By Sara Kropf
The government usually turns over interview memos, or FBI 302s, during discovery in a criminal case.
As I’ve written before, a 302 is a summary of a witness interview written by an FBI agent. It is in narrative form, sometimes has quotes in it (but more often does not). The witness does not get to review or correct it before it is finalized.
When you are preparing for trial in a criminal case, reviewing the statements made by potential witnesses for the government is absolutely critical. They are the best roadmap to understand how the government will prove its case at trial. They are also a way to learn about potentially helpful witnesses.
If the government resists turning over 302s in discovery, what are the possible avenues to force it to do so? There are three of them.
Keep in mind that all of these avenues exist only after indictment. Your client doesn’t have a right to see 302s before then, such as when you are negotiating a plea deal or trying to convince the government not to indict.
Are They Jencks?
The Jencks Act (18 U.S.C. § 3500) requires the government to turn over “statements” by any witness who testifies in a criminal trial. Technically, the statute requires this disclosure only after the “witness has testified on direct examination in the trial of the case.”
The statute very specifically defines what is a “statement.”
(e) The term “statement,” as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States, means—
(1) a written statement made by said witness and signed or otherwise adopted or approved by him;
(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or
(3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.
Because witnesses do not get to review or adopt 302s, witnesses do not sign, adopt or approve them. They are also not a “transcription” or a “substantially verbatim recital of an oral statement,” and they are not grand jury testimony.
The circuit courts have generally held that 302s are not Jencks. For example:
United States v. Price, 542 F.3d 617, 621 (8th Cir. 2008) (holding that absent evidence that the witnesses “approved or adopted” the FBI 302s, “these documents are not discoverable under . . . the Jencks Act”)
United States v. Jordan, 316 F.3d 1215, 1255 (11th Cir. 2003) (holding that FBI 302s “are not Jencks Act statements of the witness unless they are substantially verbatim and were contemporaneously recorded, or were signed or otherwise ratified by the witness”)
United States v. Donato, 99 F.3d 426, 433 (D.C. Cir. 1996) (“[T]he agent’s notes and 302 report . . . are not covered by the Jencks Act.”)
United States v. Roseboro, 87 F.3d 642, 646 (4th Cir. 1996) (“[T]he district court’s finding that the FBI 302 Report was not a Jencks Act statement is not clearly erroneous.”)
Are they Rule 16 Discovery?
Rule 16 requires disclosure of a 302 of a defendant. Rule 16(a)(1)(A) says:
(A) Defendant’s Oral Statement. Upon a defendant’s request, the government must disclose to the defendant the substance of any relevant oral statement made by the defendant, before or after arrest, in response to interrogation by a person the defendant knew was a government agent if the government intends to use the statement at trial.
You may think that Rule 16(a)(1)(E) requires disclosure of 302s since it mandates that the government turn over documents that are “material to preparing the defense” and clearly knowing what other witnesses will say at trial fits this category.
But don’t get your hopes up. Rule 16(a)(2) provides
(2) Information Not Subject to Disclosure. Except as permitted by Rule 16(a)(1)(A)-(D), (F), and (G), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case. Nor does this rule authorize the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. 3500.
So, except for a 302 of a defendant, Rule 16 is not helpful.
Are They Brady?
A prosecutor must turn over exculpatory evidence to the defense, or risk violating Brady v. Maryland. If a 302 contains exculpatory statements by a witness, then it falls under Brady and must be disclosed.
In theory, a prosecutor could review all of the 302s, perhaps even redact the non-Brady material, and disclose the portions that are plainly exculpatory. But that risks making a mistake and a later claim of prosecutorial misconduct and reversal of convictions, if the defense finds out what the witness said during the interview by other means.
Some U.S. Attorney’s Offices have policies about turning over 302s as Brady material. For example, the District of Maryland’s Criminal Discovery Policy says:
AUSAs are encouraged to review all 302s and agent notes thoroughly, first to see if they contain Brady, and ultimately to determine whether, absent threats to witness safety, national security, or an ongoing criminal investigation, turning over the 302s will promote the just and expeditious resolution of the case.
The safest bet for a prosecutor, then, is to turn over 302s as Brady material. And most of them follow this route. A good prosecutor, with a strong case, isn’t afraid to turn them over.
What To Do?
You should always send the government a discovery letter that demands disclosure under Rule 16, Jencks, and Brady. You can include in the letter a specific request for 302s and cite any discovery policy in your district as well. And if the government pushes back, you can always ask the court for relief.
There’s a whole other issue with respect to using 302s to question or impeach a witness. That’s a topic for another post.