Remind Them of Their Own Discovery Policies

June 2, 2015
By Hanging Out with Carl Gunn


  • A recent USA Today article collects discovery policy memos for most United States Attorney’s offices that USA Today obtained through FOIA.
  • The memos vary in detail, but most contain some helpful policies about discovery to be provided, including both reinforcement of rules and case law requiring discovery and suggestions of disclosure beyond what’s legally required.
  • Consider using these memos to persuade or pressure prosecutors to provide discovery they otherwise might not provide.



A couple of months ago, one of my colleagues here at the firm, Caitlin Weisberg, forwarded me a link to a USA Today newspaper article, linked here, that collects various local United States Attorney discovery policy memos that USA Today obtained through a FOIA request.  Coincidentally, one of our former Central District of California deputy federal public defenders, Evan Jennesss, put out an e-mail on our panel listserv last month with the same link and some extensive comments on several of the district memos, and for those of you on that listserv, I’d commend her e-mail to you.

I didn’t read all of the memos, but did read them for two of the districts I’ve practiced in – the Central District of California and the Western District of Washington.  The Central District of California memo, linked here, was a disappointingly general, short, 3-page document (though it referred to a “separate document” that provides “more detailed guidance”), but did have a few general points one could throw back at prosecutors.  Those included a quotation of the classic Supreme Court description of an AUSA as “the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all,” “whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done,” and who therefore “may strike hard blows [but] not . . . strike foul ones.”  Berger v. United States, 295 U.S. 78, 88 (1935).  The Central District memo also “encouraged” (why not “directed?” I asked) AUSA’s “to provide discovery beyond what the statutes, rules, and case law mandate” and noted that “[t]his broad approach to discovery is consistent with the Department of Justice’s policy regarding disclosure of exculpatory and impeachment information . . . ‘ . . . beyond that which is “material” to guilt as articulated in Kyles v. Whitley, 514 U.S. 419 (1995) and Strickler v. Greene, 527 U.S. 263, 280-81 (1999).’” (Quoting U.S. Attorney Manual § 9-5.001(C), (E).)

The Western District of Washington memo, in contrast, was a much more detailed, potentially helpful, 21-page memo.  You can read it in full here, but I thought I’d summarize some nuggets related to some issues discussed in some of the prior posts on this blog.

First, the Western District memo reiterates in some detail (at pages 4-5) the policy set forth in the U.S. Attorney’s Manual requiring disclosure of exculpatory and impeachment information “beyond that which is ‘material’ to guilt as articulated in Kyles v. Whitley, 514 U.S. 419 (1995), and Strickler v. Greene, 527 U.S. 263, 280-81 (1999).”  It specifically lists the four categories of information listed in the U.S. Attorney’s Manual (discussed in one of my prior posts, “An Update on a Not So Recent Discovery Post,” which can be found in the October 2014 link at the right), namely:

(1) “information that is inconsistent with any element of any crime charged against the defendant or that establishes a recognized affirmative defense, regardless of whether the prosecutor believes such information will make the difference between conviction and acquittal of the defendant for a charged crime”;

(2) any impeachment information that “either casts a substantial doubt upon the accuracy of any [prosecution] evidence . . . or might have a significant bearing on the admissibility of prosecution evidence,” again “regardless of whether it is likely to make the difference between conviction and acquittal”;

(3) disclosure of information in these categories “regardless of whether the information . . . would itself constitute admissible evidence”; and

(4) consideration of information cumulatively in evaluating information for these purposes rather than considering pieces of information in isolation.

Second, the Western District memo (at page 7) recognizes that e-mails and/or text messages written by agents and witnesses may contain discoverable information, an idea discussed in a prior post titled “A DOJ Acknowledgment of Discovery in the Brave New World of Computers,” which can be found in the May 2013 link at the right.  On the other hand, somewhat inconsistently with the title of the DOJ memo I discussed in that post – “Guidance on the Use, Preservation, and Disclosure of Electronic Communications in Federal Criminal Cases” (emphasis added) – the Western District memo suggests “encourag[ing] agents to take special care to avoid creating electronic communications (including e-mails and text messages) and voice mails containing information that may be subject to discovery.”

Third, and related to this last nugget, the Western District memo reminds prosecutors that information is discoverable even if it isn’t in written or electronic or some other physical form.  The memo states (at page 11) that “[p]rosecutors should also remember that with few exceptions (see, e.g., Fed. R. Crim. Pro. 16(a)(1)(B)(ii)), the format of the information does not determine whether it is discoverable” and gives the example of “material exculpatory information that the prosecutor receives during a conversation with an agent or a witness.”  Related to this, the memo notes (at pages 12-13) that prosecutors “should be particularly attuned to new or inconsistent information disclosed by a witness during a pre-trial witness preparation session” and that “some witness’ statements will vary during the course of an interview or investigation.”  (You don’t say!)  Then on another issue dear to my heart (see “Aren’t Notes a Written Record Too?” in the April 2013 link at the right), the Western District memo (also at page 13) recognizes that agent notes generated during an interview of the defendant may be discoverable under Federal Rule of Criminal Procedure 16(a)(1)(B), governing written records of defendant statements.

So there’s a few nuggets out of the Western District of Washington memo.  And there’s more in the full memo.  It may not, as the memo says in its first paragraph, “create or confer any rights, privileges, or benefits to prospective or actual witnesses or defendants” or “have the force of law,” but it certainly has some moral and persuasive force, especially when backed up with some of the authority discussed in some of the prior posts I mention above.