Memorandum
To:

Criminal AUSAs and SAUSAs
Western District of Arkansas

From:

Christopher D. Plumlee
Assistant United States Attorney/Criminal Chief
Western District of Arkansas

Date:

August 31, 2010

Subject:

Policy for Discovery in Criminal Cases

I.

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

II.

Nature of Discovery Disclosures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

III.

A.

A Note on Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B.

A Note on Redaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

C.

Stipulated Discovery Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

D.

Access v. Copies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.

Narcotics and Violent Crime Cases . . . . . . . . . . . . . . . . . . . . . . . . . . 5

2.

Victim Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

3.

Grand Jury Transcripts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

4.

Tax Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

5.

Check-Out Copies of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

6.

Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Scope of Discovery Disclosures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A.

Reports of Interviews . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

B.

Substantive Case-Related Communications . . . . . . . . . . . . . . . . . . . . . . . . 7
1.

Use of E-mail for Case-Related Communication . . . . . . . . . . . . . . . 7
a.

Potentially Privileged Communications . . . . . . . . . . . . . . . . . 7
Office of United States Attorney
Western District of Arkansas
414 Parker Avenue
Fort Smith, AR 72901
Voice (479) 783-5125 Fax (479) 785-2442

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C.

b.

Substantive Communications . . . . . . . . . . . . . . . . . . . . . . . . . 8

c.

Purely Logistical Communications . . . . . . . . . . . . . . . . . . . . . 8

2.

Retention of E-mails . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

3.

Guidelines for Handling Substantive Communication . . . . . . . . . . . 9

Giglio Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.

Duty of Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

2.

Policy: Impeachment Materials Generally . . . . . . . . . . . . . . . . . . . . 10

3.

a.

DOJ Policy Regarding Impeachment Information . . . . . . . 10

b.

USAO NDIA Policy on Giglio Disclosures . . . . . . . . . . . . . . 11

Policy: Handling Allegations of Law Enforcement Officer
Misconduct and Negative Findings of Credibility . . . . . . . . . . . . . . 12
a.

DOJ Policy Re: Impeachment Information on Agents . . . . 12

b.

Requesting Impeachment Information from Agencies . . . . 12

c.

USAO NDIA Procedures Re: Impeachment Information
on Agents and Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

E.

Trial Preparation Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

F.

Agent Handwritten or Rough Draft Notes . . . . . . . . . . . . . . . . . . . . . . . . . . 15

IV.

Timing of Disclosures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

V.

Form of Disclosures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

VI.

Documentation of Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

VII.

Departures from the Discovery Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
A.

Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

B.

Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

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I.

Introduction

This Memorandum sets forth the policy for the Western District of Arkansas
regarding discovery in criminal cases.1 This policy shall apply in all criminal cases
arising in the Western District of Arkansas except those involving national securityrelated investigations and/or classified materials, which will be the subject of a separate
policy. This Memorandum also contains specific, case-related considerations that may
warrant a departure from the uniform discovery practices of the office and the
procedures prosecutors2 are required to follow to obtain supervisory approval to depart
from the uniform practices in an appropriate case.
PROSECUTORS SHOULD BE FAMILIAR WITH THE Guidance for
Prosecutors Regarding Criminal Discovery ISSUED BY THE DEPUTY ATTORNEY
GENERAL ON JANUARY 4, 2010. A copy of that memorandum is attached
(Attachment 1). That Guidance provides “a methodical approach to consideration of
discovery obligations that prosecutors should follow in every case” and focuses on our
obligations to ensure, in the first instance, we have all of the discovery that may need to
be disclosed to defendants. This policy focuses on what we disclose and how we
provide access to our discovery. Of course, prosecutors must also be familiar with the
circuit and district court precedent and the local rules. Where there is or develops an
inconsistency between those authorities and this policy, the former controls.
Prosecutors should also be familiar with statutory, rule-based, and case-based
discovery obligations under Rule 16, the Jencks Act, Brady v. Maryland, and Giglio v.
United States.
Finally, prosecutors should be aware that the U.S. Attorney’s Manual (USAM §95.001) “requires prosecutors to go beyond the minimum obligations required by the
Constitution and establishes broader standards for disclosure of exculpatory and
impeachment information.” In short, DOJ policy requires disclosure of “information
beyond that which is ‘material’ to guilt as articulated in Kyles v. Whitley, 514 U.S. 419

