Using Statements of Government Witnesses to Impeach Testimony
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
There are five primary sources outlining the obligations of U.S. Attorneys to disclose either favorable or impeachment evidence: Federal Rules of Criminal Procedure,16 and 26.2, the Jencks Act [18 U.S.C. § 3500], Brady v. Maryland, and Giglio v. United States. Of these, Jencks is probably the most controversial and certainly the least useful. Jencks, named after Clinton Jencks, was a product of the “Red Scare” and McCarthyism in the 1950s. The Act was the bastard-child of Congress in 1957 following a controversial decision by the U.S. Supreme that same year reversing Clinton Jencks’ conviction for lying about being a member of the Communist Party of the United States. That’s right, folks. There was a time in America’s uncelebrated history when a person could be investigated, convicted and imprisoned for being a “communist”—much like the “Green Scare” of the present time where Muslims are under similar fear based prejudice and unnecessary pressure from law enforcement.
Born in Colorado Springs in 1918, Clifton Jencks was a labor organizer in New Mexico in 1954—one year after Julius and Ethel Rosenberg were executed in New York’s infamous Sing Sing Prison (the Feds did not have an electric chair) on June 19, 1953 for passing secrets about the atomic bomb to the Soviet Union. Fifty years after the execution the New York Times reported that “the Rosenberg case still haunts American history, reminding us of the injustice that can be done when a nation gets caught up in hysteria.” As president of a local affiliation of the International Union of Mine, Mine & Smelter Workers, Jencks was required to file an “Affidavit of Non-Communist Union Officer” with the National Labor Relations Board pursuant to the National Labor Relations Act. Following an investigation by the FBI, then led by famed communism fighter J. Edgar Hoover, Jencks was indicted on two counts of lying in his affidavit. His subsequent trial was conducted in the Western District of Texas.
During Jencks’ trial, FBI agents testified that Harvey Matusow and J.W. Ford informed them that they and Jencks were members of the Communist Party of New Mexico. The two men became paid informants for the law enforcement agency. Jencks filed a motion prior to trial requesting that the court direct the Government to produce the written reports prepared by the FBI so they could be used in cross-examining the two informants. The court denied the motion. Jencks appealed the denial to the Fifth Circuit Court of Appeals which upheld the trial court’s ruling. Jencks then sought, and secured, certiorari review before the U.S. Supreme Court after which the high court reversed his conviction. The court explained why the reports by the two paid communist informants were critical to Jencks:
“Former Party members testified that they and the petitioner, as members of the Communist Party of New Mexico, had been expressly instructed to conceal their membership and not to carry membership cards. They also testified that the Party kept no membership records or minutes of membership meetings, and that such meetings were secretly arranged and clandestinely held. One of the witnesses said that special care was taken to conceal the Party membership of members, like the petitioner, ‘occupying strategic and important positions in labor unions and other organizations where public knowledge of their membership to non-Communists would jeopardize their position in the organization.’ Accordingly, the Government did not attempt to prove the petitioner’s alleged membership in the Communist Party on April 28, 1950, with any direct admissions by the petitioner of membership, by proof of his compliance with Party membership requirements, or that his name appeared upon a membership roster, or that he carried a membership card.
“The evidence relied upon by the Government was entirely circumstantial. It consisted of testimony of conduct of the petitioner from early 1946 through October 15, 1949, and of Matusow’s testimony concerning alleged conversations between him and the petitioner at a vacation ranch in July or August 1950, and concerning a lecture delivered by the petitioner at the ranch. The Government also attached probative weight to the action of the petitioner in executing and filing an Affidavit of Non-Communist Union Officer on October 15, 1949, because of the events surrounding the filing of that affidavit. The Government bridged the gap between October 15, 1949, and July or August 1950 with the testimony of Ford that, during that period, the Party took no disciplinary action against the petitioner for defection or deviation, and did not replace the petitioner in the Party office which Ford testified the petitioner held as a member of the Party State Board.”
