Memorandum

Subject

Date

Discovery Policy for Criminal Cases1
To

From

Criminal Attorneys

I.

October 15, 2010
John W. Vaudreuil
United States Attorney
Western District of Wisconsin

INTRODUCTION

The long-standing policy of this office has been, and continues to be, to provide broad
and early discovery as part of our effort to foster fair and speedy resolutions of criminal cases and
to promote the truth-seeking mission of the Department of Justice. Our policy has always
recognized that there are times when countervailing factors counsel against this broad and early
disclosure. As set forth below, when specific, case-related considerations warrant a departure from
the standard discovery practice of this office, prosecutors must obtain supervisory approval. Our
discovery goals have always been, and remain: (1) to assure the defendant a fair trial; (2) to avoid
burdensome litigation over the appropriate scope and timing of disclosures; (3) to limit judicial
frustration and confusion with last-minute discovery litigation prior to or during trial; and (4) to
allow prosecutors to focus on effective trial preparation and presentation without distracting
discovery issues coming into play. Most fundamentally, the discovery policy outlined in this
document will help to ensure that we continue to enjoy the reputation with the district court and
the defense bar as an office that “does not hide the ball” and is interested in early and fair resolution
of criminal cases. The discovery practices set out below are designed to achieve these goals.
II.

LEGAL FRAMEWORK

Our disclosure obligations are set forth in (1) Rule 16, Federal Rules of Criminal
Procedure; (2) Rule 26.2, Federal Rules of Criminal Procedure, and 18 U.S.C. § 3500 (the Jenks Act);
(3) Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), and relevant
case law; and (4) the Department of Justice’s policy on the disclosure of exculpatory and
impeachment information (USAM Sections 9-5.001 (“Policy Regarding Disclosure of Exculpatory
and Impeachment Information”) and 9-5.100 (“Policy Regarding the Disclosure to Prosecutors of

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This policy 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, privilege, or benefits. See United States v. Caceres, 440 U.S. 741 (1979).

 Potential Impeachment Information Concerning Law Enforcement Witnesses”)). Each prosecutor
in this office must be familiar with and comply with each of these authorities. The first principle
for the discovery policy for this office is, quite simply, “obey all rules.”
III.

GATHERING THE INFORMATION
A.

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 of the criminal case against the defendant. USAM § 95.001.
Our duty to obtain information from the prosecution team includes not only exculpatory
and impeachment information, but also all information we are required to disclose under Rules 16
and 26.2, and 18 U.S.C. § 3500. Department of Justice policy also includes in its definition of
“impeachment information” any information that “might have a significant bearing on the
admissibility of prosecution evidence.” USAM 9-5.001(C)(2). AUSAs will provide information
relevant to both trial and pretrial suppression matters.
Prosecutors in this office should err on the side of inclusiveness when identifying the
members of the prosecution team for discovery purposes. Because we work on so many cases with
state and local officers, it is crucial that we take a broad view when defining “the prosecution
team.” In addition, if the case is designated as a “parallel proceeding” within this office, it is
necessary to include civil division attorneys in our prosecution team as they may have discoverable
information obtained during the parallel civil proceeding. Carefully considered efforts to locate
discoverable information are more likely to avoid future litigation over discovery issues and avoid
surprises at trial.
We have developed a standard letter which prosecutors are encouraged to use to ensure
that the prosecution team understands our discovery obligations, and their obligations to make full
disclosure to us of discovery materials. (A copy of this letter is attached to this memorandum.) As
set out in the standard letter, it is the practice of this office to identify one person as the “point
person” for all law enforcement officers and agents on the prosecution team. Ordinarily, this point
person will be the lead federal agent assigned to the case.
In addition, regarding our obligations to search for and disclose, where appropriate, law
enforcement impeachment information, this office has developed a memorandum titled “Potential
Impeachment Information for Law Enforcement Witnesses.” This memorandum must be provided
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 to all law enforcement officers who may testify at hearing or trial, or who could be the affiant for
any warrant or other court process. The assigned prosecutor must note in the case file jacket when
this memorandum was provided to specific agents or officers on the prosecution team. (A copy of
this memorandum is attached.)
B.

