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RECIPROCAL DISCLOSURE [THE “TWO-WAY” STREET]

COUNSEL SHOULD BE MINDFUL THAT DEFENSE WITNESSES’ STATEMENTS MAY BE DISCOVERABLE BY PROSECUTION

Calling a defense witness, other than the defendant, will now render any relevant prior statements of that witness producible to the prosecution upon request, after the witness testifies on direct. Prior Texas cases had held that Gaskin v. State, 353 S.W.2d (Tex Cr.App. 1961) and Zanders v. State, 480 SW.2d 708 (Tex.Cr.App. 1972) did not require disclosure of defense witness statements.

Ballow v. State, 640 SW.2d 237 (Tex. Cr. App. 1982).

FED. R. CRIM. P. Rule 26.2 makes the Jencks Act [18 U.S.C. § 3500] a two-way street providing for production of defense witness’ recorded statements in much the same manner as the Jencks Act provided for production of prosecution witness’ statements. The Rule expressly provides that “after a witness other than the defendant had testified on direct examination” upon motion of the opposing party the court shall order the production of “any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified.” FED. R. CRIM. P. Rule 26.2.

See                  US v. Nobles, 422 US 231, 232 (1975);

US v. Tarnowski, 583 F.2d 903, at p. 906 (6^th Cir. 1978), cert. denied, 440 US 918 (1979).

This requirement has been held not to become applicable until after the witness has actually testified at trial.

US v. Felt, 502 F. Supp. 71 (D. Colo. 1980).

Cf.                   US v. Abrams, 539 F. Supp. 378 (S.D.N.Y. 1982)(requiring reciprocal discovery 24 hours prior to testimony where Government was required to reciprocate).

Be mindful that the Government is equally affected by reciprocal discovery. See Mauricio

1. Duckworth, No. 86-1842 (7^th Cir. 1988) (discussing the state’s failure to reveal alibi rebuttal witnesses invalidates conviction).

Note also, that the prosecution will be “deemed” to have knowledge of and access to materials held by any federal agency that has taken part in the investigation on wihich the charges the defendant faces are based. US v. Bryan,   F.2d , No. 87-3059 (9^th Cir. 1989)(noting geographical boundaries notwithstanding).

And while FED. R. CRIM. P. Rule 26.2 omits the Jencks Act’s express prohibition against disclosures “until said witness has testified on direct examination in the trial of the case,”

U.S.C. § 3500(a), at least one court has held that same does not allow pretrial disclosure, US v. Litman, 547 F. Supp. 645 (W.D. Penn. 1982), a difficult position to reconcile with FED. R. CRIM.

26. Rule 12(i) providing for discovery of witness statements at a pretrial suppression hearing pursuant to Rule 26.2. See US v. Gerena, 116 F.R.D. 596 (D. Conn. 1987) (stating that expert witness’s reports simultaneously disclosed by defense and prosecution prior to pre-trial suppression hearing).

CONSTITUTIONALITY OF REQUIRING AN ACCUSED TO MAKE DISCLOSURE

Such mandatory disclosure by the criminal defendant has been approved under certain limited circumstances by the Supreme Court in Williams v. Florida, 339 US 943 (1970) (stating Florida statute required defendant to disclose alibi and witnesses); US v. Nobles, 422 US 225 (1975) (noting disclosure of defense witness investigator’s report).

AGENT’S ROUGH NOTES

An officer’s rough investigative notes may be Jencks material. US v. Paoli, 603 F.2d 1029 (2d Cir. 1979); US v. Gaston, 608 F.2d 607, 611-12 (5^th Cir. 1979); US v. Rippy, 606 F. 2d 1150, 1153 (D.C. 1979); US v. Ammar, 714 F.2d 238 (3d Cir. 1983) (holding that Jencks Act, now FED.

26. CRIM. P. Rule 26.2, includes final reports, rough notes and any drafts used to prepare the final report). Contra US v. Hinton, 719 F.2d 711 (4^th Cir. 1983) (stating where incorporated into agents reports); US v. Soto, 711 F.2d 1558 (11^th Cir. 1983) (reversing trial court ruling striking government witness’ testimony on grounds rough notes not produced).

Accordingly, while some courts require preservation of such “notes”, US v. Sanchez, 635 F.2d 47, 65-66 (2d Cir. 1980); US v. Walden, 590 F.2d 85, 86 (3d Cir. 1979), cert. den., 444 US 849; US v. Crowell, 586 F.2d 1247, 1248 (4^th Cir. 1973), others hold that routine and good faith destruction of these notes which have been incorporated into formal reports does not violate the Jencks Act. US v. Cole, 634 F.2d 866, 867-8 (5^th Cir. 1981); US v. Kuykendall, 633 F.2d 118, 199 (8^th Cir. 1980); US v. Fredrick, 583 F.2d 273, 274 (6^th Cir. 1978), cert. den., 444 US 860; US v. Shovea, 580 F.2d 1382, 1389-90 (10^th Cir. 1978). The Supreme Court has expressed reluctance to impose an absolute duty on the government or its agents to preserve “all material that might be of conceivable evidentiary significance in a particular prosecution.” Arizona v. Youngblood, 488 U.S. 51, 58 (1988). Typically, for the Defendant to gain any remedy for the destruction of such materials, he must demonstrate bad faith on the part of the police or the prosecution. Id.