1

This memorandum provides only internal guidance for the United States Attorney’s
Office for the Western District of Arkansas. It is not intended to, does not, and may not be
relied upon to create any substantive or procedural rights enforceable at law by any person
in any administrative, civil, or criminal matter or case. Nor are any limitations hereby placed
on the otherwise lawful litigation prerogatives of the United States Department of Justice.
See United States Attorney’s Manual (USAM) § 1-1.100. See also United States v.
Caceres, 440 U.S. 741 (1979).
2

The term “prosecutor” includes Assistant United States Attorneys and Special
Assistant United States Attorneys.

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(1995),” and encourages prosecutors to “err on the side of disclosure.” The policy
requires prosecutors to produce “information,” not just “evidence,” and counsels that the
prosecutor must consider the cumulative impact of items of information.
II.

Nature of Discovery Disclosures

The Western District of Arkansas will provide prompt discovery in criminal cases
consistent with the law, security, and policy set forth below. We will also provide copies
of certain discovery to defendants in either paper or electronic form. The policy
regarding producing copies of discovery to defendants will vary, however, depending on
the nature of the case and the nature of the discovery, as set forth in more detail below.
A.

A Note on Terminology

Our discovery policy is not an “open file” discovery policy. That does not mean
the scope of our discovery disclosure is any less restrictive than before. The term “open
file” discovery can be misleading. First, we will not always disclose everything in
discovery (for example, we may not disclose a document in discovery if there is a safety
issue, as explained in more detail below). Second, we may rightfully withhold items as
allowed by Rule 16. Accordingly, we should never refer to our discovery policy as “open
file.” Rather, we will simply describe our policy as a “discovery” policy.
B.

A Note on Redaction

The need to redact discovery to protect the identity of witnesses and victims will
arise repeatedly in criminal cases. The circumstances when redaction may be
appropriate are outlined below. When discovery is redacted, it must be done in a
manner that makes it clear to the reader the discovery has been redacted. For
documents, the redaction should be made with a black marker or there must be some
written notation of a redaction whenever it is done. The best practice is to also
document that the prosecutor has alerted defense counsel that discovery has been
redacted. This should be either in the form of a letter or a note in the discovery
identifying the discovery redacted and the nature of the redaction.
C.

Pretrial Discovery Order

In most cases, there is a discovery order entered by the magistrate. A copy of a
standard Discovery Order is attached. (Attachment 2). Prosecutors should adhere to
the standard discovery order in all cases unless there is a safety or security concern or
doing so would not be in the best interest of the United States. In the event such a
concern arises, the prosecutor should notify a supervisor immediately and proceed
accordingly.

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D.

Access v. Copies

Prosecutors should, whenever possible and within the limits set forth in this
section, endeavor to provide copies of discovery to defense counsel. The extent to
which we will provide copies of discovery to counsel will depend on both the nature of
the case and the nature of the information. Prosecutors retain the discretion to request
defense counsel review the discovery file and identify information they wish copied.
1.

Narcotics, Firearm, Violent Crime, and Other Cases Endangering
Witnesses

Circulation of copies of interview reports or recordings can endanger
cooperators, informants and witnesses. Accordingly, in drug and violent crime cases,
prosecutors should not provide defendants with copies of statements by cooperators
and informants, or other documents such as plea agreements or proffer agreements,
that would reveal the fact of cooperation or assistance provided to the government,
unless it is necessary under the discretion of the prosecutor. Unless mere disclosure of
the witness’ identity would create a safety risk, the defendant should still be provided
access to the information in discovery. If the prosecutor believes it is necessary for
safety reasons to conceal identifying information about a witness, the prosecutor may
redact the discovery. Of course, the prosecutor must still comply with the case law and
the Jencks Act. Either a copy of the discovery or the information contained in the
discovery must be produced to defendant in a manner and as required by the Jencks
Act, the Pretrial Discovery Order, and the Local Rules in the event the case proceeds to
trial or the Jencks Act is otherwise implicated.
2.

