Aren’t Notes a Written Record Too?

April 23, 2013
By Hanging Out with Carl Gunn


  • Sometimes agent notes can be better than the agent’s report.
  • Rule 16 requires disclosure of “any written record” of a defendant’s oral statements made in response to interrogation.
  • Several cases have held that “any written record” includes not just the agent’s report, but also the agent’s notes.


In my last few years as a federal public defender, I had several cases where prosecutors gave me lengthy typed reports of a defendant’s statements during an interrogation but initially resisted giving me the original handwritten notes made at the time of the interrogation. I really wanted the notes because of the way reports tend to get polished into something more favorable to the government while notes made on the spot don’t get so polished. And I noticed that the provision for discovery of defendants’ statements in Rule 16 of the Federal Rules of Criminal Procedure had been expanded back in 1991 to add “any written record which contains reference to a relevant oral statement made by a defendant in response to interrogation.” Fed. R. Crim. Pro. 16 advisory committee note (1991 Amendment). See Fed. R. Crim. Pro. 16(a)(1)(B) (present version of rule including “the portion of any written record containing the substance of any relevant oral statement made before or after arrest if the defendant made the statement in response to interrogation by a person the defendant knew was a government agent”).

This of course triggers the question of whether “notes” are a “written record.” It turns out several courts have addressed that question. Two courts of appeals have held that agent notes are not covered by the rule. See United States v. Brown, 303 F.3d 582, 590-91 (5th Cir. 2002); United States v. Muhammad, 120 F.3d 688, 699 (7th Cir. 1997). But two other courts of appeals have held that agent notes are covered by the rule, and in one of those cases, the government conceded the point. See United States v. Clark, 385 F.3d 609, 619 (6th Cir. 2004); United States v. Molina-Guevara, 96 F.3d 698, 705 (3d Cir. 1996). Several recent district court cases, including one in this circuit, have considered this split of authority and come down on the side of disclosure. See United States v. W.R. Grace, 401 F. Supp. 2d 1087, 1090-92 (D. Mont. 2005); United States v. Vallee, 380 F. Supp. 2d 11 (D. Mass. 2005); United States v. Almohandis, 307 F. Supp. 2d 253 (D. Mass. 2004).

There’s at least a couple of good arguments that the latter cases are the cases our courts should follow, moreover. One argument is an argument made in the W.R. Grace case, which is that Ninth Circuit law is more liberal in its disclosure requirements. See id., 401 F. Supp. 2d at 1090-91. There’s also a point made in the Massachusetts district court opinions, which note that the cases which do not require disclosure ignore the 1991 amendment adding the “written record” provision to Rule 16(a)(1)(B)(ii) and rely largely on case law applying the Jencks Act disclosure requirements. See Vallee, 380 F. Supp. 2d at 13; Almonhadis, 307 F. Supp. 2d at 256-57. (NB: The Brown opinion actually does address the 1991 Rule 16 amendment, but only in a footnote,see id. at 590 n.18, and not in a very persuasive way.)

More importantly, the plain language of the “written record” provision applies to agent notes, as pointed out in both the Sixth Circuit decision in Clark and the district court decisions. As the Court explained in Clark:

[The agent’s] so-called “rough notes” of Defendant’s interrogation qualify as such a written record. They contain, in writing, the substance of Defendant’s post-arrest oral statement made to [the agent] after [the agent] had told Defendant that he had been indicted on two counts of crack cocaine distribution. . . .

. . .

. . . The government . . . ignores Rule 16(a)(1)(B)(ii), which additionally requires the disclosure of “the portion of any written record containing the substance” of such an oral statement. This rule imposes a more specific disclosure obligation than Rule 16(a)(1)(A), and [the agent’s] notes, by definition, constitute a portion of a written record containing the substance of Defendant’s interview.

Clark, 385 F.3d at 619 (emphasis added in Clark). See also W.R. Grace, 401 F. Supp. 2d at 1091 (recognizing “plain meaning” of Rule 16(a)(1)(B)(ii)); Vallee, 380 F. Supp. 2d at 12 (recognizing “the clear language of the rule”).

The advisory committee’s note also suggests that “written record” does not mean just formal records like official reports.

The amendment to Rule 16(a)(1)(A) expands slightly government disclosure to the defense of statements made by the defendant. The rule now requires the prosecution, upon request, to disclose any written record which contains reference to a relevant oral statement by the defendant which was in response to interrogation, without regard to whether the prosecution intends to use the statement at trial. The change recognizes that the defendant has some proprietary interest in statements made during interrogation regardless of the prosecution’s intent to make any use of the statements.

The written record need not be a transcription or summary of the defendant’s statement but must only be some written reference which would provide some means for the prosecution and defense to identify the statement.

Fed. R. Crim. P. 16 advisory committee’s note (1991 amendment), quoted in W.R. Grace, 401 F. Supp. 2d at 1090 (emphasis added in W.R. Grace.) See also United States v. Vallee, 380 F. Supp. 2d at 12-13. An earlier advisory committee note provides additional support, by indicating that disclosure of statements is favored because, inter alia, such disclosure “is in line with what the Supreme Court has described as the ‘better practice.’” Fed. R. Crim. P. 16 advisory committee’s note (1966 amendment) (quoting Cicenia v. LaGay, 357 U.S. 504, 511 (1958)).

Any argument that there is no harm if the final report reflects everything that is in the notes, see Brown, 303 F.3d at 591, confuses the requirement created by the rule with whether failure to comply with that requirement is harmless error. It also ignores (1) the fact that no harm is done by disclosure if the report is truly duplicative of the notes and (2) the possibility that defense counsel may see contradictions, omissions, or nuances more readily than a prosecutor who is on the other side of the case or a judge who knows less about the case than the attorneys who have been preparing for months. When no harm is done by disclosure and there is a possibility that defense counsel may see something in the notes that the court or prosecutor will not, the court should err on the side of ordering disclosure. That is what the rule requires and also what is consistent with the view expressed in the advisory committee notes.

As a last note, there may be a reason the Ninth Circuit hasn’t decided this issue. I’ve filed motions seeking these notes on several occasions, and each time the government has backed down and provided the notes. This actually makes sense from the government’s perspective, because (1) there’s no harm in disclosure if there aren’t any inconsistencies between the notes and the report and (2) it’s Giglio material that has to be disclosed anyway if there are inconsistencies.