investigation of John Doe, rather than simply Bates
labeling all documents in numerical order with no reference to the source, you may
wish to Bates label that bank’s records as DOE.Bank ABC.0001 - 1000, or in a
similar fashion. Documents obtained via search warrant might be labeled
DOE.SW.0001-1000. You might use the initials “VP” to indicate voluntary
production.
It is not necessary to include the target’s name in the label, and you may
ultimately choose to label documents in any manner that fits the needs of your
particular case. Whatever system you use, however, please ensure that you have a
record system that will allow you, as well as any person who might have to deal with
the documents at a later time (including the Office’s FOIA contact), to determine the
source of the documents and how they were obtained. It is important that we be able
to determine if records were obtained via the grand jury, in order to ensure that we
comply with the secrecy requirements of Rule 6 of the Federal Rules of Criminal
Procedure.
2. Formatting.
You may format the documents using either the .tif or the .pdf file format.
You may also choose to use OCR (optical character recognition) for the documents.
OCR will allow the documents to be searched for particular words or terms.
PRACTICE TIP: The recent trend, particularly in large, document-intensive cases,
is to provide documents with OCR. The defense will in all likelihood ask the court
for documents to be disclosed in a searchable format. Consult with a paralegal
about using either Adobe, eScan-IT, or other software to use OCR on documents.

B. Grand Jury Materials
1. Handling grand jury materials.
The Department of Justice has guidelines for obtaining and handling evidence
pursuant to grand jury subpoena. See United States Attorney’s Manual section
9-11.254; Federal Grand Jury Practice Manual, Chapter 6 (October 2008). Specific
points to remember:
•

Identify a records custodian. Typically this is the agent on the case.
This person must be familiar with and have the ability to comply with
the security requirements for storing grand jury materials.

•

Subpoena log. Maintain a log of subpoenas issued for documents and
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 other objects. The log should record the date the subpoena was
issued, the grand jury to which the documents or objects were
subpoenaed, the date they were received, and the date they were
returned to the grand jury. An example of a subpoena log may be
found here.
•

Bates label documents. See discussion of Bates labeling in Section
III.A above. Remember, do not Bates label the original documents.

•

Make a return to the grand jury of the documents returned.
PRACTICE TIP: Always “return,” that is, physically present, the
documents and objects to the grand jury in a timely fashion. (You
may substitute a description of the documents for actual presentation,
when the volume of the documents makes actual presentation
impractical.)
This is important! The use of the grand jury to obtain
documents or other objects presupposes that the records were
obtained for use by the grand jury. The return makes the grand jury
aware of the existence of the records. Also, the Right to Financial
Privacy Act mandates that records obtained from a financial
institution be returned to the grand jury. See generally 12 U.S.C. §§
3401-3422. (For a general outline of the Right to Financial Privacy
Act, see the United States Attorney’s Memorandum of September 4,
2008, which may be found here.)

2. Grand jury disclosure order.
As soon as practicable after arraignment, file a motion with the presiding
district court judge for authorization to disclose grand jury materials to the defense.
While there may be an argument that disclosure of certain categories of grand jury
material may be disclosed pursuant to the Federal Rules of Criminal Procedure
without specific authorization of the court, the common practice in this District is to
apply for permission. A motion and proposed order may be found in office\crimform.

C. Materials Seized by Search Warrant
If you have used a search warrant in the investigation, material related to the warrant,
including affidavits, orders and the warrant itself, must be disclosed so that the defense can
pursue a motion to challenge the constitutionality of the search and suppress evidence
obtained in the search. Moreover, if the affiant is to be a witness at the trial, the affidavit is
in all likelihood a Jenck’s Act statement. Before disclosing a search warrant affidavit, be
14

 sure that it is not sealed.
PRACTICE TIP: Typically, the magistrate judges in this district will automatically seal all
search warrants and related documentation upon issuance, without requiring a motion to
seal. The warrant will not be assigned a miscellaneous criminal number until the agent
makes his return. At that point, the magistrate judge will unseal all documents unless we
have filed a motion to seal.
If the affidavit has been sealed pursuant to our motion, you must apply for an order
to unseal the affidavit before disclosing it to the defense. In those instances where the
substance of the affidavit should not be made public -- as in where the affidavit may refer
to an ongoing, covert criminal investigation -- you may ask for an order allowing the limited
release of the material to defense counsel, but prohibiting defense counsel from copying the
material or making it public.