Victim Cases

In some cases, victims may continue to be victimized by defendants and their
associate, or be subject to harassment or embarrassment if copies of discovery
pertaining to the victims were provided to defendants. Access to the documents should
nevertheless be provided to defense counsel in discovery, where appropriate. Personal
identification information may be redacted from discovery pertaining to victims. The
prosecutor must still comply with the case law and the Jencks Act, the Pretrial
Discovery Order, and the Local Rules.

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3.

Grand Jury Transcripts

Copies of grand jury transcripts, accompanied by a letter or memorandum
regarding further distribution, may be provided to defendants in discovery as long as it is
otherwise provided consistent with Rule 6(e) of the Federal Rules of Criminal Procedure
and subsections II(D)(1)-(3).
4.

Tax Records

Copies of tax records belonging to the defendant may be provided to the
defendant as part of the discovery consistent with other provisions of this policy. To the
extent, however, the discovery file contains tax documents pertaining to other people,
those copies may not be provided to defendants as part of our expanded discovery
without supervisory approval.
5.

Check-out Copies of Documents

In some cases where we do not provide copies of discovery to defense counsel
(such as certain witness interview reports in narcotics cases), there may be instances
where defense counsel request permission to show a copy of a particular document to
the defendant. Occasionally, defendants do not trust the defense attorney’s notes and if
the defendant can actually see the document, it helps resolve the case. In those
instances, prosecutors, at their discretion, may allow the defense attorney to obtain a
copy of the relevant document with the understanding that no actual copies be provided
to the client, rather, the attorney may only show it to his or her client. These limitations
should be memorialized in a cover letter or other document provided to the defense
attorney with the copy of the document in question.
6.

Other

Issues may arise regarding privacy, practicalities (such as volume, the nature of
the information that make copying difficult, or timing), or other factors that would make
providing copies of discovery unworkable. Our office retains the discretion to not
provide copies of expanded discovery to defendants. Moreover, the office will retain the
discretion not to provide copies of expanded discovery to defense counsel who have
demonstrated an abuse of the courtesy, or with regard to defense counsel with whom
our office is unfamiliar or has no track record. Supervisory approval is required when a
prosecutor does not wish to provide copies of expanded discovery under these
circumstances.

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III.

Scope of Discovery Disclosures
A.

Production of Reports and Recordings of Interviews

Generally, absent safety concerns, reports and recordings of interviews of
witnesses should be included in discovery, or, in accordance with the standards set
forth under the Jencks Act, or, when the statements include exculpatory information.
Early disclosure may occur at the prosecutor’s discretion.
B.

Production of Substantive Case-Related Communications

While this policy focuses primarily on communication via e-mail,3 the general
principals regarding communication of substantive case-related communications should
apply to communications in whatever form.
1.

Use of Email for Case-related Communication

There are three general categories within which most case-related e-mails fall:
(a) potentially privileged communications; (b) substantive communications; and (c)
purely logistical communications. Each of these terms is defined below.
a.

Potentially Privileged Communications

“Potentially privileged” emails include “attorney-client privileged” or “work
product” communications (1) between prosecutors on matters that require supervisory
approval or legal advice, e.g., prosecution memoranda, Touhy approval requests, Giglio
requests, etc, and involving case strategy discussions; (2) between prosecutors and
other USAO personnel4 on case-related matters, including but not limited to
organization, tasks that need to be accomplished, research, and analysis; (3) between
prosecutors and agency counsel on legal issues relating to criminal cases such as
Giglio and Touhy requests; (4) from USAO personnel and personnel at other United
States Attorneys’ Offices and the Department of Justice personnel on case-related

3

In this policy, the term “e-mail” includes any form of written electronic messaging
using devices such as computers, telephones, and blackberries, including, but not limited
to, e-mails, text messaging, instant messages, tweets, and voice mail messages that are
automatically converted to text.
4

“USAO personnel” includes, but is not limited to, paralegals, auditors, legal
assistants, victim-witness staff, LEC coordinator, student interns, and contractors in the
Western District of Arkansas.

