I’ve written before about the serious problem of prosecutors not disclosing Brady material to a defendant. (See here and here. Oh, and here too.) Failure to turn over exculpatory evidence is a serious constitutional violation. It’s also incredibly difficult for a defendant to discover. After all, how can you know that the prosecutor did not turn over exculpatory evidence when you do not know what is in the prosecutor’s files?
Today I’m going to consider a potentially more pernicious Brady issue: the near-limitless ability of the government to avoid creating discoverable exculpatory evidence in the first place. If there is no exculpatory evidence in the prosecutor’s files, then there’s no evidence to disclose under Brady.
This post is Part 1 of a two-part series. Full disclosure: I do multi-part posts when I get overexcited about a topic and write too much to publish at one time. I’m a little fired up about this one. I’m hopeful someone will comment about why I’m wrong, why this can’t happen, why DOJ has rules or policies or procedures in place to make sure it doesn’t happen.
A Real-Life Example
Once upon a time, I was representing a witness in a criminal investigation. We were sitting in a drab DOJ conference room, and the FBI agent was diligently taking notes as my client answered the prosecutor’s questions. Then, one of my client’s answers surprised the AUSA; it wasn’t helpful to the case. It was helpful to the target of the investigation. The prosecutor asked it again, in a different way. Same answer. Still not helpful to the government.
Then something odd happened. The FBI agent stopped writing.
We moved on to a new topic. My client’s answers on the new topic helped the government’s case. Lo and behold, the agent started writing again.
Now, I never saw the FBI-302 for that witness interview, so I have no idea what parts of my client’s answers made it into – or did not make it into – that memo. If I were a betting person, though, I’d wager that my client’s answers that contradicted the government’s theory of the case did not make their way into the agent’s handwritten notes or the formal memo of the witness interview. (If you want to read more about 302s generally, check out my earlier post.) The prosecutor’s files would then contain no written record of the exculpatory things that my client said during the interview.
Avoiding Brady Disclosures in the Two Primary Types of Trial Evidence
There are two main categories of evidence at trial: documents and witness testimony. The government has incredible leeway to avoid obtaining exculpatory material for both categories.
Documents (Don’t Serve a Subpoena)
If the government believes that documents held by a third party (say, a bank or the defendant’s employer) may be exculpatory, it can simply choose not to serve a grand jury subpoena to obtain those documents. Then, the documents are never in the prosecutor’s files, and there is no obligation to provide them to the defense.
Since the defense has minimal power to subpoena documents itself through Rule 17(c) subpoenas and the government would fight such a subpoena seeking this exculpatory evidence as a “fishing expedition,” the government’s choice not to subpoena these documents means that the defense will not see them.
That said, because the party on whom the grand jury serves a subpoena usually does not “preview” them for the government, the government does not know whether the documents contain exculpatory material or not until they have been reviewed by the case agents. At that point, the documents must be disclosed under Brady.
Witness Interviews (Don’t Write It Down)
Witness interviews are a whole different animal. During the interview, the agents or prosecutor will ask questions and an agent will take notes. The agent then turns the notes into the 302. The agent has a chance to hear the answer to the question before she writes down the response. Neither the defendant nor the defense counsel is present in the interview by the government. No one is monitoring what an agent is writing down or not writing down.
The agent has complete discretion about what to write down from the interview. The agent also has discretion about what to take from her notes to include in the 302. Often, only one agent is taking notes, and the prosecutor is not taking notes since she is usually the one focused on asking questions. The prosecutor may not review the 302 until weeks or months after the interview. The 302 becomes the “official record” of what was said, with very little required contemporaneous oversight.
I’ll readily admit that most agents seem to take notes about everything that is said during the interview. It’s rare that I see an agent stop taking notes during a key part of the interview, as in my example above. Conscientious agents will draft their 302s in a few days, and conscientious prosecutors will review and correct the 302s to make sure that they are accurate and complete.
Are 302s Disclosed to the Defense?
What happens to the 302 during the lead up to trial? Let’s use my case as an example.
If that case proceeded to trial and the government decided not to call my client as a witness, then the defendant would likely never see a copy of that 302 at all. The Jencks Act (18 U.S.C. § 3500) requires the government to disclose a “statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant)” after the witness testifies at trial. (Some USAOs provide them before trial and some judges require disclosure pre-trial as well.)
The only time the defendant would be entitled to a copy of the 302 for a non-testifying witness is when the 302 contains Brady material. You can see where I’m going, right? If the agent didn’t write down the exculpatory statements in her notes or didn’t include them in the 302, then the prosecutor would not have to turn over the 302—ever. It doesn’t have anything exculpatory in it.
If that case proceeded to trial and the government decided to call my client as a witness, then the defense may receive a copy of the 302. Technically, there is no legal obligation to disclose 302s in discovery, as they are covered by neither Jencks nor Rule 16. I’ve written a whole post about that here. Some U.S. Attorney’s Offices have a practice—and maybe a policy—about handing over the 302s in a case. Some, however, do not.
What About Grand Jury Testimony? And What About the Agent’s Handwritten Notes?
Grand jury testimony falls under Jencks and Rule 16, so the government must disclose it for trial witnesses.
Handwritten notes are different. They are definitely not Jencks material, as they are not statements or reports made by a witness. In theory, the prosecutor should review the agents’ handwritten notes from the interview (or ask the agent to review them) to determine if there is Brady material to disclose. If the handwritten notes contain that material, then the prosecutor must turn them over.
In real life, I’ve only received handwritten notes in discovery a few times. When I’ve asked for them in other cases, I’ve been told, “nope.” Good luck convincing a court to force the prosecutor to turn them over without a specific showing that something helpful to the defense is in there. If the agent created a 302, then the court will often say that disclosure of the 302 is sufficient, unless you can make a specific showing that the government excluded something from the 302.
Is this a Widespread Problem?
Does it really matter if it is widespread or not? It’s a problem with profound consequences. Brady material is often the only chance a defendant has to prevail at trial—since the defense has minimal power to subpoena documents and since witnesses are often hesitant to speak to the defense. Plus, the failure to disclose Brady material is one of the few ways that a conviction can be reversed. That’s how important it is.
Now, I have no idea how widespread the problem is. There’s no way to track how often it happens. Heck, I can’t even tell you for certain if my client’s exculpatory statements went off into the ether or made it into the 302.
Even if I’ve personally only seen an agent stop taking notes during the exculpatory part of an interview once or twice, most white-collar criminal defense lawyers I know could tell you that they have seen it happen. It’s not a complete anomaly.
That means it’s a problem. Any time the government can abuse the system to deny a defendant his constitutional rights (Brady is grounded in constitutional due process rights), it is a problem.
My next post will cover the relative lack of guidance about what must be recorded during a witness interview. Without strong rules in place, you can see how it would be easy for a rogue prosecutor or agent to abuse the system.
[…] few years ago, I wrote about how the Department of Justice can avoid creating disclosable Brady material by not documenting […]