BLOG BULLETS:

• Preparation of reports by the government is different than preparation of reports by the defense, because the government has different obligations and interests.
• Different interests include the initial identification and discovery of crimes and suspects, and different obligations include the Brady disclosure obligation.
• Those differences make the government’s interests and duties to prepare reports different than the defense’s.

NOW THE BLOG:

If anyone with more of a prosecutorial bent was reading my post last week, he or she might have asked (1) how is it fair for defense investigators not to prepare reports, because law enforcement officers always prepare reports (but see the cases below) and/or (2) how would we feel if law enforcement adopted a policy of preparing reports only when they would likely need them for trial? There are at least three responses to this, all lying in the different duties and responsibilities of law enforcement agencies.

First, in most cases, especially at the beginning of the investigation, law enforcement agencies are not trying to prove the guilt of some particular person, but are trying to find out who committed a crime, or whether a crime was committed. The reason law enforcement agents write reports at this point is to record and document information necessary to accomplishing the latter goal. As an example, an FBI agent who interviews a bank teller who has just been robbed writes down all information about the description of the robber not because he is trying to develop a case against a particular individual, but because he is trying to get as much information as possible to help in catching the robber.

Second, law enforcement agencies are government agencies that have an affirmative record-keeping obligation. They make records of events for purposes other than their use in a particular case. They are doing more than assisting in the prosecution of a particular case.

Third, law enforcement agencies and the government, in contrast to defense attorneys, have a constitutional obligation to disclose and preserve evidence that is helpful to the other side. At least in a general sense, them not wanting us to know something is a sign it’s something they’re legally required to tell us – under the Brady rule. Documenting information in a complete report helps the government comply with this duty. Indeed, the Ninth Circuit in United States v. Bernard, 625 F.2d 854 (9th Cir. 1980) “emphatically disapprove[d]” of an agent’s failure to take notes of witness interviews because it suggested “a desire to deprive defendants of knowledge of any statements favorable to them.” Id. at 859-60. Similarly, the First Circuit said in United States v. Houlihan, 92 F.3d 1271 (1st Cir. 1996):

Eschewing tape recordings and ordering law enforcement agents not to take notes during pretrial interviews is risky business – and not guaranteed to redound either to the sovereign’s credit or to its benefit. By adopting a “what we don’t create can’t come back to haunt us” approach, prosecutors demean their primary mission: to see that justice is done. In more parochial terms, the government also loses the advantage of records that it may subsequently need to safeguard against witnesses changing their stories or to refresh recollections dimmed by the passage of time. By and large, the legitimate interests of law enforcement will be better served by using recording equipment and/or taking accurate notes than by playing hide-and-seek.

Id. at 1289. The first point made in this opinion focuses on duties of prosecutors and law enforcement agencies which defense attorneys and investigators do not have. The second point applies to the defense as well, but can be safeguarded by the attorney’s request for reports where he or she is likely to want them.

For all of these reasons, law enforcement officers interviewing witnesses are in a different position than defense investigators. Law enforcement officers hopefully won’t – and certainly shouldn’t – pick and choose when to write reports. Defense investigators – with the guidance of defense counsel – can and should.