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matters, approval, or legal advice; and (4) from the prosecutor to an agent5 or USAO
personnel giving legal advice or requesting investigation of certain matters in
anticipation of litigation (“to-do” list). These e-mails are generally not discoverable.
Please note: E-mails from USAO 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, or obviously in, the case file.
b.

Substantive Communications

“Substantive” communications include reports about investigative activity6,
discussions of the relative merits of evidence, characterizations of potential testimony,
interviews of or interactions with witnesses/victims, and issues relating to credibility.
These e-mails may be discoverable.
c.

Purely Logistical Communications

“Purely logistical” communications include e-mails that only contain travel
information or dates and times of hearings or meetings. E-mail may be used to
communicate purely logistical information, to send formal investigative reports as
attachments, or to communicate efficiently regarding non-substantive issues such as
scheduling meetings, interviews, and court appearances. These e-mails are generally
not discoverable.
2.

Retention of E-mails

All “potentially privileged” and “substantive” emails should be printed and
maintained in the case file in accordance with the Federal Records Act and and 36
CFR 1234.2. The Act requires retention of e-mails that contain substantive case-related
information, including “potentially privileged” information. These records should be
reviewed by prosecutors as potential discovery material.

5

“Agent” includes, but is not limited to, any person conducting investigation on the
case such as local, state, and federal law enforcement officers, revenue agents, auditors,
financial analysts, and civil investigators participating in affirmative civil enforcement
investigations. It could also include USAO 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.
6

E-mail communications from paralegals, auditors, student interns, or other USAO
personnel may become Jencks Act material if such communications relate to matters on
which they later become a witness, e.g., e-mails relating to results of searches of electronic
databases, analysis of financial records, etc.

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3.

Guidelines for Handling Substantive Communications

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

If e-mail is used to communicate substantive case-related
information with agents, victims, witnesses, or anyone else,
the e-mail must be printed and maintained in the case file.

b.

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

c.

While substantive e-mails 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 e-mails. Redaction may also be appropriate if
an e-mail contains a mix of substantive, potentially privileged
and purely logistical communications.

d.

Prosecutors and any USAO personnel who interact with
victims and witnesses should limit e-mail exchanges to
nonsubstantive matters such as the scheduling of interviews
or notification of dates and times of hearings. Similarly,
prosecutors should strongly encourage agents to limit e-mail
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 be maintained for Brady/Giglio review. If
USAO personnel other than the prosecutor receives a
substantive e-mail from a victim or witness, such e-mail
should be forwarded to the prosecutor(s) assigned to the
investigation or case.

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C.

Giglio Information
1.

Duty of Disclosure

Arkansas prosecutors bear specific responsibilities under the Arkansas Rules of
Professional Responsibility, that the district’s Court Rules make applicable to all
attorneys practicing in federal court in the Western District of Arkansas. See Local
Rules: Model Federal Rules of Disciplinary Enforcement. Prosecutors have certain
“special responsibilities,” including the duty to
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 the prosecutor is relieved of this responsibility by
a protective order of the tribunal.
Arkansas Rules of Professional Conduct 3.8(d). Commentary to this rule further
provides that “evidence tending to negate the guilt of the accused includes evidence
that tends to impeach a witness for the State.” See also the Deputy Attorney General’s
discovery memo dated January 4, 2010, for guidance on information to be disclosed
pursuant to Brady (exculpatory evidence) and Giglio (impeachment information) at
http://www.justice.gov/dag/discovery-guidance.html.
Information that would tend to impeach a government witness or disprove a
defendant’s guilt will, of course, vary depending on the offenses charged, nature of the
evidence, and defenses asserted. Giglio material includes information that tends to
impeach agents and officers who conducted an investigation, and this policy is intended
to address how such material is defined, collected, handled, and disclosed within the
office of the United States Attorney for the Western District of Arkansas.
2.

