The discovery obligations of federal prosecutors are generally established by Federal
Rules of Criminal Procedure 16 and 26.2, 18 U.S.C. §3500 (the Jencks Act), Brady v. Maryland,
373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). In addition, the United
States Attorney’s Manual describes the Department’s policy for disclosure of exculpatory and
impeachment information. See USAM §9-5.001. In order to meet discovery obligations in a
given case, Federal prosecutors must be familiar with these authorities and with the judicial
interpretations and local rules that discuss or address the application of these authorities to
particular facts. In addition, it is important for prosecutors to consider thoroughly how to meet
their discovery obligations in each case. Toward that end, the Department has adopted the
guidance for prosecutors regarding criminal discovery set forth below. The guidance is intended
to establish a methodical approach to consideration of discovery obligations that prosecutors
should follow in every case to avoid lapses that can result in consequences adverse to the
Department’s pursuit of justice. The guidance is subject to legal precedent, court orders, and
local rules. It provides prospective guidance only and is not intended to have the force of law or
to create or confer any rights, privileges, or benefits. See United States v. Caceras, 440 U.S. 741
(1979).
The guidance was developed at my request by a working group of experienced attorneys
with expertise regarding criminal discovery issues that included attorneys from the Office of the
Deputy Attorney General, the United States Attorneys’ Offices, the Criminal Division, and the
National Security Division. The working group received comment from the Office of the
Attorney General, the Appellate Chiefs Working Group, the Professional Responsibility
Advisory Office, and the Office of Professional Responsibility. The working group produced
this consensus document intended to assist Department prosecutors to understand their
obligations and to manage the discovery process.
By following the steps described below and being familiar with laws and policies
regarding discovery obligations, prosecutors are more likely to meet all legal requirements, to
make considered decisions about disclosures in a particular case, and to achieve a just result in
every case. Prosecutors are reminded to consult with the designated criminal discovery
coordinator in their office when they have questions about the scope of their discovery
obligations. Rules of Professional Conduct in most jurisdictions also impose ethical obligations
on prosecutors regarding discovery in criminal cases. Prosecutors are also reminded to contact
the Professional Responsibility Advisory Office when they have questions about those or any
other ethical responsibilities.
Department of Justice Guidance for Prosecutors Regarding Criminal Discovery
Step 1: Gathering and Reviewing Discoverable Information1

1

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

Where to look - The Prosecution Team

Department policy states:
It is the obligation of federal prosecutors, in preparing for trial to seek all exculpatory and
impeachment information from all members of the prosecution team. Members of the
prosecution team include federal, state, and local law enforcement officers and other
government officials participating in the investigation and prosecution of the criminal
case against the defendant.
USAM §9-5.001. This search duty also extends to information prosecutors are required to
disclose under Federal Rules of Criminal Procedure 16 and 26.2 and the Jencks Act.
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 Assistant United States Attorneys and prosecutors from a
Department litigating component or other United States Attorney’s Office (USAO), and parallel
criminal and civil proceedings, this definition will necessarily be adjusted to fit the
circumstances. In addition, in complex cases that involve parallel proceedings with regulatory
agencies (SEC, FDIC, EPA, etc.) or other non-criminal investigative or intelligence agencies, the
prosecutor should consider whether the relationship with the other agency is close enough to
make it part of the prosecution team for discovery purposes.
Some factors to be considered in determining whether to review potentially discoverable
information from another federal agency include:
•
•

•
•
•
•
•

Whether the prosecutor and the agency conducted a joint investigation or shared
resources related to investigating the case;
Whether the agency played an active role in the prosecution, including conducting
arrests or searches, interviewing witnesses, developing prosecutorial strategy,
participating in targeting discussions, or otherwise acting as part of the
prosecution team;
Whether the prosecutor knows of and has access to discoverable information held
by the agency;
The degree to which information gathered by the prosecutor has been shared with
the agency;
Whether a member of an agency has been made a Special Assistant United States
Attorney;
The degree to which decisions have been made jointly regarding civil, criminal,
or administrative charges; and
The degree to which the interests of the parties in parallel proceedings diverge
such that information gathered by one party is not relevant to the other party.

Many cases arise out of investigations conducted by multi-agency task forces or
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 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. Accordingly,
the Department expects to issue additional guidance for such cases. 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 Division.

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 In tax cases, the prosecution team will include the IRS Special Agent(s) working on the case as
well as any IRS Revenue Agent participating in the criminal investigation. Trial attorneys have
a duty to learn of, and disclose, all discoverable information known to the agents and others
participating in the criminal investigation.
Trial attorneys should not assume that the civil components of the IRS and DOJ Tax are part of
the prosecution team. The fact that these entities may have contributed information to the
criminal investigation is not, by itself, dispositive of the issue. Instead, a more detailed analysis
of the factors set forth above should be made when determining the scope of the prosecution
team.
Even if a civil component of the IRS or Tax Division is not deemed to be part of the prosecution
team, the materials it provides to the criminal investigation may contain discoverable
information. In each prosecution, the trial attorney is responsible for knowing all information
within the possession of the prosecution team. Often, the prosecution team possesses more
information than that contained in the Special Agent’s Report. It is incumbent upon the trial
attorney to ask all members of the prosecution team for all information collected during the
course of the investigation. Trial attorneys should know the source of all information obtained
in the criminal investigation and ensure that a meaningful review of the material is done for all
discoverable information.
When requesting tax information from the civil components of the IRS in a criminal case, the
trial attorney should be mindful of the scope of information sought and the discovery
implications resulting therefrom. Requests for large amounts of tax information in a criminal
case should be made only with the consent of the trial attorney’s criminal supervisor or section
chief.
In more complex cases involving promotion schemes and tax shelters, there may be multiple
criminal investigations and prosecutions of targets nationwide. The trial attorney must be
cognizant of related criminal investigations and prosecutions in other judicial districts and if
necessary, be prepared to provide as part of discovery those materials generated from related
criminal investigations and prosecutions.