Materials to Review

To ensure all discovery is disclosed on a timely basis, all potentially discoverable
material within the custody or control of the prosecution team should be reviewed. That process
should cover the following areas:
1.

Prosecution Team Files

Prosecutors should have access to the substantive case files and any other files or
documents the prosecutor has reason to believe may contain discoverable information related to
the case. The prosecutor may personally review the file or documents or may choose to request
production of potentially discoverable materials from the case agents. Prosecutors are encouraged
to use our standard letter to outline discovery obligations and to request production of discoverable
materials from the prosecution team. If discoverable information is contained in a document that
the investigating agencies deem to be an internal document, it may not be necessary to produce the
internal document, but it will be necessary to produce all of the discoverable information contained
in that document.
All emails should be preserved and reviewed for discoverable information. NOTE: The
prosecution team should avoid using email to communicate substantive case-related information
in criminal and parallel criminal/civil cases because emails are often hurried and not carefully
drafted to ensure accuracy. If email is used to communicate such information within the
prosecution team, or with victims/witnesses, or anyone else, the email must be printed and
maintained in the case file. If the person sending the email eventually is a witness, the email may
well be discoverable. Finally, while substantive emails must be maintained and reviewed during
the discovery phase, any discoverable information may be disclosed in an alternative form (e.g., a
letter or memo).
2.

Confidential Information/Source Files

The credibility of cooperating witnesses or informants will always be at issue if they
testify during a trial. These files must be reviewed for discoverable information and copies made
of relevant portions for discovery purposes. (This subject is generally outlined in our discovery
letter to the investigating agents.) 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. It is the policy of this office that any discoverable information from the
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 informant/source file will be provided to the defense through a summary letter rather than
producing the record in its entirety. Finally, prior to any disclosure, prosecutors must consult with
the investigative agency to evaluate any security risks that may arise with respect to disclosure
from confidential files, and to develop a strategy for addressing those risks or minimizing them as
much as possible, consistent with our discovery obligations.
3.

Evidence and Information Gathered During the Investigation

Generally, all evidence and information during the investigations should be reviewed.
This information is specifically requested in our standard discovery letter to the investigative
agencies.
4.

Evidence Gathered in Parallel Civil Investigations

If a parallel case has been opened in this office, the prosecutor and the civil AUSA must
be in constant contact regarding discoverable materials. If a regulatory agency is involved, either
as a member of the prosecution team or in the parallel civil proceeding, that regulatory agency files
should also be reviewed for discoverable materials.
5.

Substantive Case-Related Communications

Substantive case-related communications may contain discoverable information. Those
communications containing discoverable information should be maintained in the case file or
otherwise preserved in a manner that associates them with the case or investigation. These
communications may be memorialized in emails, memoranda, or notes. These communications
may be substantive when they are factual reports about investigative activity, factual discussions
of the relative merits of evidence, factual information contained during interviews with
witnesses/victims, and factual issues relating to credibility. All close calls regarding the
substantive nature of these communications should be resolved in favor of retention, with a
decision on disclosure being made subsequently.
Ordinarily, 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 an interview report, our disclosure of the interview report or
other documents will ordinarily satisfy our disclosure obligation.
6.

Impeachment Information Regarding Law Enforcement Witnesses

Prosecutors in this office must provide our Giglio memorandum to each law enforcement
officer who may testify or provide a sworn affidavit in the case. If the law enforcement officer
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 believes there may be information covered by the memorandum, the AUSA Giglio coordinator must
be contacted and the matter discussed.
7.

Impeachment Information Regarding Non-Law Enforcement Witnesses and FRE
806 Declarants

All potential impeaching information in the possession of the prosecution team relating
to non-law enforcement witnesses must be gathered and reviewed. (This subject is discussed in our
standard discovery letter for the investigating agencies.) A detailed list of the type of information
we should be looking for is set out in the DOJ memorandum dated January 4, 2010, titled
“Guidance for Prosecutors Regarding Criminal Discovery.”
8.