D. The Discovery Response
We should file a formal response with the court every time we disclose discovery
materials to the defense. The materials themselves are not given to the court.
1. Organizing the response.
In our formal responses, we should respond to the applicable standard
requests by identifying (including, in cases involving numerous documents, by Bates
numbers) which documents or other materials respond to which discovery requests.
An example of a response in this format is here.
PRACTICE TIP: It is recommended that you make your disclosure of documents on
a disk, containing copies of scanned documents with Bates labeling and formatted
in the .tif or .pdf file format, as discussed above. You may organize folders son the
disks to correspond with the specific discovery responses or create folders for each
categories of documents, e.g., “grand jury documents,” “grand jury testimony,”
“voluntary productions,” etc.
2. Referring to grand jury materials.
Do not specify grand jury transcripts or other grand jury materials in the
Response we file with the court, because the responses are publicly available.
PRACTICE TIP: You could refer generally to grand jury material under “Other
Materials," noting, for example, that "under separate correspondence, dated ___,
['x' number of] grand jury transcripts were produced to defense counsel."

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 3. “Hot documents.”
In a complicated, document-intensive case, you may want to list "hot
documents," that is, documents that are certain to be introduced as exhibits in the
government's case-in-chief. In addition to expediting litigation, this may help to
avoid having the court order the government to furnish a bill of particulars.
4. 404(b) evidence.
Don't forget to note our intent to use 404(b) evidence in the response. Err on
the side of providing notice.
PRACTICE TIP: You may wish to add a caveat like this:
It is the position of the United States that the evidence noted
above should not be considered as evidence of other crimes,
wrongs, acts under Fed. R. Evid. 404(b), because the
evidence "arose out of the same transaction or series of
transactions as the charged offense[s], [is] inextricably
intertwined with the evidence regarding the charged
offense[s], or . . . is necessary to complete the story of the
crime [on] trial." United States v. Towne, 870 F.2d 880. 886
(2d Cir. 1989); see also United States v. Chin, 83 F.3d 83,
87-88 (4th Cir. 1996) (holding that acts intrinsic to charged
crime do not fall under Rule 404(b)). Notice is provided
nevertheless, in the event that the foregoing evidence is
deemed to fall under Rule 404(b).
5. Keeping a record.
We should keep in our files an exact copy of everything we have disclosed
and in the form that it was disclosed.
CAUTION!
Child pornography may not be released to a defendant,
notwithstanding its relevance and the fact that it may constitute evidence.
Depictions of child pornography are contraband, and should receive special
handling. See Section V.B below relating to child pornography.

E. Limiting Disclosures
In a case where there are legitimate concerns about the safety of an informant or
witness, it may be appropriate to apply to the court for a protective order limiting distribution
and copying of material disclosed or about to be disclosed. There have been occasions when
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 a witness’s statement or grand jury testimony has been copied and distributed in a jail or to
other potential defendants. Obviously, this may jeopardize the safety of the witness. In
situations where this kind of concern is justified, courts have ordered defense counsel not
to make copies of certain discovery material and not to let that material out of their personal
custody. In these instances, the lawyers may review the material in question with their
clients, but may not provide the client with the documents or transcripts themselves. Here
is an example of a motion seeking such a protective order, and here is the order itself.

F. Communication With Agent About Discovery
While perhaps an obvious point, remember to discuss discovery with the case agent
before indictment. Issues such as protecting witnesses, turning over the agent’s report,
redacting certain items of information (such as agency file numbers and the like), and
ensuring that all potentially exculpatory or impeachment information has been brought to
the attention of the prosecutor in a case, are vitally important.
In any case with a confidential informant or cooperating witness, such as drug cases,
you must discuss with the agent the timing of any disclosure that would reveal the identity
of the confidential informant or cooperating witness, before the disclosure is made. This will
allow the agent to take steps to safeguard the witness.

