DISCOVERY POLICY FOR CRIMINAL CASES UNITED STATES ATTORNEY’S OFFICE WESTERN DISTRICT OF TEXAS JOHN E. MURPHY UNITED STATES ATTORNEY The guidance contained in this policy is subject to legal precedent, court orders, and local rules. This policy prospective guidance only and is not intended to have the force of law or to create or confer any rights, privileges, or benefits. See United States v. Caceres, 440 U.S. 741 (1979). October 15, 2010 In accordance with the memorandum of the Deputy Attorney General dated January 4, 2010,1 this document sets forth the policy of the U.S. Attorney’s Office for the Western District of Texas governing discovery in criminal cases. Discovery rules governing criminal cases, including disclosure obligations under Rule 16, Fed.R.Crim.P., Brady v. Maryland, United States v. Giglio, 18 U.S.C. § 3500, Rule 26.2, Fed.R.Crim.P., and other authorities, are highly complex and no policy can be tailored to address all possible discovery issues. Every AUSA has an obligation to be familiar with the requirements of statutes, rules, court decisions, court orders, and Department of Justice policy. This policy is intended to set forth an office approach to discovery, generally, and to serve as a guide or checklist to satisfy the government’s discovery and other disclosure obligations.2 1 Available at: Requirement for Office Discovery Policies in Crm. Matters.PDF 2 Cases involving national security, including terrorism, espionage, counterintelligence, and export enforcement, can present unique and difficult criminal discovery issues. The Department of Justice has developed special guidance for those cases, which is contained in Acting Deputy Attorney General Gary G. Grindler’s September 29, 2010, memorandum, “Policy and Procedures Regarding the Government’s Duty To Search for Discoverable Information in the Possession of the Intelligence Community or Military in Criminal Investigations.” Prosecutors should consult that memorandum and their supervisors regarding discovery obligations relating to classified or other sensitive national security information. As a general rule, in those cases where the prosecutor, after conferring with other members of the prosecution team, has a specific reason to believe that one or more elements of the Intelligence Community (IC) possess discoverable material, he or she should consult NSD regarding whether to request a prudential search of the pertinent IC element(s). All prudential search requests and other discovery requests of the IC must be coordinated through NSD. Although discovery issues relating to classified information are most likely to arise in national security cases, they may also arise in a variety of other criminal cases, including narcotics cases, human trafficking cases, money laundering cases, and organized crime cases. In particular, it is important to determine whether the prosecutor, or another member of the prosecution team, has specific reason to believe that one or more elements of the IC possess discoverable material in the following kinds of criminal cases: Those targeting corrupt or fraudulent practices by middle or upper officials of a foreign government; Those involving alleged violations of the Arms Export Control Act or the International Emergency Economic Powers Act; Those involving trading with the enemy, international terrorism, or significant international narcotics trafficking, especially if they involve foreign government or October 15, 2010 2 As a matter of office policy, AUSAs must comply with applicable rules, statutes, caselaw, and court orders. In most cases, broad and early discovery is encouraged. But in all cases, AUSAs are expected to exercise professional judgment, tailoring and timing discovery to encourage prompt resolution of cases; promote efficient disposition of cases; minimize discovery disputes in the courts; ensure that all Brady and Giglio information is timely disclosed; and taking steps necessary (including seeking protective orders) to protect witnesses and victims and to maintain the integrity of the criminal process. While broad discovery is encouraged in most cases, the office does not have an “open file” practice. This term should be avoided so as not to inadvertently mislead defendants or the courts about the scope of discovery. In any case or circumstance in which there is a question about the timing or scope of discovery, including any case in which an AUSA seeks to deviate from this policy, he or she should consult with a supervisor. The purpose of this policy is to ensure consistent compliance and practice concerning discovery obligations. This policy does not create any rights or entitlements for defendants or others. military personnel; Other significant cases involving international suspects and targets; and Cases in which one or more targets are, or have previously been, associated with an intelligence agency. For these cases, or for any other case in which the prosecutors, case agents, or supervisors making actual