Tunnel Vision Interferes with Duty to Comply with Discovery Obligations


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


Most litigation in federal criminal cases regarding discovery of evidence, or lack thereof, is based on claims of violations of due process protections found in the Fifth and Fourteenth Amendments of the Constitution.  These constitutional protections create duties upon the government to disclose to the defendant certain types of evidence that is favorable to the accused because it either questions the defendant’s guilt, exculpatory evidence, or is useful in impeaching a government witness.


There are, however, three federal statutes that create additional duties to disclose certain evidence.  Rule 12.1, 16 and 26.2 of the Federal Rules of Criminal Procedure governs “discovery and inspection” in criminal cases. The more often cited Rule 16 specifically provides:


(a) Government’s Disclosure.
(1) Information Subject to Disclosure.


(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.


(B) Defendant’s Written or Recorded Statement. Upon a defendant’s request, the government must disclose to the defendant and make available for inspection, copying, or photographing, all of the following:


(i) any relevant written or recorded statement by the defendant if: the statement is within the government’s possession, custody, or control; and the attorney for the government knows—or through due diligence could know—that the statement exists;
(ii) the portion of any written record containing the substance of any relevant oral statement made before or after if the defendant made the statement in response to interrogation by a person the defendant knew was government agent; and
(iii) the defendant’s recorded testimony before a grand jury relating to the charged offense.


(C) Organizational Defendant. Upon a defendant’s request, if the defendant is an organization, the government must disclose any statement described in Rule 16(a) (1) (A) and (B) if the government contends the person making the statement:


(i) was legally able to find the defendant regarding the subject of the statement because of that person’s position as the defendant’s director, officer, employee, or agent; or
(ii) was personally involved in the alleged conduct constituting the offense and was legally able to bind the defendant regarding that conduct because of that person’s position as the defendant’s director, officer, employee, or agent.

(D) Defendant’s Prior Record. Upon a defendant’s request, the government must furnish the defendant with a copy of the defendant’s prior criminal record that is within the government’s possession, custody, or control if the attorney for the government knows—or through diligence could know—that the record exists.


(E) Documents and Objects. Upon a defendant’s request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government’s possession, custody, or control and:


(i) the item is material to preparing the defense;
(ii) the government intends to use the item in its case-in-chief at trial; or
(iii) the item was obtained from or belongs to the defendant.


(F) Reports of Examinations and Tests. Upon a defendant’s request, the government must permit a defendant to inspect and copy or photograph the results or reports of any physical or mental examination and of any scientific test or experiment if:

(i) the item is within the government’s possession, custody, or control;
(ii) the attorney for the government knows—or through due diligence could know—that the item exists; and
(iii) the item is material to preparing the defense or the government intends to use the item in its case-in-chief at trial.


(G) Expert witnesses. At the defendant’s request, the government must give to the defendant a written summary of any testimony the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial. If the government requests discovery under subdivision (b) (1) (C) (ii) and the defendant complies, the government must, at the defendant’s request, give to the defendant a written summary of testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial on the issue of the defendant’s mental condition. The summary provided under this subparagraph must describe the witness’s opinions, the bases [sic] and reasons for those opinions, and the witness’s qualifications.


(2) Information Not Subject to Disclosure. Except as Rule 16(a)(1) provides otherwise, this rule does no authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government connections 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.


(3) Grand Jury Transcript. This rule does not apply to the discovery or inspection of a grand jury’s recorded proceedings, except as provided in Rules 6, 12(h), 16(a)(1), and 26.2.

The key word in this legal doublespeak is “material.” Its origin lies in the well-known 1963 Supreme Court decision Brady v. Maryland, which held that a prosecutor under the Fifth and Fourteenth amendments has a duty to disclose favorable evidence to defendants upon request, if the evidence is “material” to either guilt or punishment. Two decades later the Supreme Court in United States v. Bagley refined Brady by holding that a prosecutor’s duty to disclose material favorable evidence exists regardless of whether the defendant makes a specific request. The significant difference between Brady/Bagley and Rule 16 (and its cousin Rule 26.2) is the language “upon defendant’s request.”


Bagley, which trumps Rule 16 AND 26.2, eliminated the “upon defendant’s request,” although it remains standard “practice” in federal cases for defense attorneys to submit a “letter” to the Government requesting discovery shortly after indictment. This practice is in compliance with “standing orders” in federal district courts requiring the Government to comply with defense discovery requests.