B.

What to Review

To ensure that all discovery is disclosed on a timely basis, generally all potentially
discoverable material within the custody or control of the prosecution team should be reviewed.2
The review process should cover the following areas:
1. The Investigative Agency’s Files: With respect to Department of Justice law

2

How to conduct the review is discussed below.
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 enforcement agencies, with limited exceptions,3 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.4 Therefore, the
prosecutor can personally review the file or documents or may choose to request production of
potentially discoverable materials from the case agents. With respect to outside agencies, the
prosecutor should request access to files and/or production of all potentially discoverable
material. The investigative agency’s entire investigative file, including documents such as FBI
Electronic Communications (ECs), inserts, emails, etc. should be reviewed for discoverable
information. If such information is contained in a document that the agency deems to be an
“internal” document such as an email, an insert, an administrative document, or an EC, it may
not be necessary to produce the internal document, but it will be necessary to produce all of the
discoverable information contained in it. Prosecutors should also discuss with the investigative
agency whether files from other investigations or non-investigative files such as confidential
source files might contain discoverable information. Those additional files or relevant portions
thereof should also be reviewed as necessary.

3

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
files.
4

Nothing in this guidance alters the Department’s Policy Regarding the Disclosure to
Prosecutors of Potential Impeachment Information Concerning Law Enforcement Agency
Witnesses contained in USAM §9-5.100.
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 In most instances, the investigative agency in a criminal tax case will be IRS-CI. However, the
prosecutor should be aware that other investigative agencies, (e.g, TIGTA, FBI, ICE, etc.) may
be involved in the criminal investigation, especially in cases involving both tax and non-tax
charges (e.g. bankruptcy fraud, wire fraud, securities fraud). If another investigative agency is
deemed to be part of the prosecution team, then all relevant agency files must be obtained and
any discoverable information contained therein must be disclosed in the course of discovery.
Relevant agency files include both investigative and non-investigative files such as confidential
source files. All of these files should be reviewed for potentially discoverable information.
IRS-CI’s investigative files typically include Memoranda of Interview; Memoranda of Contacts;
Memoranda of Activity; ICS histories; information retrieved from IRS databases (e.g.,
transcripts of taxpayer accounts, filing histories); inserts; emails; and correspondence with the
subject(s) and witnesses. Generally, the exhibits included in the Special Agent’s Report do not
constitute the entirety of IRS-CI’s investigative files. In addition, the prosecutor should know
what tax information from what IRS databases the IRS-CI agent has had access to during the
course of the criminal investigation, such as tax return information, filing histories, audit
histories, etc., as this evidence will be deemed to be in the possession of the prosecution team.
If the IRS-CI’s investigative file appears incomplete, the prosecutor should make further inquiry
of IRS-CI to ensure that all information gathered by the prosecution team has been accounted
for. Often, the type of tax case will alert the prosecutor to materials that should be present in
CI’s investigative file. For example, in return preparer cases, the prosecutor should expect to
find the following types of information within the CI investigative file:
•
•
•
•

Tax information collected for tax loss purposes;
Audit results for all clients identified as potential trial witnesses;
All tax returns prepared by the subject of the criminal investigation for clients
identified as potential trial witnesses; and
Tax returns prepared by the subject for government undercover agents.

So too, in cases involving parallel civil litigation such as a civil injunction, the prosecutor should
coordinate with the civil trial attorney to review the civil case file for any discoverable
information. The review of the case file should be done by the prosecutor so that all attorney
client and work product privileges are preserved.
If discoverable information is contained in a document that IRS-CI or other investigative agency
deems to be an “internal” document, it may not be necessary to produce the internal document
in its entirety, but it will be necessary to produce all of the discoverable information contained in
it by way of summary or redaction. Where appropriate, the prosecutor should request that the
Court conduct an in camera inspection of any returns or return information and/or seek an
order permitting the disclosure pursuant to 26 U.S.C. § 6103(h). The prosecutor should seek
supervisory assistance in complex discovery matters.

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 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 have access to the agency file for each
testifying CI, CW, CHS, or CS. Those files should be reviewed for discoverable information and
copies made of relevant portions for discovery purposes. The entire informant/source file, not
just the portion relating to the current case, including all proffer, immunity and other agreements,
validation assessments, payment information, and other potential witness impeachment
information should be included within this review.
If a prosecutor believes that the circumstances of the case warrant review of a nontestifying 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 the non-discoverable, sensitive information
found within a CI, CW, CHS, or CS file. Further, prosecutors should consider whether
discovery obligations arising from the review of CI, CW, CHS, and CS files may be fully
discharged while better protecting government or witness interest 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.
Prosecutors should be aware of the Whistleblower program operated by the IRS. All
whistleblower informants are required to complete IRS Form 211, Application For Award For
Original Information. In all tax prosecutions, the Special Agent can obtain this information
which may be deemed discoverable information. In addition to the Form 211, the prosecutor
should obtain all information related to IRS award determinations and appeals thereof.