The central issue before the Supreme Court was the trial court’s ruling, made at the behest of the Government, that Jencks had not laid a “preliminary foundation” that the statements the two informants made to the FBI and their trial testimony were inconsistent. Straight out of the legal chute, the high court held that Jencks was not required to lay a “preliminary foundation” in order to secure the informants’ statements to the FBI. The court explained its reasoning:
“The crucial nature of the testimony of Ford and Matusow to the Government’s case is conspicuously apparent. The impeachment of that testimony was singularly important to the petitioner. The value of the reports for impeachment purposes was highlighted by the admissions of both witnesses that they could not remember what reports were oral and what written, and by Matusow’s admission: ‘I don’t recall what I put in my reports two or three years ago, written or oral, I don’t know what they were.’
“Every experienced trial judge and trial lawyer knows the value for impeaching purposes of statements of the witness recording the events before time dulls treacherous memory. Flat contradiction between the witness’ testimony and the version of the events given in his reports is not the only test of inconsistency. The omission from the reports of facts related at the trial, or a contrast in emphasis upon the same facts, even a different order of treatment, are also relevant to the cross-examining process of testing the credibility of a witness’ trial testimony.
“Requiring the accused first to show conflict between the reports and the testimony is actually to deny the accused evidence relevant and material to his defense. The occasion for determining a conflict cannot arise until after the witness has testified, and unless he admits conflict … the accused is helpless to know or discover conflict without inspecting the reports. A requirement of a showing of conflict would be clearly incompatible with our standards for the administration of criminal justice in the federal courts and must therefore be rejected. For the interest of the United States in a criminal prosecution . . . is not that it shall win a case, but that justice shall be done. . . .’” [quoting from Berger v. United States].
Prior to Jencks and long before Brady v. Maryland, federal courts routinely engaged in the practice of allowing the Government to produce documents after which the trial judge determined their “relevancy and materiality” without providing a defendant with an opportunity to establish relevance and materiality. The Supreme Court in Jencks disapproved of this practice, saying: “Relevancy and materiality for the purposes of production and inspection, with a view to use on cross-examination, are established when the reports are shown to relate to the testimony of the witness. Only after inspection of the reports by the accused, must the trial judge determine admissibility.”
The U.S. Congress was not pleased with the Supreme Court’s reversal of a conviction of a communist. In response to the reversal, Congress swiftly enacted what became known as the “Jencks Act.” This Act requires the Government to produce verbatim reports and transcripts of either Government agents or witnesses when the defendant makes a specific request for the material; however, Congress stipulated that production of the material is required after the witness has testified. As described by Heather E. Williams in the July 2005 edition of the NACDL’s Champion “The statute emasculates the Supreme Court’s decision, agreeing the records should be disclosed, but limiting disclosure until after the witness has testified.” Put simply, post-testimony production, given the last-minute timing, renders the documents useless for meaningful investigation and cross-examination/impeachment. This is especially true when it comes to Government informants whose initial law enforcement statements frequently differ from their actual trial testimony.
Nonetheless, trial courts have a consistent history of refusing defense attorneys’ attempts to have FBI 302s (witness interview reports) or any notes made during proffers and informant interviews produced prior to trial. This is especially true in the Fifth Circuit as evidenced by the appeals court in United States v. Brown in which it held that a defendant’s right to a fair trial is not violated when the trial court refuses to allow the defendant to question FBI agents about their notes. Even if the appeals court finds that the trial court abused its discretion or made a clear error in denying a Jencks Act request, the denial is subject to a “harmless error” analysis. As the appeals court said in United States v. Montgomery, “We strictly apply harmless error analysis and determine whether the error itself had a substantial influence on the judgment in addition to determining whether there was sufficient evidence to convict.” In effect, the appeals court weighs whether there is a reasonable possibility that the absence of the requested Jencks material affected the outcome of the case or handicapped the defense in the presentation of its case. A major factor considered is whether the witness’s testimony was significantly different from his/her original statements and their trial testimony.
