BLOG BULLETS:

• Most federal agencies have what are sometimes called “Touhy regulations” which require parties seeking testimony of an agency employee to provide a summary of the testimony sought.
• The government sometimes points to regulations like this to force criminal defendants to provide summaries of the testimony they want to elicit from federal agents they subpoena.
• A Ninth Circuit case – United States v. Bahamonde, 445 F.3d 1225 (9th Cir. 2006) – holds such regulations are unconstitutional when applied to a criminal defendant.

 

NOW THE BLOG:

An issue recently came up in one of the CJA panel cases here involving what is sometimes called a “Touhy regulation,” after the case of United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).  These regulations, which exist for most, if not all, federal law enforcement agencies, preclude an agency employee, including a law enforcement agent, from providing testimony unless the party seeking the testimony first provides a summary of the testimony sought.  As one example, the Department of Justice regulation for cases in which the United States is a party provides:

If oral testimony is sought by a demand in a case or matter in which the United States is a party, an affidavit, or, if that is not feasible, a statement by the party seeking the testimony or by the party’s attorney setting forth a summary of the testimony sought must be furnished to the Department attorney handling the case or the matter.

28 C.F.R. § 16.23(c).  See also 6 C.F.R. § 5.45(a).

The government sometimes points to regulations such as these when we subpoena an agent to provide testimony at a trial.  This is obviously problematic because one generally doesn’t want to provide an adverse witness with a summary of one’s examination prior to actually examining the witness in court.  It’s also problematic because the agent will presumably show the summary to the prosecutor – in fact, the DOJ regulation quoted above requires the summary to be furnished to “the Department attorney handling the case” – and the summary could tend to reveal part of the defense theory, which is also something one generally doesn’t want to do.

Fortunately, there’s a great Ninth Circuit case – United States v. Bahamonde, 445 F.3d 1225 (9th Cir. 2006) – that holds regulations like these are unconstitutional when asserted against a criminal defendant.  Bahamonde considered the Department of Homeland Security regulation cited above and noted that it, like the DOJ regulation, “contains no requirement that the government specify the nature of testimony or other evidence that it intends to use to rebut the demanded testimony.”  Id. at 1228-29.  It then held that this violated the Due Process Clause as interpreted by the Supreme Court in Wardius v. Oregon, 412 U.S. 470 (1973).  See Bahamonde, 445 F.3d at 1229.  The Supreme Court held in Wardius that:

It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning the refutation of the very pieces of evidence which he disclosed to the State.

Wardius v. Oregon, 412 U.S. at 476, quoted in Bahamonde, 445 F.3d at 1229.  The Bahamonde court held that “[t]his same unfairness inheres in the present criminal case,” because:

Bahamonde was required to state with specificity the testimony he expected from [the agent] but the government was not required at any time to state what evidence it expected to offer in rebuttal, either from [the agent] or anyone else.  (Footnote omitted.)  Nor was there any other requirement in force to compel the government to reveal that information.  See Fed. R. Crim. Pro. 16 (requiring statements of expected testimony only with regard to expert witnesses).

Bahamonde, 445 F.3d at 1229.

Put simply, Touhy regulations like the DOJ regulation quoted above and the one considered in Bahamonde violate the Due Process Clause when applied to a criminal defendant and so can’t be enforced against a criminal defendant.  Remind the government of this anytime it responds to a subpoena by citing such a regulation, and remind the court anytime it tries to quash a subpoena or preclude you from calling a witness because you didn’t comply with such a regulation.