3. Evidence and Information Gathered During the Investigation: Generally, all evidence
and information gathered during the investigation should be reviewed, including anything
obtained during searches or via subpoenas, etc. As discussed more fully below in Step 2, in
cases involving a large volume of potentially discoverable information, prosecutors may
discharge their disclosure obligations by choosing to make the voluminous information available
to the defense.

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 Evidence and information gathered during the tax investigation will vary from case to case, but
most tax prosecutions will involve voluminous discovery. As a general rule, the prosecutor is
under no duty to direct a defendant to exculpatory evidence within a large volume of disclosed
evidence. However, the prosecutor cannot, in bad faith, hide potentially exculpatory material in
a mass disclosure of evidence. The prosecutor may consider producing “hot documents,”
creating indices of disclosed evidence, and/or providing the defense access to searchable
databases in cases involving voluminous discovery.
The prosecutor should identify all members of the prosecution team and account for all reports
of investigation, MOIs, grand jury testimony, grand jury evidence, witness produced evidence,
search warrant evidence, trash picks, mail covers, undercover recordings, consensual
monitoring, jail phone calls, bank records, revenue agent reports, evidence obtained from
foreign countries, etc..
Where there is civil IRS activity regarding the target, the prosecutor should determine what tax
information has been shared with the prosecution team and what, if any, additional information
needs to be retrieved regarding the target’s tax history.
With respect to individual witnesses, the prosecutor should consider witness and confidential
source files, email and telephonic communications with the Special Agent or Revenue Agent, plea
agreements, cooperation agreements, payment information, immunity offers, etc.. If the witness
is critical to the government’s case, the prosecutor should make inquiry of the witness, either
directly or through counsel, as to whether that witness knows of, or possesses, any evidence that
may affect the witness’s credibility. The prosecutor should consider memorializing these
inquiries by letter or email correspondence.

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 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.

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 The Tax Division’s criminal case tracking system does not capture all civil matters that may
affect a criminal prosecutor’s discovery obligations. Moreover, the Special Agent’s Report may
or may not document a parallel civil proceedings. Prosecutors should ask IRS-CI to inquire
about the existence of a parallel proceeding, especially in return preparer, promoter, or tax
shelter cases.
Generally, tax information that is developed by a civil component of the IRS which has not been
previously disclosed to the prosecution team will not constitute information within the possession
of the prosecution team. Whether a prosecutor has a further duty to inquire about tax
information beyond that possessed by the prosecution team will depend on the facts and
circumstances of each case. The duty to inquire is dependent on what information is known to
the prosecution team and the likelihood that other tax information will yield discoverable
information.
As previously noted, when requesting tax information from the civil components of the IRS in a
criminal case, the trial attorney should be mindful of the scope of information sought and the
discovery implications resulting therefrom. Requests for large amounts of tax information in a
criminal case should be made only with the consent of the trial attorney’s criminal supervisor or
section chief. So too, in cases involving parallel civil litigation such as a civil injunction, the
prosecutor should coordinate with the civil trial attorney to review the civil case file for any
discoverable information. The review of the case file should be done by the prosecutor so that all
attorney client and work product privileges are preserved.
The Tax Division and Internal Revenue Service has established a Parallel Resolution Working
Group headed by the Tax Division's Special Counsel. General guidance on parallel tax
proceedings can be found at: http://taxnet/civ-crim_coordination/CivCrimCoord.aspx.

5. Substantive Case-Related Communications: “Substantive” case-related
communications may contain discoverable information. Those communications that contain
discoverable information should be maintained in the case file or otherwise preserved in a
manner that associates them with the case or investigation. “Substantive” case-related
communications are most likely to occur (1) among prosecutors and/or agents, (2) between
prosecutors and/or agents and witnesses and/or victims, and (3) between victim-witness
coordinators and witnesses and/or victims. Such communications may be memorialized in
emails, memoranda, or notes.
“Substantive” communications include factual reports about investigative activity, factual
discussions of the relative merits of evidence, factual information obtained during interviews or
interactions with witnesses/victims, and factual issues relating to credibility. Communications
involving case impressions or investigative or prosecutive strategies without more would not
ordinarily be considered discoverable, but substantive case-related communications should be
reviewed carefully to determine whether all or part of a communication (or the information
contained therein) should be disclosed.
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 Prosecutors should also remember that with few exceptions (see, e.g., Fed. R. Crim. P.
16(a)(1)(B)(ii), the format of the information does not determine whether it is discoverable. For
example, material exculpatory information that the prosecutor receives during a conversation
with an agent or a witness is no less discoverable than if that same information were contained in
an email. When the discoverable information contained in an email or other communication is
fully memorialized elsewhere, such as in a report of interview or other document(s), then the
disclosure of the report of interview or other document(s) will ordinarily satisfy the disclosure
obligations.