However, in a brief but excellent article titled Unveiling Informant Testimony: The Unconstitutional of the Jencks Act, Stephen C. Leckar pointed to this exception dealing with Jencks requests: “In general, the standard of review for appellate courts is “abuse of discretion” or “clear error.” However, appellate courts are not especially hospitable to alleged violations of the Act and tend to apply a ‘harmless error’ standard for alleged violations of the Act and focus tends to turn on whether the violation was deliberate or inadvertent. If the notes (e.g., FBI Form 302s) are of an exculpatory nature and pertinent under the distinct but sometimes overlapping demands of Brady v. Maryland, then a different analysis comes into play. An alleged Brady violation is adjudicated by determining whether the failure to disclose significantly undermined the verdict’s fairness. Therefore, in the normal run of cases, defendants carry a heavy burden on appeal to show prejudice of a decision to deny discovery of case agents’ notes.”
Leckar made the critical observation that the way Rules 16 and 26.2 and the Jencks Act operate in discovery requests, a defendant can be deprived of his/her “right to effective assistance of counsel,” especially in federal narcotics and gang violence cases because these cases rely heavily on informant or accomplice testimony—both of which are notoriously unreliable. The Federal courts function under the mistaken notion that defense counsel will be able on cross-examination to determine the “for profit” motivation and/or fabrication so routinely associated with informant or accomplice testimony. If defense counsel is not provided with pre-trial disclosure of the statements of these witnesses, including law enforcement notes, he/she cannot mount a meaningful and effective cross-examination of them.
And if defense counsel discovers impeachment evidence in post-testimony Jencks material, a request for mistrial or curative instructions are routinely denied by the trial court, and as Leckar noted, the appeals courts are not “hospitable” to Jencks-related claims. The only real remedy for the defendant is to secure the assistance of other counsel or proceed pro se with a claim of ineffective assistance of trial counsel caused by Government misconduct. And such a claim is riddled with its own pitfalls: even if the defendant can establish an ineffective assistance claim, he/she must then prove prejudice to the extent of showing the guilty verdict would not have been returned had there been a pre-trial disclosure of the Jencks material.
These legal principles underscore the need for pre-trial disclosure of Jencks material. Leckar crystallized this need for such disclosure:
“An estimated one percent of Americans are pathological liars. Putting these people aside for the moment, ‘[a]ccomplices, if they give information or testify, may have a natural tendency to lie in order to minimize their part in the crime. Their motivations to perjure themselves may vary, but there is scant doubt that any number of factors, including the desire to minimize incarceration, may motivate cooperation. Fear, revenge, the belief that if he or she does not testify against a co-defendant the co-defendant may testify against him, as a mean of reordering a previously hierarchical relationship by testifying against a superior, the desire to take over an organization after helping to put the co-defendant away, and so forth, all constitute possible motivations to commit perjury.
“Cooperating witnesses, which in the underlying cases constitute a vast majority of the law enforcement witnesses, are susceptible to several extraneous influences. They are ‘(1) easily manipulated by coercive and suggestive interviewing techniques; (2) readily capable of giving false and embellished testimony with the prosecutor’s knowledge, acquiescence, indifference, or ignorance; (3) readily capable of creating false impressions by omissions or memory alterations that in the absence of any recordation or documentation eludes disclosure and impeachment; and (4) able to present … testimony to the jury in a truthful and convincing manner, which because of the nature of the cooperation process is difficult to impeach through cross-examination.’
“Two other factors exacerbate the problem of shifting accounts arising from proffer sessions. The Sentencing Guidelines, for one, ‘create a powerful incentive for cooperators to exaggerate and falsify information.’ It blinks at reality to think that the Guidelines do not create a powerful incentive to lie and derail the truth-seeking purpose of the criminal justice system. Even within the Justice Department, ‘there are few, if any, internal standards for substantial assistance to guide the discretion of prosecutors’ and the Department’s Principles of Federal Prosecution ‘do not require a prosecutor to take into account the truthfulness, reliability, or completeness of a defendant’s testimony when making a substantial assistance determination.’ At the vest least, ‘there is serious concern that this unregulated process corrupts the truth because it “encourage[s] some defendants to exaggerate or falsify information in order to obtain their [U.S.S.G.] 5K1.1 letter.”’”