The flaw in this practice is that it permits Assistant U.S. Attorneys (as well as state prosecutors) to determine on their own what evidence may or may not be “material” and, thus, subject to disclosure. The Bagley court defined “material favorable evidence” as any evidence which probably would have changed the outcome of the trial. From a pure constitutional perspective, that is all that is required of federal and state prosecutors to fulfill their discovery obligations.


Evidence that may assist the defendant in preparing a defense is not subject to disclosure if the prosecutor determines it is not material. This prosecutorial disclosure process was given additional constitutional cover by the Supreme Court in 1999 in Strickler v. Greene, which held that a Brady violation occurs when: (1) evidence is favorable to exculpation or impeachment; (2) the evidence is either willfully or inadvertently withheld by the prosecution; and (3) the withholding of the evidence is prejudicial to the defendant.


Thus, a prosecutor knows that his/her decision to withhold evidence, even if it is “material favorable evidence,” is subject to reversal in the post-conviction setting only if it is “prejudicial” to the defendant. That gives prosecutors a lot of “wiggle room” in the Rule 16 and 26.2 decision-making process. And, as a consequence, the knowing suppression/withholding of favorable material evidence has become a constitutional cancer in our legal system which has wrongfully convicted thousands of innocent people—and in many of those cases federal and state prosecutors knew it was likely that the defendant was innocent of the crime charged.


The Supreme Court in 2009 indicated in Cone v. Bell that it was aware of the cancer Strickler had produced. The court observed, without specifically holding, that a prosecutor’s pre-trial obligations to disclose favorable or impeaching evidence, either to guilt or punishment, “may arise more broadly under a prosecutor’s ethical or statutory obligations” than required by the Brady/Bagley post-conviction “materiality” standard of review. The Cone court distinguished the post-conviction setting where the reviewing court must make a constitutional determination of whether the withheld evidence is material to the prosecutor’s pre-trial broader ethical obligations to disclose, which requires a “prudent prosecutor [to] err on the side of transparency, resolving doubtful questions in favor of disclosure.”


The question of whether a prosecutor’s pre-trial ethical obligation to disclose, grounded in Rule 3.8(d) of the ABA’s Model Rules of Professional Conduct, trumps the post-conviction “materiality” analysis required by Brady/Begley was presented before the U.S. Supreme Court in the case of Smith v. Cain. In an amicus curiae brief, the ABA is urging the Court to follow its own lead in Cone v. Bell:


“By requiring prosecutors to disclose more than material exculpatory evidence, the ABA Model Rules seek to avoid pitfalls that might arise if a prosecutor attempts to determine materiality before making a disclosure. As commentators have highlighted, assessing materiality pre-trial requires prosecutors to ‘anticipate what the other evidence against the defendant will be by the end of trial, and then speculate in hypothetical hindsight whether the evidence at issue would place the whole case in a different light’ … In addition, ‘compared to a neutral decision maker, the prosecutor will overestimate the strength of the government’s case against the defendant and underestimate the potential exculpatory value of the evidence whose disclosure is at issue.


As a consequence, the prosecutor will fail to see materiality where in fact it might exist ‘ … ‘Tunnel vision has had an obvious impact in the pretrial stage: having formed an initial judgment that a particular defendant is guilty of a crime, prosecutors and police will tend to discredit or discount the significance of new exculpatory evidence or fit it into their preexisting theory.’”


This raises the interesting question at the federal level: what are the duties of U.S. Attorneys to disclose under Rule 16 and 26.2?


On January 4, 2010, then Deputy Attorney General David W. Ogden issued a “memorandum” for U.S. Justice Department prosecutors titled “Guidance for Prosecutors Regarding Criminal Discovery,” more commonly known as the “Ogden Memo” (Memo). This Memo was developed “by a working group of experienced attorneys with expertise regarding criminal discovery issues that included attorneys from the Office of the Deputy Attorney General, the United States Attorneys’ Office, the Criminal Division, and the National Security Division.”