Because of their prevalence, email communications (i.e. any form of written electronic messaging
involving devices such as computers, telephones, and blackberries, including but not limited to
emails, text messaging, instant messages, tweets, and voice mail messages that are automatically
converted to text such as Google voice, Spinvox, etc.) present a special concern, and warrant
elaboration here. Our use of email in the conduct of our business has become routine and
widespread. We use email to communicate both within and outside of the Tax Division about a
variety of matters related to our litigation. The use of email to communicate substantive caserelated information in criminal and parallel criminal/civil proceedings may trigger our criminal
discovery obligations. Moreover, it is important to keep in mind that our emails are not private
property. They can be monitored, stored, and recovered. Emails sent to others, particularly to
multiple recipients, may be inadvertently or intentionally disseminated beyond the originator’s
intended recipients. For these reasons, Tax Division attorneys should be circumspect and
professional in what we write in email messages. Tax Division attorneys should not include in
their email communications anything that they would not want to see on the front page of the
newspaper or in court.
Use of Email for Case-Related Communication
A.

There are three general categories within which most case-related emails fall:
(1) potentially privileged communications; (2) substantive communications; and
(3) purely logistical communications. Each of these terms is defined below.

(1)

Email may be the most efficient and appropriate method for prosecutors to
communicate with one another and with other Tax Division personnel regarding
case strategy, case organization, and case-related tasks, to seek approval or legal
advice from supervisors or other designated attorneys in accordance with office
policy, to give legal advice, or to request that an agent, paralegal, auditor, or
other personnel conduct certain research, analysis, or investigative action in
anticipation of litigation. Such emails are “potentially privileged” and as such
may be protected from discovery.

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6028986.1

 (2)

An email from an agent, witness, or other person that contains “substantive”
case-related information raises more legal issues. Thus prosecutors and other
Tax Division personnel must be circumspect in the exchange of such email. Tax
Division personnel and agents should avoid using email to communicate
substantive case-related information in criminal and parallel criminal/civil cases
whenever possible. Because email communications from agents may not be as
complete as investigative reports, and may have the unintended effect of
circumventing the investigative agency’s established procedures for writing and
reviewing reports, prosecutors should advise investigative agents that, unless
circumstances dictate otherwise, substantive written communications from agents
about cases should be in the form of a formal investigative report, rather than an
email.

(3)

Email may be used to communicate purely logistical information and to send
formal investigative reports as attachments, or to communicate efficiently
regarding non-substantive issues such as scheduling meetings, interviews, and
court appearances.

(4)

Be careful not to use unprofessional language or engage in unprofessional
dialogue in emails. It is too easy to use in emails slang or other language that
may seem humorous or clever at the time, but will be deemed unprofessional and
unfortunate when seen in the public light.

B.

Definitions:

(1)

“Potentially privileged” emails include “attorney-client privileged” or “work
product” communications (a) between prosecutors on matters that require
supervisory approval or legal advice, e.g., prosecution memoranda, requests for
authorization to testify about official matters, Giglio requests, etc., and involve
case strategy discussions; (b) between prosecutors and other Tax Division
personnel on case-related matters, including but not limited to organization,
tasks that need to be accomplished, research, and analysis; (c) between
prosecutors and agency counsel on legal issues relating to criminal cases such as
Giglio and Touhy requests; and (d) from the prosecutors to an agent or Tax
Division personnel giving legal advice or requesting investigation of certain
matters in anticipation of litigation (“to-do” list). Please note: Emails from Tax
Division personnel or an agent to the prosecutor in response to “to-do” list emails
could possibly fall within the “substantive” communications that may not be
privileged. Also, privileged communications may point to Brady, Giglio, or Rule
16 information that is not in the case file or, although in the case file, is not
readily apparent.

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 (2)

“Substantive” communications include reports about investigative activity,
discussions of the relative merits of evidence, characterizations of potential
testimony, interviews of or interactions with witnesses/victims, and issues relating
to credibility. Email communications from paralegals, auditors or other Tax
Division personnel may become Jencks Act material if such communications
relate to matters on which they later become a witness, e.g., emails relating to
results of searches of electronic databases, analysis of financial records, etc.

(3)

“Purely logistical” communications include emails which contain only travel
information, or dates and times of hearings or meetings.

(4)

“Agent” includes, but is not limited to, any person conducting investigation on
the case, such as a state or federal law enforcement officer, revenue agent,
auditor, financial analyst, or civil investigator participating in parallel civil
enforcement investigations. It could also include Tax Division personnel such as
paralegals and auditors if such personnel are asked to complete tasks that are
investigative in nature such as researching electronic databases, analyzing
records, etc.

(5)

“Tax Division attorney” includes Criminal Enforcement Section prosecutors and
Tax Division civil litigators.

(6)

“Tax Division personnel” includes, but is not limited to, paralegals, auditors, legal
assistants, victim-witness staff and contractors.

C.

All “potentially privileged” and “substantive” emails must be printed and
maintained in the case file in accordance with the Federal Records Act.

D.

When substantive communications are sent via email, these guidelines should be
followed:

(1)

If email is used to communicate substantive case-related information with agents,
victim/witnesses, or anyone else, the email must be preserved.

(2)

As part of the discovery collection and review process, prosecutors should
routinely ask Tax Division personnel and agents to provide them with copies of
all emails that contain substantive case-related information. This includes, but is
not limited to, communications between agents, and between agents, prosecutors,
any Tax Division personnel, or anyone else, just as any formal reports would be
collected and reviewed.