Policy: Impeachment Materials Generally
a.

DOJ Policy Regarding Impeachment Information

In addition to following the guidance issued by the Deputy Attorney General in
January 2010, prosecutors must comply with Department of Justice policy concerning
the disclosure of material favorable to a defendant, whether exculpatory or impeaching.
The policy is set out in § 9-5.001 of the U.S. Attorney’s Manual that can be accessed at
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/5mcrm.htm.
USAM § 9-5.001(C) requires disclosure of exculpatory and impeachment
information beyond that which is constitutionally and legally mandated, including (1) any
information inconsistent with an element of a crime charged or consistent with a

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recognized affirmative defense; (2) any information that casts a substantial doubt upon
the accuracy of evidence or that may have significant impact on the admissibility of
government evidence; (3) disclosure of information without regard to its admissibility,
and; (4) information which, viewed in isolation, may not call for disclosure but
cumulatively satisfies the policy’s requirement for disclosure.
USAM § 9-5.001(D) addresses the timing of disclosure and requires information
be turned over in time to allow a defendant to effectively use the information, generally
in advance of the beginning of the trial or other proceeding. Exculpatory material is to
be disclosed reasonably promptly after it is discovered. Impeachment information will
typically be disclosed at a reasonable time before trial to allow the case to proceed
efficiently. The policy allows prosecutors to consider other legitimate significant
interests, such as witness security, and to disclose after a witness has testified pursuant
to 18 U.S.C. § 3500 (the Jencks Act). Any exculpatory or impeachment information that
casts doubt on an aggravating sentencing factor but is not pertinent to proof of guilt
must be disclosed “no later than the court’s initial presentence investigation.” Finally, if
disclosure is to be delayed due to the classified nature of the information, a supervisor
must approve the delay and defendant must be notified regarding when and how
disclosure will occur.
b.

USAO WDAR Policy on Giglio Disclosures

It is the policy of this office to produce material required to be disclosed pursuant
to Giglio at the earliest time possible, while accounting for witnesses’ safety, the
integrity of other investigations, national security, and legitimate privacy concerns of
witnesses. The same policy will be applicable when information is learned by the
prosecution later in the litigation and when information becomes significant or pertinent
after a trial or hearing is underway.
In general terms:
* Prosecutors should ensure criminal history databases are checked when
circumstances suggest a witness may have a criminal history. Criminal convictions
should be disclosed.
* Prosecutors should make appropriate inquiry of all witnesses, including law
enforcement agents and officers, to determine whether information subject to
prosecutors’ disclosure obligations exists. (See policy regarding law enforcement
agents at Section III(C)(3).) Appropriate questions and extent of the inquiry will vary
from witness to witness, but, for example, inquiries should routinely be made about
matters such as criminal history (including arrests), accusations of dishonesty made
against the witness (including lawsuits), and disciplinary actions previously brought
against law enforcement personnel. More extensive inquiry will be necessary of
witnesses where circumstances suggest impeachment information likely exists. This

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refers to witnesses who receive benefits based on their testimony or may have other
biases or a known history of criminal conduct.
* Although disclosure of information favorable to defendants satisfies due
process obligations, disclosure does not necessarily equate to admissibility at trial.
Further, even if evidence is deemed admissible, the court may place limitations on
defendants’ use of the impeachment material. Note that Brady and Giglio address
disclosure, not admissibility, and defendants’ use of impeachment information could be
limited under the Federal Rules of Evidence by use of motions in limine and protective
orders.
3.

Policy: Handling Allegations of Law Enforcement Officer
Misconduct and Negative Findings of Credibility

On occasion, credibility findings or allegations of misconduct by federal agents
(or local or state officers associated with federal cases and task forces) are made.
When allegations arise, they should be handled with uniformity, propriety, and
consistency within Department of Justice policy. When a prosecutor becomes aware of
a negative finding or comment by a judicial officer about the credibility or integrity of any
law enforcement officer (federal, state, or local), the prosecutor must promptly report the
finding or comment to a supervisor and the Giglio coordinator.
a.