The Memo details a four-step process federal prosecutors must utilize to fulfill their discovery requirements under Rule 16 and 26.2 as well as under the Jencks Act. The steps are:


Step 1: Gathering and Reviewing Discoverable Information


Step 1 is cordoned off into two subsections: Where to look and what to review. At the onset prosecutors are reminded that Justice Department policy provides: “It is the obligation of federal prosecutors, in preparing for trial, to seek all exculpatory and impeachment information from all members of the prosecution team. Members of the prosecution team include federal, state, and local law enforcement officers and other government officials participating in the investigation and prosecution of the criminal case against the defendant.”


The Memo instructs that a determination of whether to review “potentially discoverable information” can be difficult, especially in cases involving multi-district investigations that include U.S. attorneys from different district and other prosecutors from the different sections of the Department. The difficulty is enhanced when a case involves parallel criminal and civil investigations, sometimes requiring prosecutors to redefine the parameters of disclosure in order to “fit the circumstances” of each case. There are also complex cases involving investigations with other government agencies, such as the SEC, FDIC, or EPA in which the prosecutor must determine “whether the relationship with the other agency is close enough to make it part of the prosecution team for discovery purposes.” This determination should be based on consideration of the following factors:


A) Whether the prosecutor and the agency conducted a joint investigation or shared resources related to the investigation of the case;
B) Whether the agency played an active role in the prosecution, including conducting arrests or searches, interviewing witnesses, developing prosecutorial strategy, participating in targeting discussions, or otherwise acting as part of the prosecution team;
C) Whether the prosecutor knows of and has access to discoverable information held by the agency;
D) Whether the prosecutor has obtained other information and/or evidence from the agency;
E) The degree to which information gathered by the prosecutor has been shared with the agency;
F) Whether a member of an agency had been made a Special Assistant United States Attorney;
G) The degree to which decisions have been made jointly regarding civil, criminal, or administrative charges; and
H) The degree to which the interests of the parties in parallel proceedings diverge such that information gathered by one party is not relevant to the other party.


Quite often these kinds of multi-district, multi-agency investigations involve federal “task forces” or state law enforcement agencies. In these cases, prosecutors should consider:


1) Whether state or local agents are working on behalf of the prosecutor or are under the prosecutor’s control;
2) The extent to which state and federal governments are part of a team, are participating in a joint investigation, or are sharing resources; and
3) Whether the prosecutor has ready access to the evidence.


This is a broad ocean of information federal prosecutors must navigate to locate potentially reviewable evidence upon which a “materiality” determination can be made. The Memo encourages prosecutors “err on the side of inclusiveness” with “carefully considered efforts to locate discoverable information” in order to “avoid future [Brady] litigation” and to “avoid surprises at trial.”


The Memo further instructs that in order to satisfy the “what to review” and timely disclosures requirements, prosecutors should review “all potentially discoverable material within the custody and control of the prosecution.” This “review process” should include the following areas:


1) The investigative agency files;
2) Confidential informant (CI)/witness (CW)/Human Source (CHS)/Source (CS) files;
3) Evidence and information gathered during the investigation;
4) Documents or evidence gathered by civil attorneys and/or regulatory agency in parallel civil investigations;
5) Substantive case-related communications;
6) Potential Giglio [v. United States] information relating to law enforcement witnesses;
7) Potential Giglio information relating to non-law enforcement witnesses and Fed.R.Evid. 806 declarants; and
8) Information obtained during witness interviews, including variations in witness statements; trial preparation meetings with witnesses; and agent notes.


The Memo describes the “Giglio information” cited in areas seven and eight as follows:

a) Prior inconsistent statements, which may include “inconsistent attorney proffers.”
b) Statements or reports reflecting variations in a witness’s statements.
c) Benefits provided to witnesses which includes but it not limited to: dropped or reduced charges; immunity; expectations of downward departures or motions for reduction of sentence; assistance in a state or local criminal proceeding; considerations regarding forfeiture of assets; stays of deportation or other immigration status considerations; S-Visas; monetary benefits; non-prosecution agreements; letters to other law enforcement officials, such as state prosecutors or parole boards, setting forth the extent of a witness’s assistance or making substantive recommendations on the witness’s behalf; relocation assistance; and/or consideration or benefits to culpable or at risk third parties.
d) Other known conditions that could affect a witness’s bias, such as: animosity toward the defendant; animosity toward a group of which the defendant is a member or with which the defendant is affiliated; relationship with victim; and/or known but uncharged criminal conduct.
e) Prior acts under Fed.R.Evid. 608.
f) Prior convictions under Fed.R.Evid. 609.
g) Known substance abuse or mental health issues or other issues that could affect the witness’s ability to perceive and recall events.