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 (3)

While substantive emails need to be maintained and reviewed during the
discovery phase, any discoverable information may be disclosed in a redacted or
alternative form (e.g., a letter or memo) in appropriate circumstances,
particularly when agency policy or practice disfavors disclosure of emails.
Redaction may also be appropriate if an email contains a mix of substantive
communications, potentially privileged communications, and purely logistical
information.

(4)

Prosecutors and any Tax Division personnel who interact with victims and
witnesses should limit email exchanges to non-substantive matters such as the
scheduling of interviews or notification of dates and times of hearings. Similarly,
prosecutors should strongly encourage agents to limit email exchanges with
victims or witnesses to non-substantive matters. Any substantive information
received from a victim or witness should be considered potential Jencks Act
material and also maintained for Brady/Giglio review. If Tax Division personnel
other than the prosecutor receives a substantive email from a victim or witness,
that email should be forwarded to the prosecutor(s) assigned to the investigation
or case.

6. Potential Giglio Information Relating to Law Enforcement Witnesses: Prosecutors
should have candid conversations with the federal agents with whom they work regarding any
potential Giglio issues, and they should follow the procedure established in USAM §9-5.100
whenever necessary before calling the law enforcement employee as a witness. Prosecutors
should be familiar with circuit and district court precedent and local practice regarding obtaining
Giglio information from state and local law enforcement officers.

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 In December 1996, the Attorney General approved Department of Justice Policy Regarding the
Disclosure to Prosecutors of Potential Impeachment Information Concerning Law Enforcement
Agency Witnesses (“Giglio Policy”). The Department of Treasury agreed to issue the same
policy for its investigative agencies.
As a result, each Criminal Enforcement Section within the Tax Division has a designated Giglio
Officer, through whom all requests for Giglio searches related to law enforcement agents should
be directed in writing. A copy of each Giglio request and any responses should by maintained in
the Tax Division DMS case file. Giglio requests/searches should be completed for all Internal
Revenue Service witnesses, including Service Center Representatives, Special Agents, Revenue
Agents, Revenue Officers, and Summary Witnesses. Requests should be made sufficiently in
advance of trial to permit the results of any search to be disclosed, if necessary, to defense
counsel prior to trial. Care should be taken to maintain the confidentiality of any potential
Giglio information received. Finally, there are provisions for prosecutors to obtain information
“that cannot be substantiated, are not credible, or have resulted in the exoneration of an
employee” if such information reflects upon the truthfulness or bias of the employee under
certain enumerated circumstances.
Tax Division Disclosure and Giglio Protocol is available on the Tax Division website at:
http://taxnet/Criminal/Policy/Tax_DisclosureGiglioProtocol.wpd

7. Potential Giglio Information Relating to Non-Law Enforcement Witnesses and Fed.
R. Evid. 806 Declarants: All potential Giglio information known by or in the possession of the
prosecution team relating to non-law enforcement witnesses should be gathered and reviewed.
That information includes, but is not limited to:
•
•
•

Prior inconsistent statements (possibly including inconsistent attorney proffers,
see United States v. Triumph Capital Group, 544 F.3d 149 (2d Cir. 2008))
Statements or reports reflecting witness statement variations (see below)
Benefits provided to witnesses including:
- Dropped or reduced charge
- Immunity
- Expectations of downward departures or motions for reduction of sentence
- Assistance in state or local criminal proceedings
- Considerations regarding forfeiture of assets
- Stays or deportation or other immigration status considerations
- S-Visas
- Monetary benefits
- Non-prosecution agreements
- Letters to other law enforcement officials (e.g. state prosecutors, parole boards)
setting forth the extent of a witness’s assistance or making substantive
recommendations on the witness’s behalf
- Relocation assistance
- Consideration or benefits to culpable or at risk third-parties
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 •

•
•
•

Other know conditions that could affect the witness’s bias such as:
- Animosity toward defendant
- Animosity toward a group of which the defendant is a member or with which the
defendant is affiliated
- Relationship with victim
- Known but uncharged criminal conduct (that may provide an incentive to curry
favor with a prosecutor)
Prior acts under Fed. R. Evid. 608
Prior convictions under Fed. R. Evid. 609
Known substance abuse or mental health issues or other issues that could affect
the witness’s ability to perceive and recall events

In criminal tax cases, as in all cases, the prosecutor must know what information the prosecution
team possesses concerning all potential witnesses. Special attention must be given as to what, if
any, tax information has been collected concerning each witness. Where partial tax information
has been collected, such as partial audit files, the prosecutor will likely have to obtain the entire
audit file. Other tax information such as a witness’s transcript or filing history may or may not
trigger a duty for further inquiry depending on the facts and circumstances of the case.
Generally, where facts known to the prosecutor should have prompted further investigation,
Brady mandates the inquiry.
More difficult questions arise when the prosecution team does not possess tax information
related to a potential witness and demands are made by defense counsel for the information.
Here, the decision of whether or not to search the IRS’s databases for tax information must be
carefully considered. The final decision will depend on the facts and circumstances of each case.
Such factors as the witness’s role in the case and whether the witness has an impeachable past
will have a bearing on whether or not to retrieve the tax information. So too, any new
information coming to the prosecutor’s attention may require the prosecutor to revisit these
issues as trial approaches. These decisions should be made in consultation with the prosecutor’s
supervisors.
Because these decisions implicate both the witness’s privacy interests and the prosecutor’s Brady
and Giglio obligations, prosecutors are encouraged to submit any questioned evidence to a court
for in camera inspection. Any eventual disclosure must be tightly controlled. Prosecutors
should obtain protective orders from the court to prevent improper dissemination of third party
tax information. The protective order should mandate the return of all witness tax information
upon completion of the proceedings.
Additionally, certain actions by the government may constitute benefits bestowed on a witness.
These include assistance to the witness in his or her civil IRS proceedings, especially audits. Any
and all communications between IRS-CI and its civil counterpart concerning any potential
government witness must be documented and, in the appropriate case, disclosed as part of
discovery.