IV. TIMING - WHEN DO YOU DISCLOSE THE MATERIALS?

A. Disclosing Exculpatory/Impeachment Information Before Indictment
In applying for a search warrant, we have a duty to disclose exculpatory or
impeachment information if that information would defeat a finding of probable cause. This
duty to disclose arises not from Giglio, but under Franks v. Delaware, 438 U.S. 154 (1978).
This duty to disclose impeachment information would apply to any confidential informant
on whose statements a search warrant affidavit was based. It would also apply, however, to
the affiant as well. Again, the standard for measuring whether to disclose exculpatory or
impeachment information, particularly about a law enforcement officer, is whether the
exculpatory or impeachment information would defeat probable cause.
Case law does not require that the government disclose exculpatory or impeachment
information to a grand jury. Department of Justice policy, however, mandates the
presentation of evidence that substantially negates the target’s guilt in any grand jury
proceeding. See USAM 9-11.233.
Practice Tip: If you have impeachment information against an affiant law enforcement
officer that is substantial enough to negate a finding of probable cause, you should seriously
17

 reconsider using that officer as the affiant or whether you should be applying for a search
warrant at all. Similarly, if you are aware of evidence that substantially negates a target’s
guilt, you had better be giving your case a second thought. Why should we present a case
for indictment if there is substantial evidence negating guilt?

B. General Post-Indictment Timing Requirements
Our obligations on when we have to disclose discovery materials are very important.
Obviously we must comply with the applicable law and discovery orders regarding the
timing of disclosures. In addition, being cognizant of the timing requirements should spur
us to gather the discovery materials as early as possible in the course of an investigation and
any resulting prosecution. Here are the applicable deadlines for making disclosure:
•

Rule 16 and additional materials covered by the standard discovery requests within 14 days of arraignment.

•

Witnesses’ Statements - within a certain number of days (agreed upon by
defense counsel and prosecution) before trial and any hearing covered by
Rule 26.2.

•

Exculpatory materials discovered after the initial 14 day disclosure - disclose
reasonably promptly after the material is discovered.

•

Impeachment material discovered after the initial 14 day disclosure - disclose
at a reasonable time before the trial or hearing to allow the trial or hearing to
proceed efficiently, unless other interests such as protecting the witness’s
safety or national security require later disclosure.

•

Sentencing considerations - exculpatory or impeachment information that
casts doubt on proof of a material matter relevant to sentencing, even if
unrelated to proof of guilt, must be turned over no later than the date of the
filing of the court’s initial presentence investigation report.
PRACTICE TIP: Prior to indictment, gather and prepare all of the
materials that must be disclosed within fourteen days of arraignment.

C. Delayed Disclosure
Situations may arise where delayed disclosure of discovery materials may be
justified. These situations may include instances where the integrity of an ongoing
investigation may be compromised by a disclosure, the safety of a witness may be
compromised, or national security interests may be implicated. In such situations, it may be
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 prudent to delay disclosure of material for a reasonable time. You should consult with your
supervisor if you wish to delay any disclosure of discovery materials that may otherwise be
required by law, rule, or the arraignment order.
Also, national security cases involving classified information may be subject to
special litigation under the Classified Information Procedures Act (CIPA, 18 U.S.C.
Appendix III).

V. SPECIAL CONSIDERATIONS

A. Disclosing/Storing Impeachment Information About Agents
The Department of Justice’s policy regarding the disclosure of exculpatory and
impeachment information (see United States Attorney’s Manual section 9-5.100) requires
that we designate a “Requesting Official” to serve as a point of contact concerning potential
impeachment information about an agent. The Requesting Official in this Office is our
Senior Litigation Counsel/Discovery Coordinator, AUSA Larry R. Ellis. His duties include
informing agency officials about Supreme Court and Fourth Circuit case law, district court
rulings and practice governing the definition and disclosure of impeachment information.
In addition, the Department’s policy requires the following:
1. Disclosing impeachment information about an agent.
The disclosure of impeachment information about an agent requires special
consideration. The following considerations apply to such information:
•

Prior to making any disclosure of impeachment information on an
agent, the AUSA or Requesting Official shall communicate with the
agency concerned about our intentions, and allow the agency
sufficient opportunity to express its views on whether such
information should be disclosed to the court or to defense counsel.