DOJ Policy Regarding Impeachment Information on Agents

The Attorney General first issued DOJ’s Policy Regarding the Disclosure to
Prosecutors of Potential Impeachment Information Concerning Law Enforcement
Agency Witnesses (“Giglio Policy”) in December of 1996. Essentially, the DOJ policy
(subsequently amended) is intended to ensure prosecutors receive sufficient
information from law enforcement personnel files to satisfy disclosure obligations and
defendants’ constitutional rights, “while protecting the legitimate privacy rights of
Government employees [agents and officers].” DOJ’s “Giglio Policy” (with 14
procedural provisions) is set out in USAM § 9-5.100, and can be accessed at
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/5mcrm.htm
The official policy applies to DOJ and Treasury Department law enforcement
agents. The USAO has historically used the same policy in handling impeachment
material concerning all agents and officers working on federal cases.

b.

Requesting Impeachment Information from Agencies

In short, USAM § 9-5.100 establishes a procedure by which the USAO may
obtain, from a law enforcement agency’s files, impeachment information concerning an

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agent or other agency employee. Pursuant to the policy, a written request for
information is made by the USAO’s Giglio coordinator to an official at the agency after a
prosecutor has contacted the Giglio coordinator about the need for the request.
Normally, the request is necessary because a prosecutor has reason to believe
impeachment information exists based on routine inquiries the prosecutor has made of
an agent before the agent testifies or swears out an affidavit. The policy further
addresses how the USAO should protect the information, when appropriate, from
unnecessarily broad dissemination.
c.

USAO WDAR Procedures Regarding Impeachment
Information on Agents and Officers

To implement and comply with DOJ policy, the USAO has adopted the following
procedures:
1.

RESPONSIBILITIES OF PROSECUTORS AND LAW
ENFORCEMENT AGENCY EMPLOYEES

The principal way the USAO will obtain Giglio information concerning law
enforcement agents or officers is via request to their agency by the USAO’s
Giglio coordinator.
Federal agencies are obliged to instruct their employees regarding the need for
this discussion with prosecutors. Agents also have an ongoing obligation to
advise the prosecutor of potential impeachment information of which they
become aware.
It is the responsibility of every prosecutor to promptly advise a supervisor and the
Giglio coordinator whenever (1) a law enforcement official (federal, state or local)
discloses problematic information during a Giglio inquiry, (2) a judicial officer
makes any adverse finding concerning a law enforcement officer’s credibility, and
(3) a law enforcement officer has become the subject or target of an investigation
or is charged as a defendant in a criminal case.

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2.

ACTIONS TAKEN AFTER CONSULTATION WITH SUPERVISOR
AND GIGLIO COORDINATOR

After consultation with a supervisor and the Giglio coordinator, decisions will be
made regarding how each individual situation should be handled. If an agent
discloses matters pertaining to job-related misconduct or disciplinary matters, a
formal written request for information from the agency’s personnel file will be
made by the Giglio coordinator. This request for Giglio information from an
agency may be made at any time, and disclosure by an agent is not a
prerequisite for an official request for information from a file.
When the USAO must handle potential impeachment information regarding an
agent, the personal professional reputation of the agency employee (and the
agency) is generally implicated. USAO personnel must treat the information with
care and professionalism. After the Giglio coordinator receives information from
an agency, provisions of USAM § 9-5.100 dictate how the material will be
handled and what limitations are placed on accessibility. The material may not
be generally accessible, and only prosecutors who need to know should be given
access. Giglio coordinators will keep materials that may be kept pursuant to
policy and regulation and will make it available to prosecutors upon appropriate
request. They will also return materials to the agency as required by policy and
regulation.
Prosecutors should bear in mind that, while the Giglio policies address
information gathering and handling, the policies do not resolve questions
regarding whether the information qualifies as Giglio material or whether it must
be disclosed.
In many cases, the information should be submitted to the court ex parte with a
request for a ruling on whether it must be disclosed. In some cases, it will be
disclosed to defense counsel with a motion in limine to exclude or limit the use of
the information or protective orders to control further dissemination of the
information. In clear cases, it will be disclosed immediately to the defense. The
Giglio coordinator will provide guidance regarding these difficult and sometimes
sensitive issues and has sample motions and memoranda.
If disclosure is made to the court or defense, the Giglio policy requires the USAO
provide to the law enforcement agency a copy of the disclosed material and
related pleadings and judicial rulings to the agency.