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 8. Information Obtained in Witness Interviews: Although not required by law, generally
speaking, witness interviews 5 should be memorialized by the agent.6 Agent and prosecutor
notes and original recordings should be preserved, and prosecutors should confirm with agents
that substantive interviews should be memorialized. When a prosecutor participates in an
interview with an investigative agent, the prosecutor and agent should discuss note-taking
responsibilities and memorialization before the interview begins (unless the prosecutor and the
agent have established an understanding through prior course dealing). Whenever possible,
prosecutors should not conduct an interview without an agent present to avoid the risk of making
themselves a witness to a statement and being disqualified from handling the case if the
statement becomes an issue. If exigent circumstances make it impossible to secure the presence
of an agent during an interview, prosecutors should try to have another office employee present.
Interview memoranda of witnesses expected to testify, and of individuals who provided relevant
information but are not expected to testify, should be reviewed.
a. Witness Statement Variations and the Duty to Disclose: Some witnesses’
statements will vary during the course of an interview or investigation. For example, they may
initially deny involvement in criminal activity, and the information they provide may broaden or
change considerably over the course of time, especially if there are a series of debriefings that
occur over several days or weeks. Material variances in a witness’s statements should be
memorialized, even if thy are within the same interview, and they should be provided to the
defense as Giglio information.
b. Trial Preparation Meetings with Witnesses: Trial preparation meetings with
witnesses generally need not be memorialized. However, prosecutors should be particularly
attuned to new or inconsistent information disclosed by the witness during a pre-trial witness
preparation session. New information that is exculpatory or impeachment information should be
disclosed consistent with the provisions of USAM §9-5.001 even if the information is first
disclosed in a witness preparation session. Similarly, if the new information represents a
variance from the witness’s prior statements, prosecutors should consider whether
memorialization and disclosure is necessary consistent with the provisions of subparagraph (a)
above.
c. Agent Notes: Agent notes should be reviewed if there is a reason to believe that the

5

“Interview” as used herein refers to a formal question and answer session with a
potential witness conducted for the purpose of obtaining information pertinent to a matter or
case. It does not include conversations with a potential witness for the purpose of scheduling or
attending to other ministerial matters. Potential witnesses may provide substantive information
outside a formal interview, however. Substantive, case-related communications are addressed
above.
6

In those instances in which an interview was audio or video recorded, further
memorialization will generally not be necessary.
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 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. Vallee, 380 F. Supp.2d 11, 12-14 (D. Mass. 2005).

Prosecutors should advise their agent to preserve any notes taken during a witness interview,
including all witness preparation sessions conducted by the prosecutor in advance of any
hearing, trial, or grand jury appearance. Depending upon the district, the notes may or may not
be required to be disclosed as Jencks Act statements. In addition, all interactions the witness has
with members of the prosecution team (e.g. agents, prosecutors, government staff) should be
memorialized. This includes telephone voice mail messages and email communications.
Substantive email correspondence should be preserved.

Step 2: Conducting the Review
Having gathered the information described above, prosecutors must ensure that the
material is reviewed to identify discoverable information. It would be preferable if prosecutors
could review the information themselves in every case, but such review is not always feasible or
necessary. The prosecutor is ultimately responsible for compliance with discovery obligations.
Accordingly, the prosecutor should develop a process for review of pertinent information to
ensure that discoverable information is identified. Because the responsibility for compliance
with discovery obligations rests with the prosecutor, the prosecutor’s decision about how to
conduct this review is controlling. This process may involve agents, paralegals, agency counsel,
and computerized searches. Although prosecutors may delegate the process and set forth criteria
for identifying potentially discoverable information, prosecutors should not delegate the
disclosure determination itself. In cases involving voluminous evidence obtained from third
parties, prosecutors should consider providing defense access to the voluminous documents to
avoid the possibility that a well-intentioned review process nonetheless fails to identify material
discoverable evidence. Such broad disclosure may not be feasible in national security cases
involving classified information.

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 Tax investigations may include nationwide promotion and tax shelter schemes whereby search
warrant evidence is obtained from numerous locations throughout the country. It may be
necessary for the trial attorney(s) to visit each IRS office where evidence is maintained to ensure
that all potentially discoverable information is available for review and/or disclosure. In large
tax cases, trial courts routinely require that an index of evidence seized from each search
warrant site be provided to defense counsel to facilitate the discovery process.
In addition, trial attorneys need to be mindful of other potentially discoverable information that
exists in related criminal investigations and prosecutions. This issue generally arises in tax
prosecutions involving clients of a promotion or tax shelter scheme where the promoter has been
investigated by a federal agency and/or prosecuted in another federal district.
Electronic evidence seized from computers, servers, etc. presents unique issues with respect to
review and discovery. As with all evidence, the trial attorney must be mindful of privilege issues
and be prepared to utilize the services of a taint team if necessary. Beyond that, the trial
attorney must be sufficiently familiar with the electronic evidence within the prosecution team’s
possession so that all potentially discoverable information is disclosed in a timely manner.