•

AUSAs shall preserve the security and confidentiality of potential
impeachment information about agents through proper storage and
restricted access in this Office. This means that such information
shall be maintained in a folder marked “Limited Official Use.” The
folders shall be treated with the same level of sensitivity as tax return
information, i.e., kept in a locked file cabinet.

•

When appropriate, and after consultation with the Requesting Official
and the agency concerned, AUSAs should seek ex parte, in camera

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 review and decision by the Court regarding whether potential
impeachment information must be disclosed to defense counsel.
PRACTICE TIP: In instances where we have determined that
disclosure of a particular item presents a “close call” and where
there are bona fide considerations that mitigate against disclosure,
it may be proper to submit the particular item to the court for a
ruling. While we have no recent written opinions in this District
related to this practice, recent experience suggests that the judges
may take an expansive view of the right to disclosure in these
instances. Remember, before submitting any potential information for
ex parte, in camera examination, consult with the Requesting
Official. You should also consult with your supervisor.
•

When appropriate, AUSAs should seek protective orders to limit the
use and further dissemination of potential impeachment information
by defense counsel.

•

If any impeachment information is disclosed to the Court or defense
counsel, the AUSA making the disclosure shall also provide a copy
of the material that was disclosed, along with related pleadings and
court orders, to the agency concerned. Also, the AUSA shall provide
a copy of the aforementioned documents to the Requesting Official
if any impeachment information is disclosed to defense counsel.

•

At the conclusion of the case, or upon declination of a matter,
AUSAs shall return to the agency any impeachment information
provided by an agency about any of its officers. Our file should
continue to maintain, however, all motions, responses, legal
memoranda, court orders and internal office memoranda and
correspondence in the relevant criminal case file.

2. Storage of impeachment information about an agent.
Unless impeachment information about a law enforcement agent is disclosed
to defense counsel, this Office will not retain such information in a manner that can
be accessed by the agent’s identity. Such information shall be retained in individual
case files, as discussed above in section V.A.1.
However, and as noted above in section V.A.1, if an AUSA discloses
impeachment information about an agent to defense counsel, the AUSA should
provide the Requesting Official with a copy of the information disclosed, along with
related pleadings, court orders and correspondence. The Requesting Official shall
maintain the information by the agent’s identity, in a secure file. If, in a future case,
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 an AUSA desires to use or rely on the witness or evidence to which the impeaching
information on file relates, the Requesting Official shall contact the agency
concerned to determine the status of the information and whether there is additional
information. The steps set forth in above in section V.A.1 shall again be followed
prior to disclosure to defense counsel in the new case.
Upon being notified that an agent has retired, been transferred to another
district, or been reassigned to a position that will no longer require the agent to serve
as an affiant or witness, and if there are no pending cases involving the agent, the
Requesting Official shall remove any records concerning that agent from his retained
files.

B. Child Pornography
1. Protective orders.
In child pornography cases, 18 U.S.C. § 3509(m) specifically provides that
a court cannot order the copying or reproduction of any child pornography, or
material containing child pornography, including the duplication of the hard drives
of computers and electronic storage media, so long as the government provides a
reasonable opportunity to inspect, view, and examine the material in government
offices. The statute also provides that this material is to remain in government care,
custody, and control. Thus, in cases where child pornography has been found on a
computer belonging to or otherwise used by the defendant, the government and the
defense typically agree on a protective order that will allow for the defense to have
a “mirror image” of the computer evidence. This mirror image, however, is kept in
the custody of law enforcement and can only be accessed by the defense at the
offices of law enforcement, with limited exception. Here is an example of a motion
for protective order, and here is the proposed order itself.
PRACTICE TIP: In the sample motion, the defendant was the moving party. That
is not uncommon, where the defense counsel is the Federal Public Defender or
another lawyer who has previously litigated a federal child pornography case
against this Office. If you have inexperienced, or intransigent, defense counsel in
your case, you may have to file the motion for a protective order.
2. Handling child pornography.
It is a common practice to introduce (under seal) a sample of the defendant’s
collection of child pornography at a guilty plea hearing. Indeed, at least one district
judge (Judge Copenhaver) requires this procedure. In these instances, you should
choose images that will satisfy not just the elements of the crime charged, but also
any enhancements under the U.S. Sentencing Guidelines.
21