Witness Interview Reports

All witness interviews conducted for the purpose of obtaining information pertinent to
the matter or the case should be set out in a written report. If an interview was audio or video
recorded, further memorialization is generally not necessary. In the usual case, all witness
interview reports will be produced shortly after the arraignment; in all but the most exceptional
case, this disclosure will be completed no later than two weeks before trial.
(a)

Witness Statement Variations

Occasionally, witnesses statements will vary during the course of an interview or
investigation. For example, a witness may initially deny being involved in criminal activity and
the information provided may broaden or change considerably over the course of time, especially
if there are a series of interviews that occur over several days or weeks. Material variances in a
witness’s statement should be memorialized, even if they are within the same interview, and they
should be provided to the defense as Giglio information.
(b)

Trial Preparation Meetings

Trial preparation meetings with witnesses generally need not be memorialized. The
prosecutor should be attuned to new or inconsistent information disclosed by the witness during
a pre-trial witness preparation session. New information that is exculpatory, or impeaching
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. This information may be provided
in a report setting out the preparation meeting statements, or may be summarized in a letter to
defense counsel.
New inculpatory information need not be disclosed, but, if significant, should be
disclosed as it may facilitate a guilty plea. If the new inculpatory information is developed on
direct examination, the defense may cross-examine with all prior reports as inconsistent. A
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 problem occurs if the witness provides new inculpatory information during witnesses preparation
then returns during trial to the prior statement. The prosecutor must then impeach by addressing
the witness prep statement or, alternatively, inform defense counsel that information had been
provided during the witness prep session and the witness has now returned to a prior statement.
(c)

Agent Notes

It is standard practice in the Western District of Wisconsin that the Magistrate Judge
enters an order at the first appearance directing that all agent notes be preserved for possible future
review and disclosure. Accordingly, our standard discovery letter to the agents directs them to
preserve investigative notes in existence as of that date. Agent notes need only be reviewed if there
is some reason to believe that the notes are materially different from the written memorandum, if
the precise words used by the witness are significant, or if the witness disputes the agent’s account
of the interview. Prosecutors must pay particular attention to agent notes generated during the
interview of the defendant or an individual whose statement may be attributed to a defendant.
These notes must be disclosed pursuant to Rule 16.
C.

Conducting the Discovery Review

The prosecutor is ultimately responsible for compliance with all discovery obligations.
While it is preferable for prosecutors to review the information themselves in every case, this
review will not always be feasible or necessary. Because responsibility for compliance with
discovery obligations rests with the prosecutor, the prosecutor must develop a process for review
of pertinent information to ensure that discoverable information is identified. The prosecutor may
involve agents, legal assistants, or others in the process, and set forth criteria for identifying
potentially discoverable information, but prosecutors must not delegate the disclosure decision
itself.
IV.

PROVIDING DISCOVERY TO THE DEFENSE

Prosecutors must be familiar with all federal rules, cases, and USAM provisions
regarding discovery in criminal cases. It is the policy of this office that broad and early disclosures
will be provided - in many instances broader, more comprehensive, and earlier than required by
discovery obligations. It is the policy of this office to advise the court and defense counsel that we
are voluntarily producing discovery earlier, and beyond what is required, but we are not
committing to any discovery obligation beyond the discovery obligations set out by law.
1.

Considerations Regarding Scope and Timing of Disclosures

Broad and early discovery promotes fair trials, fosters speedy resolution of most cases,
and avoids time-consuming discovery litigation as we approach trial. Prosecutors must always
consider, however, whether any case-specific concerns require a different approach to discovery
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 in the case. These considerations include things such as (1) protecting victims and witnesses from
harassment and intimidation; (2) protecting the privacy interests of witnesses; (3) protecting
ongoing investigations; (4) protecting national security interests; (5) enhancing the likelihood of
reciprocal discovery from the defendant; and (6) other strategic considerations that might enhance
the likelihood of achieving a just result in a particular case. In this district, interview reports of
testifying witnesses are considered § 3500 material even though the witness may not have adopted
the agent’s report prior to testifying.
While this office provides expansive and early discovery, we do not have an “open” file
policy. While we will inform the court and defense counsel that we are providing discovery earlier
and more broadly than required by law, but this is a purely voluntary decision and we intend that
discovery remain covered by all applicable rules.
2.