The second factor discussed by Leckar was the interaction between Government agents and cooperating witnesses during “proffer and debriefing conferences” which have been described by Michael S. Ross as “the flashpoint which triggers perjury.” The Honorable Stephen S. Trott has described the quality of the evidence produced during proffer/debriefing conferences:
“Witnesses don’t just take the stand and produce nice narratives in response to non-leading questions without considerable work that the uninitiated cannot possibly appreciate.
“The process by which prosecutors debrief the cooperating witness during proffer sessions and then prepare the witness to testify at trial is typically lengthy, measured in multiple interviews that occur over many weeks, if not months.
“As an experienced appellate judge has remarked, ‘[i]f you decide to call an informer as a witness, you will end up spending much time with him preparing for his testimony.”
Some legal experts refer to these sessions as black holes of corroboration because, as Leckar noted, “they are fertile ground for evidence of cooperators’ inconsistent statements and bias to surface.” Not providing the defense with this valuable impeachment evidence prior to trial, especially when there is little, if any, corroboration for the evidence, renders the trial itself a mockery—a travesty routinely endorsed by trial and appellate courts. Informants and accomplices are criminals; they understand what prosecutors want to hear, and if they suspect the prosecutor knows they are lying, they are experts at manipulating the prosecutor’s desire for conviction and fear of acquittal. It takes a criminal to know a criminal. As Michael Ross put it:
“[W[hen a prosecutor tells a defendant or defense counsel what testimony is expected of the defendant (either in detail or in the form of bullet points) in order to qualify for coconspirator/leniency/immunity status, the defendant is powerfully motivated to parrot what the prosecution wants and expects to hear. Similarly, if the defendant or his or her counsel provides a proffer of facts, which is then followed by the prosecutor announcing that those facts are insufficient or inaccurate, again the cooperating witness is powerfully motivated to ‘change the story’ to accommodate the prosecutor’s version of the truth.”
The Jencks Act was never intended to be a legitimate “discovery tool” for the defense. Rather it was enacted in response to the “Red Scare” of the 1950s and had the actual intent of curtailing legitimate impeachment evidence for a criminal defendant, especially a communist. While Jencks was initially created as a legislative tool to curb the “red under every bed” threat, it has morphed into a prosecutor’s favorite shield to avoid production of material evidence in drug and gang violence cases, especially those involving paid undercover informants and cooperating accomplices.
And it is often this corrupt process—the proffer/debriefing/cooperation sessions—which produces so much of the misconduct, failure to disclose exculpatory or mitigating evidence, prevalent in federal prosecutions.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified by the Texas Board of Legal Specialization
Leckar, Stephen C., “Unveiling Informant Testimony: The Unconstitutionality of the Jencks Act,” Criminal Law Brief 3, no. 1 (2007) 40-48.
Michael S. Ross, Thinking Outside the Box: Proposals for Change: How the Enforcement of Ethical Rules Can Minimize the Damages of Prosecutorial Leniency and Immunity Deals, 23 Cardozo L. Rev. 875, 879 (2002).
Stephen S. Trott, Words of Warning for Prosecutors Using Criminals as Witnesses, 47 Hastings L.J. 1381, 1383 (1996).
In Texas, similar rules regarding the production of witness statements in criminal cases are found in TRE 615.
It is important to note that Jencks is distinct and apart from prosecutors’ obligations under Brady. “Exculpatory information, regardless of whether the information is memorialized, must be disclosed to the defendant reasonably promptly after discovery. Impeachment information, which depends on the prosecutor’s decision on who is or may be called as a government witness, will typically, be disclosed at a reasonable time before trial to allow the trial to proceed efficiently.” US Attorney’s Guidance on Discovery