 In the following cases, rough notes written by government agents while interviewing witnesses were held not to be admissible under the Jencks Act.

Goldberg v. US, 425 US 94 (1976);

US v. O’Malley, 796 F.2d 891 (7^th Cir. 1986);

US v. Hinton, 719 F.2d 711 (4^th Cir. 1983);

US v. Griffin, 659 F.2d 932 (9^th Cir. 1981);

US v. Soto, 711 F.2d 1558 (11^th Cir. 1983);

US v. Lloyd, 743 F.2d 1555 (11^th Cir. 1984).

However, an agent’s report or rough notes may be discoverable as the agent’s own Jenck’s Act statements if the agent testifies. See US v. Del Toro Soto, 728 F.2d 44 (1^st Cir. 1984); US v. Kaiser, 660 F.2d 724 (9^th Cir. 1981); US v. Roemer, 703 F.2d 805 (5^th Cir.), cert. den., 104 S.Ct.

341 (1983); US v. Barlin, 686 F.2d 81 (9^th Cir. 1981); US v. Gaston, 608 F.2d 607 (5^th Cir. 1979).

The extent to which government agents should preserve rough notes for subsequent production has been disagreed upon by the circuits. The Second, Fourth, Sixth, Eighth and Tenth Circuits have held that a government agent does not have a duty under the Jencks Act to preserve notes or reports for subsequent production. US v. Hinton, 719 F.2d 711 (4^th Cir. 1983); US v. Waterman, 704 F.2d 1014 (8^th Cir. 1983); US v. Barlin, 686 F.2d 81 (2d Cir. 1980); US v. Cole,

634 F.2d 866 (5^th Cir. 1980); US v. Grammatikos, 633 F.2d 1013 (2d Cir. 1980); US v. Kuykendall,

633 F.2d 118 (8^th Cir. 1980); US v. Frederick, 583 F.2d 273 (6^th Cir. 1978).

Although the Eighth Circuit held in Kuykendall that the Jencks Act imposes no duty to preserve original investigative notes, the court has implied that if a defendant can show prejudice, even good faith destruction of an agent’s notes after incorporation into a final report could be reversible error. US v. Hoppe, 645 F.2d 630 (8^th Cir.), cert. den., 454 US 849 (1981).

The Seventh Circuit has suggested in dictum that an agent’s handwritten interview notes should be preserved so that the defendant can determine the usefulness of the agent’s prior statements for impeachment purposes. US v. Batchelder, 581 F.2d 626 (7^th Cir. 1978), rev’d on other grounds, 442 US 114 (1979).

The Third Circuit has held that destruction of a testifying officers handwritten notes and rough drafts violates the Jencks Act. US v. Ammar, 714 F.2d 238 (3d Cir.), cert. den., 104 S. Ct. 344 (1983). US v. Walden, 590 F.2d 85 (3d Cir.), cert. den., 444 US 849 (1979).

The D.C. Circuit has held that agents must always preserve their handwritten notes because notes not covered by the Jencks Act may nevertheless be discoverable under Brady or FED. R. CRIM. P. Rule 16; US v. Harrison, 524 F.2d 421 (D.C. Cir. 1975).

The Ninth Circuit distinguishes between an agent’s rough notes and handwritten rough drafts of reports. The court allows destruction of a rough draft if it is subsequently incorporated into a final formal report that is reviewed, adopted or signed by the testifying agent. US v. Bagnarial, 665 F.2d 877 (9^th Cir. 1981); US v. Kaiser, 660 F.2d 724 (9^th Cir. 1981), cert. den., 456

US 962 (1982); US v. Griffin, 659 F.2d 932 (9^th Cir. 1981).

 

BUT IF THEY’RE ROUGH ENOUGH…

The Ninth Circuit takes the view that if an agent’s rough notes are rough enough, they’re not Jencks material. “A government agent’s rough notes will not be Jencks Act statements when they are not complete, are truncated in nature, or have become an insiftable mix of witness testimony, investigator’s selections, interpretation, and interpolations.” US v. Smitob, 901 F.2d 799, 809 (9^th Cir. 1990). See also U.S. v. Griffin, 659 F.2d 932 (9^th Cir. 1981), cert. denied, 456

U.S. 949, 102 S. Ct. 2019, 72 L. Ed.2d 473 (1982); U.S. v. Spencer, 618 F.2d 605 (9^th Cir. 1980).

The lesson to all you future DEA Agent: Disorganization is the key to a successful career.