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E.

Trial Preparation Notes

When preparing for trial, it is the practice to meet with witnesses before trial.
During this preparation process, both prosecutors and agents may make notes of the
statements made by the witness. These notes raise a number of discovery issues.
First, the prosecutor should be aware that, if the witness statement is noted in
verbatim or essentially verbatim form, it may constitute Jencks material that would have
to be produced to the defendant like any other Jencks material.
Second, if, during the trial preparation session a witness makes a statement on a
material fact that is arguably inconsistent with prior statements, it may constitute Giglio
information that has to be disclosed to the defendant.
Third, if, during the trial preparation session, a witness makes a statement that is
exculpatory, this information must be disclosed to the defendant. It may not be obvious
to the prosecutor at the time of the trial preparation session that a statement may
constitute Giglio or Brady material, but it may become apparent at a later time or during
trial. For that reason, prosecutors must retain their notes, be cognizant of the potential
they may contain Giglio or Brady material, and review them if an issue arises at trial that
would alert the prosecutor that the notes may contain discoverable material.
Occasionally, during trial preparation only the attorney makes notes and the
agents do not. If something arises during trial preparation that would require disclosure
in discovery and the agent has not made any notes, the prosecutor should provide to
defendant the substance of the information either in a letter or e-mail. In the alternative,
the prosecutor may have the agent create a memorandum of interview regarding the
information that needs to be disclosed to the defendant, assuming the agent has
sufficient memory of the statement to do so accurately. With that in mind, the best
practice is that when, during the course of witness preparation, a prosecutor realizes a
witness has made a statement that should be disclosed in discovery, the prosecutor
should ask the agent to makes notes of the statements and to generate a report, even
if, up to that time, the agent has not taken any notes. When prosecutors disclose an
agent’s report instead of the substance of the prosecutor’s notes, the prosecutor should
compare his or her notes to the agent’s report to make sure all information that needs to
be disclosed is contained in the agent’s report. In any event, the prosecutor should
retain any notes he or she created that reflect statements that are deemed
discoverable.
F.

Agent Hand-Written or Rough Draft Notes

Agents typically make handwritten rough notes of witness statements during
interviews. They then convert their handwritten notes into a computer-generated report.
Depending on agency policy, some agents retain their handwritten notes but do not

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provide them to our office for inclusion in discovery. Other agencies routinely destroy
hand-written notes after creation of the formal report. Our office will not dictate to
agencies whether they retain or destroy their notes. Where, however, agencies retain
handwritten notes of interviews, issues may arise about whether an agent’s notes are
consistent with the computer-generated report.

IV.

Timing of Disclosures

Timely disclosure of discovery to the defense is very important. Timely
disclosure aids in the speedy resolution of cases, which makes the use of our time more
efficient. Further, the earlier we make discovery available, the more time we have to
correct any mistakes in, or supplement, discovery in a reasonably timely manner.
Finally, the sooner we disclose discovery, the better position we will be in should a
discovery dispute arise. In addressing discovery disputes, courts often focus on
whether the government’s disclosure of discovery was made in a reasonably prompt
manner.
Therefore, prosecutors should generally have discovery ready for disclosure in
compliance with the Pretrial Discovery Order. When new discovery is obtained, it
should be added as soon as possible and defense counsel should be alerted in writing
that discovery has been added to the file.
Ideally, in those cases where the prosecutor knows ahead of time who the
defense counsel will be and intends to provide copies of discovery consistent with this
discovery policy, the prosecutor may have the copies available to provide to defense
counsel at the arraignment, or as soon as possible thereafter.
V.