 PRACTICE TIP: Handle child pornography with care, given that the images are
contraband. Thus, it is at least unwise, and possibly illegal, for us to keep child
pornography in our files, even though the images may be necessary for us to review
as we make charging decisions about the case, prepare for trial and negotiate. If
you need to work with copies of images, you should have copies made (this applies
to a digital or hard copy equally) in which the faces of the children and the portions
of the images that are pornographic are obliterated or pixelated so that the faces and
graphic pornography are not identifiable. The remaining images are no longer child
pornography under the statutory definitions and may be possessed in this Office.
Enough of the images should remain so as to allow us to make informed charging
decisions, prepare for trial and negotiate the case.
Nonetheless, even when the images have been changed in this manner, they
should be treated with discretion and not unnecessarily published or distributed.

C. Cases Involving a Wiretap
1. Disclosure orders.
Section 2517 of Title 18 governs the disclosure of the contents of wire, oral
or electronic communications that were intercepted pursuant to court order. You
should review this section thoroughly upon obtaining the court authorization for the
interception and before making any disclosures. Disclosure orders must be on file
prior to submitting any information obtained from the interception to a grand jury
and before indictment.
2. Sealing the recordings.
When the order authorizing the interception expires, you must make the
recordings available to the district judge who authorized the interception and then
SEAL the recordings. If you do not properly seal the recordings, they will be
suppressed. Any evidence derived from the recordings will also be suppressed.
PRACTICE TIP: If an interception is used in a search warrant affidavit, you must
refer to the information as being from a “source of information,” rather than
revealing the interception itself.
3. Using interception evidence in a hearing.
If you intend to rely on intercepted communications at a detention or
preliminary hearing, you must, at least ten (10) days before the hearing, serve the
defense with a copy of the interception application and the court’s authorization
22

 order. If you do not comply with the ten day rule, the intercepted communications
will not be received into evidence.
PRACTICE TIP: Obviously, interceptions (commonly referred to as “Title III
wiretaps”) present unique legal requirements. You should thoroughly familiarize
yourself with all of the statutory requirements set forth in 18 U.S.C. § 2510 et seq.

D. Death Penalty Cases
1. Continuance pending AG decision.
Capital cases present unique challenges. Upon indictment, it is advisable to
file a motion to continue the trial and pre-trial motions hearing, and submit a
proposed schedule, in order to allow for a period of time in which the defendant may
present to the Department of Justice his reasons and argument that the government
should not seek the death penalty and to allow sufficient time for the Attorney
General to make a final decision on whether to seek the death penalty. Here is an
example of a Motion for a Scheduling Order and a Speedy Trial Waiver.
PRACTICE TIP: The motion for a scheduling order and speedy trial waiver is
designed to avoid a situation where the government files a notice of intent to seek the
death penalty just prior to, or in the weeks leading up to, the trial. A relatively late
filing of the notice may result in the court granting the defendant’s motion to strike
the death penalty notice. Moreover, even if the court were to deny a motion to strike
the death penalty notice, in the Fourth Circuit the defendant could immediately
appeal, under the collateral order doctrine. See United States v. Ferebe , 332 F.3d
722, 726 (4th Cir. 2003).
2. Witness list.
Pursuant to 18 U.S.C. § 3432, the government must supply a witness list to
the defendant, at least three days before commencement of the trial. (Pursuant to this
statute, the defendant must also be supplied with a copy of the indictment and a list
of the veniremen three days before trial.) The list should include the names and
“place of abode” of the witnesses to be produced to “prove the indictment.” The
court may allow for an exception, if the court finds by a preponderance of the
evidence that furnishing the list may jeopardize the life or safety of any person.
3. Mental health issues for penalty phase.
Pursuant to Fed. R. Crim. P. 12.2(c)(2), the results and reports of any
examination of the defendant by an expert retained by the government, regarding a
mental condition affecting punishment, are to be sealed and not disclosed to
23

 attorneys for the government or the defendant unless and until the defendant is found
guilty of a capital offense. It is common, however, for the court to issue an order that
establishes a protocol for conducting examinations. Here is an example of a motion
and a memorandum of law, asking the court to consider mental health issues for the
penalty phase in a capital case. Here is an example of a protocol entered by the court
in a capital case. The protocol establishes a "firewall" team of government attorneys
to deal with mental health issues for the penalty phase. The use of the firewall team
should avoid any exposure to evidence that might result in a Kastigar hearing.
E. Cases Involving Classified Information.
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
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;
24

