If They’re Giving Us the Report, Why Not Give Us the Notes?

May 14, 2013
By Hanging Out with Carl Gunn



  • Notes of a witness interview may be Jencks material, either as a statement of a witness if they’re a substantially verbatim recording or as a statement of the agent notetaker if he or she testifies about the witness’s statement.
  • Notes may be Brady material, either when they contain something the later report and testimony doesn’t or when they don’t contain something the later reportand testimony does.
  • Common sense suggests prosecutors should disclose notes; there’s no harm if the notes are identical to the report, and there’s arguable Brady material if they’re different.



Three weeks back, I wrote a post (see “Aren’t Notes a Written Record Too?” in the prior posts list there in the right-hand column) on the right to notes taken by an agent of the interrogation of a defendant. The argument there turned on a specific provision of Rule 16 applicable to written records of a defendant’s statements during interrogation, but there’s arguments to be made, albeit not under Rule 16, for the disclosure of notes of interviews of non-defendant witnesses as well. They’re laid out nicely in the sample motion attached here, written by former Los Angeles Deputy Federal Public Defender Evan Jenness.

Evan’s motion makes several points that are worth keeping in mind. First, in at least some circumstances notes of a witness interview may be Jencks material that needs to be disclosed regardless of whether the notes reveal inconsistencies. Certainly they’re a statement of the agent who took the notes if he or she gets up and testifies about what the witness said. And they’re arguably a statement of the witness himself or herself if all – or at least part – of the notes come within the Rule 26.2(f)(2) and 18 U.S.C. § 3500(e)(2) definition of “statement” as including “a substantially verbatim, contemporaneously recorded recital” of what the witness said.

Second, the notes may be – or at least contain – either impeachment Brady (Giglio) material or substantive Brady material. They may contain things the later report and testimony doesn’t contain, which triggers cross examination bringing out that additional information, or not contain things the later report does contain, which triggers cross examination raising doubt about the thing included in the report and testimony but not the more contemporaneous notes. Evan’s motion – and her declaration attached to the motion – lay out some good reasons to think that inconsistencies in notes must be very common. Her thoughts resemble some of the suggestions in last week’s post about what to look for in government “e-communications” and the example of a prior draft with important information described in the post before that (see “A DOJ Acknowledgment of Discovery in the Brave New World of Computers,” and “Have You Thought About the Discovery that Word Processing Might Produce?” in the prior posts list in the right-hand column).

And, lastly, one common sense argument might be made to prosecutors and judges, similar to a common sense argument suggested in the post on notes of an interrogation of a defendant three weeks back. If the notes don’t have anything that’s not in the report already, then what’s the harm in disclosing purely duplicative material? And if the notes do have something that’s not in the report, there’s at least an argument that they’re Brady material that has to be disclosed anyway. Why not just err on the side of caution to make sure no Brady material is inadvertently withheld? Which has the additional benefit of saving the time which would otherwise have to be devoted to poring through the notes for inconsistencies?

Hey, prosecutors do believe in common sense, don’t they? Isn’t that what they’re always telling jurors to use?