decisions on an investigation or case have a specific reason to believe that an element of the IC possesses discoverable material, the prosecutor should consult with NSD regarding whether to make through NSD a request that the pertinent IC element conduct a prudential search. If neither the prosecutor, nor any other member of the prosecution team, has a reason to believe that an element of the IC possesses discoverable material, then a prudential search generally is not necessary. October 15, 2010 3 I. NOTICE In addition to the obligation to disclose information, documents, tangible objects, etc., several rules and other provisions require the Government to provide the defense with notice of intent to use certain evidence. At a minimum, notice should be provided in accordance with any court order. As a general practice, notice of intent to use evidence under Fed.R.Cr.P. 12(b)(4), or Fed.R.Evid. 404(b) should be provided as soon as practical after arraignment. A. Rule 12(b)(4), Fed.R.Cr.P., Notice AUSAs should provide written notice of intent to use evidence that might be the subject of a motion to suppress in all appropriate cases as soon as practical after arraignment, but should be within the limits imposed by applicable court order. (In San Antonio and Del Rio, routine discovery orders require notice 20 days after arraignment.) B. Rule 404(b), Fed.R.Evid. AUSAs should provide notice of intent to use 404(b) evidence as soon as practical after arraignment, but in no event later than the limits imposed by the various court orders, absent good cause. (The standard discovery order in San Antonio requires that Rule 404(b) notice be given 15 days before the last scheduled trial date; Del Rio requires notice 10 days before trial begins; the order for Midland and Pecos requires disclosure upon request by the defendant). C. Rule 807, Fed.R.Evid. The required notice under the residual hearsay exception should be provided as soon as practical after arraignment, and generally, should be provided at least 5 days before trial. D. Notice of Involvement of Confidential Informants As a general policy, this office does not reveal the identity of non-testifying confidential informants unless ordered to do so by the court, and concurred in by the agency that made the promise of confidentiality to the informant. II. RULE 16 DISCOVERY A. Timing of Disclosure Rule 16 requires the Government to produce for inspection and copying specific categories of information “upon a defendant’s request.” The District Courts routinely order or expect the Government to produce Rule 16 information without a specific request by the defendant. Because few defendants produce anything meaningful as reciprocal discovery, and because the courts expect October 15, 2010 4 us to disclose information in all cases, the office will produce Rule 16 materials without request in accordance with the applicable order of the District Court. In most cases, this means Rule 16 materials available to the prosecutor will be produced or offered to the defense 14 to 20 days after arraignment. If no order is entered, and if the court has no standing practice, Rule 16 materials should be offered to the defense within 20 days of arraignment. B. Continuing Obligation The duty to disclose Rule 16 material is a continuing one. AUSAs should tender additional Rule 16 material to the defense “promptly” after it is discovered or obtained, ordinarily within 5 working days. C. Protective Orders If, for any reason an AUSA believes that specific material falling within Rule 16 should not be disclosed to the defendant, the AUSA should file a motion for a protective order with the court at the time Rule 16 disclosure should be made, or the material is later obtained. The motion should be filed ex parte, in camera under seal. The proposed order should seek appropriate relief, which may include delaying disclosure until a time closer to trial, authorizing redaction of sensitive information, limiting the use and any subsequent copying and disclosure of the material to the persons necessary to prepare and present the defense, requiring the return of the information upon the completion of the prosecution, and requiring that any submission of the material in a proceeding be done under seal or only with the prior approval of the court. D. Rule 16 Material subject to disclosure 1. Defendant’s Statements a. Defendant’s Oral Statements: This includes: The substance of an oral statement of the defendant that is Relevant, Was made in response to interrogation, By a person the defendant knew was government agent, and Which the Government intends to use at trial. b. Defendant’s Written or Recorded Statements: This includes: Any written or recorded statement made by the defendant that is Relevant, That is within Government’s possession, control or custody, or that The Government attorney knows or could know that the statement exists. c. Portion of Written Record of Substance of Defendant’s Oral October 15, 2010 5 Statement.