 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 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.
Please direct any questions to Andrew Goldsmith, National Criminal Discovery Coordinator.
F. Other General Considerations
1. Records of regularly conducted activity.
Notice of our intent to introduce records of regularly conducted activity
pursuant to Fed. R. Evid. 902(11) (for domestic records) or 18 U.S.C. § 3505 (for
foreign records). This may be accomplished as part of a formal discovery response.

2. Prior convictions older than ten years.
Notice of intent to introduce evidence of a prior conviction to impeach a
witness, and that more than ten years has passed since the date of the conviction or
the release of the witness from confinement (whichever is later), pursuant to Fed. R.
Evid. 609(b).

3. Co-defendant statements and Bruton.
If you intend to introduce at trial statements by a defendant that have been
redacted to eliminate references to co-defendants, pursuant to Bruton v. United
States, 391 U.S. 123 (1968), submit the statements, with the proposed redactions
highlighted, to the defense and the court, well before the pre-trial motions hearing.
This will put the defense on notice of our intent, avoid surprise, and provide the court
sufficient time to rule on any defense objections.

25

 PRACTICE TIP: Bruton protects the right to confrontation under the Sixth
Amendment. It does not apply to statements made by a co-conspirator that were
made in furtherance of the conspiracy, or to non-testimonial statements.
4. Notice of alibi.
A request for notice of alibi pursuant to Fed. R. Crim. P. 12.1. Our request
will require the defendant to provide certain information, which will trigger our
obligation to respond with the names, addresses, and telephone numbers of witnesses
who will testify that the defendant was at the scene of the crime and also the names
of rebuttal witnesses to the defendant’s alibi defense. A sample request for notice
of alibi may be found here.
PRACTICE TIP: Requesting notice of alibi is highly recommended in any case
where a defendant might claim that he was not present when the crime occurred. Be
aware that after a defendant files a notice of alibi, the government will have to
respond in ten days with the names of witnesses and other information listed in Fed.
R. Crim. P. 12.1(b)(1). You may want to file your request for notice of alibi closer
to trial, because of the timing and disclosure requirements, in order to protect the
safety of your witnesses.
5. Insanity and mental health.
Notice from the defendant of intent to assert an insanity defense, or intent to
introduce expert evidence relating to mental disease, defect or other condition,
pursuant to Fed. R. Crim. P. 12.2. The notice should be given by the time set for
filing pre-trial motions, or a later time set by the court.
6. Public authority defense.
If a defendant intends to rely on the defense of actual or believed exercise of
public authority on behalf of a law enforcement or intelligence agency, the defendant
must provide timely notice pursuant to Fed. R. Crim. P. 12.3. The notice must be
filed under seal if an intelligence agency is the purported source of public authority.
7. Organizations as victims.
If an organization is the victim of a charged federal crime, the government
must file a statement identifying the victim-organization. If the victim-organization
is a corporation, the statement must identify any parent corporation and any publicly
held corporation that owns 10% or more of the victim-corporation’s stock, or state
that there is no such corporation. See Fed. R. Crim. P. 12.4.
8. Trial subpoenas.
26

 Rule 17(c) of the Federal Rules of Criminal Procedure allows for the parties to
subpoena documents or objects for use at trial. The parties may apply to the court
for early production. A motion requesting and an order authorizing the use of such
a subpoena are here and here. Remember, production is to be made to the court (this
usually translates to the Clerk’s Office) prior to trial and the documents or objects
are thereafter made available to all parties. That is, a Rule 17(c) subpoena is not a
means to get exclusive access to potential evidence. When the material subpoenaed
is disclosed, it is disclosed to all parties.
Practice Tip: Be alert to any attempt by the defense - it may be intentional or
inadvertent - to have the subpoenaed items delivered to their offices rather than the
court.

27