BLOG BULLETS:

• The Jencks rule requiring disclosure of witness statements applies to the defense as well as the government.
• “Early Jencks” provided by the government is different than “early Jencks” provided by the defense, for multiple reasons.
• Defense attorneys should be very hesitant to provide Jencks material before the government rests.

NOW THE BLOG:

What does that title mean? I’ll get there in a paragraph or two, but first some background. Today’s post is about the disclosure of “reciprocal Jencks” material. We all know – or should know – that Rule 26.2 of the Federal Rules of Criminal Procedure places a disclosure obligation for witness statements on the defense that’s comparable to the obligation placed on the government, which was first codified in 18 U.S.C. § 3500 and is duplicated – and expanded to certain other proceedings – in Rule 26.2. The rule requires disclosure of any statement by a witness (other than the defendant) that is in the possession of the party calling the witness and “relates to the subject matter of the witness’s testimony.” Fed. R. Crim. Pro. 26.2(a). But the disclosure isn’t required until “[a]fter [the] witness . . . has testified on direct examination.” Fed. R. Crim. Pro. 26.2(a); see also 18 U.S.C. § 3500(a) (statement not subject to discovery “until said witness has testified on direct examination in the trial of the case”).

It is the practice of the government in our district, however – and in most districts, I believe (though I recall running into prosecutors in Fairbanks, Alaska and Arkansas who didn’t have this practice) – to disclose this “Jencks material” with the initial discovery. There are multiple good reasons for the government to do this, including (among others) its interest in showing the strength of its case so as to encourage settlement discussions and the guilty plea it desperately wants, its interest (we hope) in assuring the defendant has a fair opportunity to prepare and investigate and thereby have a fair trial, and its interest in an efficient and smooth trial process, which is less likely if the defense attorney has to keep asking for recesses when the defense attorney is handed a bundle of witness statements just as he or she is getting up to begin cross examination. This latter interest also leads many, if not most, judges to justifiably put pressure on the government to provide such early disclosure.

Because of this government practice, prosecutors will sometimes ask for reciprocity in the form of pretrial disclosure of Jencks material by the defense. They tell us that this is only fair, and that’s where my title for this post comes from. While they may not use these exact words, their argument at least suggests the old saying, “What’s sauce for the goose is sauce for the gander.”

What I want to suggest is that they’re getting better sauce than us if we give them the same early Jencks disclosure that they give us. The reason is that we’re giving up something that they don’t give up when we provide early disclosure. Because the defense goes second in the trial, the defense attorney has the advantage of cross examining the government witnesses without the witnesses or the government knowing what the defense witnesses will say. And the defense gives up that advantage – at least in large part – when it provides pretrial disclosure of Jencks material. The government doesn’t give that advantage up, though that’s admittedly because the government doesn’t have the advantage in the first place. Still, it’s getting something extra in its sauce that we don’t get.

There are also two additional reasons we shouldn’t commit to providing Jencks material early. The first is related to the fact just discussed about the defense going second in the trial. Depending on how the government’s case goes, we might decide not to call the witness in question. And we’ll never have to disclose the witness statement if we don’t call the witness. So trying to predict what our Jencks material will be and disclosing it early means we could end up disclosing something we’re not required to disclose.

Then there’s a second reason we might not need to disclose the witness statement. The government might call the witness as a government witness. And only the party calling the witness has a disclosure obligation under Rule 26.2. This actually once happened to a colleague of mine when he disclosed his Jencks material prior to trial. The government read one of the witness statements, decided it liked what it saw, and called the witness itself. This, first, made the witness seem damaging rather than helpful, and, second, meant my colleague had disclosed something he wouldn’t have been required to disclose. Perhaps the government wouldn’t have called the witness if it hadn’t been provided with the witness statement, but also perhaps my colleague would have changed his mind after hearing the government’s case and not called the witness either.

This last story also illustrates that there’s greater potential harm to the defense from mistaken disclosure. Early disclosure may lead to disclosure of information harmful to the defense case that the defense wouldn’t otherwise have been required to disclose. That harm isn’t done – or certainly is nowhere near as great – for the government, because information that’s harmful to the government’s case has to be disclosed anyway – under the Brady and Giglio doctrines. (See the posts I wrote on this back in June and July of 2012, through the links for those months at the right.) The only information the government might disclose that it wouldn’t be required to disclose anyway is information that helps it. And the government has other reasons to disclose that sort of information early – namely, its hope that showing the strength of its case may make the defendant more likely to plead guilty.

To sum up, think very carefully if a prosecutor says it’s only fair for you to disclose Jencks material early. First, you’re giving up more than they are; second, you might disclose something you ultimately wouldn’t have to disclose; and, third, the government has independent reasons to disclose early and doesn’t risk the sort of harm the defense risks from early disclosure.