Step 3: Making the Disclosures
The Department’s disclosure obligations are generally set forth in Fed. R. Crim. P. 16
and 26.2, 18 U.S.C. §3500 (the Jencks Act), Brady, and Giglio (collectively referred to herein as
“discovery obligations”). Prosecutors must familiarize themselves with each of these provisions
and controlling case law that interprets these provisions. In addition, prosecutors should be
aware that Section 9-5.001 details the Department’s policy regarding the disclosure of
exculpatory and impeachment information and provides for broader disclosures than required by
Brady and Giglio. Prosecutors are also encouraged to provide discovery broader and more
comprehensive than the discovery obligations. If a prosecutor chooses this course, the defense
should be advised that the prosecutor is electing to produce discovery beyond what is required
under the circumstances of the case but is not committing to any discovery obligations beyond
the discovery obligations set forth above.
A. Considerations Regarding the Scope and Timing of the Disclosures: Providing broad
and early discovery often promotes the truth-seeking mission of the Department and
fosters a speedy resolution of many cases. It also provides a margin of error in case the
prosecutor’s good faith determination of the scope of appropriate discovery is in error.
Prosecutors are encouraged to provide broad and early discovery consistent with any
countervailing considerations. But when considering providing discovery sooner than
required, prosecutors should always consider any appropriate countervailing concerns in
the particular case, including, but not limited to: protecting victims and witnesses from
harassment or intimidation; protecting the integrity of ongoing investigations; protecting
the trial from efforts at obstruction; protecting national security interests; investigative
agency concerns; enhancing the likelihood of receiving reciprocal discovery by
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 defendants; any applicable legal or evidentiary privileges; and other strategic
considerations that enhance the likelihood of achieving a just result in a particular case.
In most jurisdictions, reports of interview (ROI) of testifying witnesses are not
considered Jencks material unless the report reflects the statement of the witness
substantially verbatim or the witness has adopted it. The Working Group determined that
practices differ among the USAOs and the components regarding disclosure of ROIs of
testifying witnesses. Prosecutors should be familiar with and comply with the practice of
their offices.
Prosecutors should never describe the discovery being provided as “open file.” Even if
the prosecutor intends to provide expansive discovery, it is always possible that
something will be inadvertently omitted from production and the prosecutor will then
have unintentionally misrepresented the scope of materials provided. Furthermore,
because the concept of the “file” is imprecise, such a representation exposes the
prosecutor to broader disclosure requirements than intended or to sanction for failure to
disclose documents, e.g. agent notes or internal memos, that the court may deem to have
been part of the “file.”
When the disclosure obligations are not clear or when the considerations above conflict
with the discovery obligations, prosecutors may seek a protective order from the court
addressing the scope, timing, and form of disclosures.

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 Criminal Tax prosecutors should be mindful of the disclosure limitations of tax returns and
return information set forth in 26 U.S.C. § 6103. Generally, § 6103(h)(4) sets forth the
permissible disclosures in a criminal tax case (i.e., a judicial proceeding involving tax
administration), but other provisions of § 6103 may apply, depending on the particular case.
A return or return information may be disclosed in a federal or state judicial or administrative
proceeding pertaining to tax administration if one of the following conditions is met:
•

The taxpayer is a party to the proceeding or the proceedings arose out of, or in
connection with, determining the taxpayer's civil or criminal liability, or the
collection of such civil liability. 26 U.S.C. § 6103(h)(4)(A);

•

The treatment of an item reflected on such return is directly related to the
resolution of an issue in the proceeding. 26 U.S.C. § 6103(h)(4)(B);

•

A third party return or return information directly relates to a transactional
relationship between a person who is a party to the proceeding and the taxpayer
whose return or return information is requested. Disclosure is permitted only if
the third party return or return information directly affects the resolution of an
issue in the proceeding. 26 U.S.C. § 6103(h)(4)(C); or

•

Disclosure is also permitted if required by court order pursuant to 18 U.S.C.
§3500 (Jencks Act) or Rule 16, Federal Rule of Criminal Procedure (Discovery).
The court will give due consideration to the congressional policy favoring the
confidentiality of returns and return information. 26 U.S.C. § 6103(h)(4)(D).

Further guidance on the limitations of disclosure of tax returns and return information may be
found in Chapter 15 of the Federal Grand Jury Practice Manual available on USA Book.
In tax cases involving promoters, tax shelters, return preparers, or false refund schemes,
questions may arise as to whether certain third-party tax return information is discoverable. As
noted above, these decisions should be made in consultation with the prosecutor’s supervisors.
Prosecutors are also encouraged to submit any questioned evidence to a court for in camera
inspection and/or a request for a court order authorizing disclosure, if appropriate. In order for
prosecutors to comply with § 6103 limitations, prosecutors are also encouraged to seek
protective orders restricting further dissemination of the return and return information
provided in discovery.
Because practices differ among the USAOs and Department components, Tax Division
prosecutors should consult local practice and follow the discovery protocol used in the United
States Attorneys Office in which they are practicing regarding the scope of discovery provided,
keeping in mind the Department's general policy of encouraging broad discovery. If a conflict
arises concerning local discovery practices, Tax Division trial attorneys must consult with
USAO supervisors and Tax Division supervisors.