Timing of Discovery
(a)

Rule 16

Pursuant to the standard court order in this district, Rule 16 materials must be provided
within seven (7) days of arraignment. Pre-indictment preparation and guidance to the prosecution
team will ensure that Rule 16 materials have been collected prior to indictment and prepared for
production within seven (7) days of arraignment. All Rule 16 materials generated or discovered
later must be provided immediately.
(b)

Witness Statements

It is the policy of this office in most cases to provide witness statements at the same time,
or near to the same time, as the Rule 16 materials. We will inform the court and defense counsel
that we are doing this voluntarily and that this office still stands by its rights under § 3500. In any
event, we will inform the court that we will provide witness statements no later than two (2) weeks
prior to the scheduled trial. If we have witness security problems we should use our form
protective agreement, which controls the copying of materials provided to defense counsel. If the
prosecutor believes a specific case warrants withholding witness statements for later disclosure,
that variance from our standard discovery policy requires supervisor approval. After supervisory
approval has been obtained, the court and defense counsel will be informed that we intend to vary
from our standard policy and to follow a different process for providing witness statements in the
specific case.
(c)

Exculpatory/Impeachment Information

All exculpatory information must be disclosed to the defendant immediately after
discovery. Impeachment information, which depends on the prosecutor’s decision on who is or
may be called as a government witness, should be disclosed at a reasonable time before trial to
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 allow the trial to proceed efficiently. It is the policy of this office that impeaching information will
be disclosed no later than two (2) weeks prior to trial. If the prosecutor believes in a specific case
that later disclosure is warranted, this decision to vary from the office policy requires supervisory
approval. Discovery obligations are continuing, and the prosecutor should always be alert to any
development occurring up to and through trial of the case that may impact discovery obligations
and require disclosure of information that was previously not disclosed.
3.

Recording Disclosures

Prosecutors must make a record of when and how information is disclosed or otherwise
made available to defense counsel. Discovery matters often become the subject of litigation in our
criminal cases and keeping a record of the disclosure confines the litigation to substantive matters
and avoids disputes over what actually was disclosed. Generally, discovery will be provided to
defense counsel on a disc and memorialized by a cover letter either describing the items contained
on the disc or setting out the page numbers for the items contained on the disc.

V.

SPECIAL CONSIDERATIONS IN CASES INVOLVING CLASSIFIED OR SENSITIVE
NATIONAL SECURITY INFORMATION

Cases involving national security, including terrorism, espionage, counterintelligence,
and export enforcement, can present unique and difficult criminal discovery issues. The
Department of Justice has developed special guidance for those cases, which is contained in Acting
Deputy Attorney General Gary G. Grindler’s September 29, 2010, memorandum, “Policy and
Procedures Regarding the Government’s Duty To Search for Discoverable Information in the
Possession of the Intelligence Community or Military in Criminal Investigations.” Prosecutors
should consult that memorandum and their supervisors regarding discovery obligations relating
to classified or other sensitive national security information. As a general rule, in those cases where
the prosecutor, after conferring with other members of the prosecution team, has a specific reason
to believe that one or more elements of the Intelligence Community (IC) possess discoverable
material, he or she should consult the Department’s National Security Division (NSD) regarding
whether to request a prudential search of the pertinent IC element(s). All prudential search requests
and other discovery requests of the IC must be coordinated through NSD.
Although discovery issues relating to classified information are most likely to arise in national
security cases, they may also arise in a variety of other criminal cases, including narcotics cases,
human trafficking cases, money laundering cases, and organized crime cases. In particular, it is
important to determine whether the prosecutor, or another member of the prosecution team, has
specific reason to believe that one or more elements of the IC possess discoverable material in
criminal cases involving: corrupt or fraudulent practices by middle or upper officials of a foreign
government; violations of the Arms Export Control Act or the International Emergency Economic
Powers Act; trading with the enemy, international terrorism, or significant international narcotics
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 trafficking, especially if they involve foreign government or military personnel; and significant
cases involving international suspects and targets; and cases in which one or more targets are, or
have previously been, associated with an intelligence agency.
For these cases, or for any other case in which the prosecutors, case agents, or supervisors making
actual decisions on an investigation or case have a specific reason to believe that an element of the
IC possesses discoverable material, the prosecutor should consult with NSD regarding whether to
make through NSD a request that the pertinent IC element conduct a prudential search. If neither
the prosecutor, nor any other member of the prosecution team, has a reason to believe that an
element of the IC possesses discoverable material, then a prudential search generally is not
necessary.

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