Form of Disclosures

We may disclose our discovery to defendants by providing them access to our
discovery in our office and/or by providing copies of portions of our discovery to
defendants. When practical, prosecutors should endeavor to provide defense counsel
with discovery in electronic form.
Documents produced to defense counsel (in either paper or electronic form)
should be produced in pdf format. Preferably, the documents should also be Batesstamped. Whether provided in paper or electronic form, when we provide copies of
discovery to defendants, a cover letter should accompany the discovery.

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In cases involving a large amount of discovery, whenever copies of discovery are
provided to defense counsel, defense counsel should defray the costs of providing
copies. That may mean defense counsel will pay for copying costs, provide paper to
the office, or provide blank CDs or DVDs. The nature and extent of requiring defense
counsel to defray costs will depend, of course, upon the nature, scope, and volume of
discovery being copied and the form in which the copies are being provided.
Prosecutors have discretion to determine what will be required by defense counsel in
this regard based on these factors.
VI.

Documentation of Discovery

It is important that we carefully document what we have in our discovery. This
can be accomplished by means of an index that identifies the information contained in
discovery or it can be accomplished by means of Bates numbers. In either event, a
record should be kept with the discovery reflecting what is contained within. When new
information is added to existing discovery, a notation or record should be made of
exactly what has been added, and when the information was added. When copies of
discovery are produced to defense counsel, either in paper or electronic format, a letter
should accompany the disclosure. That letter should identify with specificity (preferably
by reference to Bates numbers) the information being produced to defense counsel.
Another means of documenting what we produce to defendants is to create and retain a
copy of those materials (either in paper form or on disc) indicating the date of the
production.

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VII.

Departures from the Discovery Policy
A.

Considerations

There are a number of considerations that may merit a departure from this
discovery policy. They include, but are not limited to:
* national security-related or classified information;
* defendant’s refusal to agree to the stipulated discovery order;
* defendant’s failure to comply with reciprocal discovery obligations;
* defendant’s production of false or misleading documents or information;
* safety to witnesses, victims, and law enforcement officers;
* volume of discovery making copying unduly burdensome;
* nature of case making disclosure inappropriate for safety or other concerns;
* abuse/misuse of discovery by defense counsel;
* unknown or untested defense counsel;
* unwarranted and unnecessary invasions of privacy;
* defendant appearing pro se; and,
* ongoing criminal conduct that is the subject of an ongoing investigation.
There may be other case-related considerations that are not listed above that may
warrant a departure from this policy.
B.

Procedures

If a prosecutor believes departure from these guidelines is appropriate in a
particular case, the prosecutor is required to:
1) discuss the matter with the Criminal Chief;
2) follow the instructions given by the Criminal Chief;
3) draft a memorandum to the file outlining:
a) reasons for the departure;
b) supervisory consultation (date and identity of Criminal Chief);
c) directions provided by the Criminal Chief;
d) the scope and nature of the departure from the guidelines; and,
e) actions taken.
A copy of the memorandum authorizing departure from the discovery policy should be
retained in the case file.

***END***

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Memorandum
To:

Criminal AUSAs and SAUSAs
Western District of Arkansas

From:

Christopher D. Plumlee
Assistant United States Attorney/Criminal Chief
Western District of Arkansas

Date:

October 14, 2010

Subject:

ADDENDUM To Policy for Discovery in Criminal Cases

I.

Policy update for cases involving terrorism espionage,
counterintelligence and export enforcement. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SUPPLEMENT TO DISCOVERY POLICY

Introduction
As an update and supplement to the Western District of Arkansas Discovery
Policy issued August 31, 2010, the following provisions shall be included in this policy.
I.

Cases involving terrorism, espionage, counterintelligence and export
enforcement.
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

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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;

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.

***END***

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