Step 2: Conducting the Review


The Memo provides that after prosecutors have gathered the above cited information, they must “ensure that the information is reviewed to identify discoverable information.” While the Memo suggests the information should be reviewed by the prosecutor in charge of the case, such is “not always feasible or necessary.” Thus, the prosecutor in charge “should develop a process for review of pertinent information to ensure that discoverable information is identified. Because the responsibility for compliance with discovery obligation rests with the prosecutor, the prosecutor’s decision about how to conduct this review is controlling. This process may involve agents, paralegals, agency counsel, and computerized searches. Although prosecutors may delegate the process and set forth criteria for identifying potentially discoverable information, prosecutors should not delegate the disclosure determination itself.”


3. Making the Disclosures


There are five statutory and case law sources outlining the Justice Department’s “obligations” to disclose either favorable or impeachment evidence: Fed.R.Crim.P. 16 and 26.2, the Jencks Act [18 U.S.C. § 3500], Brady, and Giglio. The Memo states that the Justice Department’s disclosure policy regarding exculpatory or impeachment evidence is “broader” than the disclosure obligations mandated by these five sources. The Memo added that prosecutors “are also encouraged to provide discovery broader and more comprehensive than discovery obligations” mandated by these five sources. However, if a prosecutor elects to strictly follow the “broader” Department discovery policy, he/she should advise the defense that “the prosecutor is electing to produce discovery beyond what is required under the circumstances of the case but is not committing to any discovery obligation” beyond the obligations set forth above.


The “broader” Department discovery policy, according to the Memo, “promotes the truth-seeking mission of the Department and fosters a speedy resolution of many cases. It is also provides a margin of error in case the prosecutor’s good faith determination of the scope of appropriate discovery is in error.”


4. Making a Record


The Memo is quite clear and concise about this step: “One of the most important steps in the discovery process is keeping good records regarding disclosures. Prosecutors should make a record of when and how information is disclosed or otherwise made available. While discovery matters are often subject to litigation in criminal cases, keeping a record of the disclosures confines the litigation to substantive matters and avoids time-consuming disputes about what was disclosed. These records can also be critical when responding to petitions for post-conviction relief, which are often filed long after the trial of the case. Keeping accurate records of the evidence disclosed is no less important than the other steps discussed above, and poor records can negate all of the work that went into taking the first three steps.”


Last year we posted a piece about prosecutorial misconduct among federal prosecutors. We cited a report by USA Today that during a six-month investigation the newspaper documented 201 cases since 1997 in which federal judges had determined U.S. attorneys, “the nation’s most elite and powerful law enforcement officials,” either violated the law or ethical rules in the prosecution of cases. One case concerned Orlando, Florida businessman named Nino Lyons who spent three years in prison because federal prosecutors withheld exculpatory evidence from the defense.

“… the prosecutors covered up evidence that could have discredited many of Lyons’ accusers,” USA Today reported. “They never revealed that a convict who claimed to have purchased hundreds of pounds of cocaine from Lyons struggled even to identify his photograph. And they hid the fact that prosecutors had promised to let others out of prison early in exchange for their cooperation.”


The Ogden Discovery Memo has now been in place for two years. We do not know to what extent the Memo has curbed misconduct among federal prosecutors. We believe it has curtailed some of the more serious misconduct, but, sadly, we know there are a significant number of other U.S. attorneys still walking into courtrooms, swearing to the high heavens with straight faces that they have fulfilled their “discovery obligations” while their briefcases and files are contain potentially “material” favorable evidence.


NOTE: The U.S. Supreme Court on January 10, 2012 decided Smith v. Cain. While the court reversed the conviction, it did not address the pre-trial ethical obligations required under Model Rule 3.8(d) so aggressively urged by the ABA. In fact, there was not a single mention of the Model Rule 3.8(d) requirement. The reversal was based purely on the Brady post-conviction analysis. We will discuss Smith v. Cain in greater depth in our next post.


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified by the Texas Board of Legal Specialization