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 B. Timing: Exculpatory information, regardless of whether the information is
memorialized, must be disclosed to the defendant reasonably promptly after discovery.
Impeachment information, which depends on the prosecutor’s decision on who is or may
be called as a government witness, will typically be disclosed at a reasonable time before
trial to allow the trial to proceed efficiently. See USAM §9-5.001. Section 9-5.001 also
notes, however, that witness security, national security , or other issues may require that
disclosures of impeachment information be made at a time and in a manner consistent
with the policy embodied in the Jencks Act. Prosecutors should be attentive to
controlling law in their circuit and district governing disclosure obligations at various
stages of litigation, such as pre-trial hearings, guilty pleas, and sentencing.
Prosecutors should consult the local discovery rules for the district in which a case has
been indicted. Many districts have broad, automatic discovery rules that require Rule 16
materials to be produced without a request by the defendant and within a specified time
frame, unless a court order has been entered delaying discovery, as is common in
complex cases. Prosecutors must comply with these local rules, applicable case law, and
any final court order regarding discovery. In the absence of guidance from such local
rules or court orders, prosecutors should consider making Rule 16 materials available as
soon as is reasonably practical but must make disclosure no later than a reasonable time
before trial. In deciding when and in what format to provide discovery, prosecutors
should always consider security concerns and the other factors set forth in subparagraph
(A) above. Prosecutors should also ensure that they disclose Fed. R. Crim. P. 16(a)(1)(E)
materials in a manner that triggers reciprocal discovery obligations in Fed. R. Crim. P.
16(b)(1).
Discovery obligations are continuing and prosecutors should always be alert to
developments occurring up to and through trial of the case that may impact their
discovery obligations and require disclosure of information that was previously not
disclosed.
Because of the document-intensive nature of most criminal tax prosecutions, Tax Division
prosecutors are encouraged to provide discovery as soon as reasonably practical, consistent with
local practice. In cases in which an IRS Revenue Agent is expected to testify as an expert witness
pursuant to Fed. R. Evid. 702, prosecutors should consider providing the notice and summary
required by Rule 16 as early in the litigation as reasonably practical.

C. Form of Disclosure: There may be instances when it is not advisable to turn over
discoverable information in its original form, such as when the disclosure would create
security concerns or when such information is contained in attorney notes, internal
agency documents, confidential source documents, Suspicious Activity Reports, etc. If
discoverable information is not provided in its original form and is instead provided in a
letter to defense counsel, including particular language, where pertinent, prosecutors
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 should take great care to ensure that the full scope of pertinent information is provided to
the defendant.
Step 4: Making a Record
One of the most important steps in the discovery process is keeping good records
regarding disclosure. Prosecutors should make a record of when and how information is
disclosed or otherwise made available. While discovery matters are often the subject of
litigation in criminal cases, keeping a record of the disclosures confines the litigation to
substantive matters and avoids time-consuming disputes about what was disclosed. These
records can also be critical when responding to petitions for post-conviction relief, which are
often filed long after the trial of the case. Keeping accurate records of evidence disclosed is no
less important than the other steps discussed above, and poor records can negate all of the work
that went into taking the first three steps.
Prosecutors are encouraged to develop an evidence log of all information collected by the
prosecution team in the course of the criminal investigation. The log should document when
evidence was received or created, whether it has been scanned into an electronic database (if
necessary), what Bates numbers are associated with the piece of evidence (if necessary), and the
date disclosed to defense counsel.
Trial attorneys are also encouraged to make a written record of all efforts to uncover evidence
from the IRS (e.g. Giglio letters, letters to collections, appeals, etc.) or other investigative
agencies through detailed letter writing. Where appropriate, prosecutors are encouraged to
make written requests to witnesses or counsel for impeachment evidence - especially for those
witnesses who are critical to the government’s case in chief.
All discovery disclosures to defense counsel (or the defendant) should be in writing and should
be sufficiently detailed to document what has been disclosed and when. The prosecutor may
elect to keep all discovery correspondence in a separate file for ease of reference at a later date.
Maintaining a current evidence log and discovery correspondence file will be useful to rebut
future allegations of prosecutorial misconduct with respect to discovery obligations.

Conclusion
Compliance with discovery obligations is important for a number of reasons. First and
foremost, however, such compliance will facilitate a fair and just result in every case, which is
the Department’s singular goal in pursuing a criminal prosecution. This guidance does not and
could not answer every discovery question because those obligations are often fact specific.
However, prosecutors have at their disposal an array of resources intended to assist them in
evaluating their discovery obligations including supervisors, discovery coordinators in each
office, the Professional Responsibility Advisory Office, and online resources available on the
Department’s intranet website, not to mention the experienced career prosecutors throughout the
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 Department. And, additional resources are being developed through efforts that will be overseen
by a full-time discovery expert who will be detailed to Washington from the field. By evaluating
discovery obligations pursuant to the methodical and thoughtful approach set forth in this
guidance and taking advantage of available resources, prosecutors are more likely to meet their
discovery obligations in every case and in so doing achieve a just and final result in every
criminal prosecution. Thank you very much for your efforts to achieve those most important
objectives.

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