Tweets From The Feds
Tampa Federal Criminal Defense Attorney notes that tweets are now discoverable in federal criminal cases. Because the Feds (United States Attorneys) were caught hiding evidence, the DOJ (United States Department of Justice) has written a memo on information to provide criminal defense attorneys. After 3 years, the memo has been released. Potential Sources of Discoverable Information include: Agency Files, Confidential Informant Files, Evidence, Gathered Information, Emails, Tweets, Text Messages, Memoranda, and Notes, etc.
Just obtained an internal memo from the Feds discussing all aspects of what the police and prosecutors must disclose to targets of federal prosecutions, including a warning that some tweets and social media use must be disclosed by Prosecutors in criminal cases. In short: Feds were caught hiding the ball and now must follow the rules in this detailed memo.
“tweets are now discoverable”
The new guidelines come from an investigation of case where United States Attorneys ( not in the Middle District of Florida ) were improperly concealing evidence. The memo may have been the result of prosecutors that improperly with held evidence in the case of a United States Senator who was convicted by a jury. Days later the Justice Department dropped the charges. After the Senator’s wrongful conviction, to cure these improprieties, the U.S. Department of Justice ordered prosecutors to draft memos on information to provide criminal defense lawyers – here are their marching orders.
Discover tweets: the Feds have
We initially received a tip from the Federal Defender, Eastern District of California. A complete copy of the United States Department of Justice Discovery Memo is available here. A video including the Attorney General’s statements on the problems with handling of evidence and the solution is included at the bottom of this post.
“The biggest problem is that nobody outside the prosecutor’s office actually knows what those policies are.”
The U.S. Department of Justice (USDOJ) ultimately released 73 individualized manuals for many federal district offices. There are links to the other Florida Federal Districts located at the end of this post. Florida has three districts. They are the Middle District, the Southern District, and the Northern District.
The Point: Feds were caught hiding the ball and now must follow the rules in this memo.
In the State court system, most prosecutors have a “open file” policy that ensures that whatever information is contained in the prosecutor’s file is available to defense attorneys. The lone exception has been state cases where police and prosecutors want to protect the identity of confidential sources. In police reports these frequently appear as “CS” for confidential source or “CI” for confidential informant.
“written and unwritten statements are discoverable in federal criminal cases”
Discovery Sources Bullet Points
- Investigative Agency’s Files
- Confidential Informant Files
- Evidence and Information Gathered During Investigation
- Documents or Evidence Gathered by Civil Attorneys
- Emails, tweets, text messages, memoranda, notes
- Personnel and Disciplinary Files
- Handwritten Notes of Agents
- Presentence Reports
Tampa Federal Criminal Defense Attorney on Discovery Practices
In 20 or so years of Federal Criminal practice in the Tampa Bay area the best course of action considered the fact: “rules for what prosecutors must share and when remained almost entirely secret. . . .” USA Today, filed a Freedom of Information Act request that forced the hand of the Federal Prosecutors to pull back the curtain on what must be provided to defense attorneys under the Constitution and Federal Rules of Criminal Procedure.
“it took the department nearly three years to release the policies”
“The biggest problem is that nobody outside the prosecutor’s office actually knows what those policies are.” said Timothy O’Toole of the National Association of Criminal Defense Lawyers (NACDL). According to USA Today, “it took the department [U.S. Department of Justice] nearly three years to release the policies from 74 U.S. attorneys’ offices . . . .”
Overview of the Federal Prosecutor Manual
Federal Rules of Criminal Procedure Rule 16 (b)
“Most criminal defense attorneys immediately request that evidence be produced at the initial appearance”
As a starting point, “To trigger the government’s reciprocal discovery rights defined in Federal Rules of Criminal Procedure Rule 16 (b), the defendant must request discovery.” says a footnote in the document. The manual defines the scope of persons including law enforcement agencies and staff from whom investigative information should be obtained. Most criminal defense attorneys immediately request that evidence be produced at the initial appearance or arraignment or detention hearing. The manual puts in writing the types of information available to defend federal criminal defendant by an exhaustive listing of what constitutes “discovery” or “discoverable information.”
Information Helpful to the Defense
“regardless of whether the prosecutor believes such information will make the difference between conviction and acquittal”
The memo specifically instructs Assistant United States Attorneys (Prosecutors) that “[a] prosecutor must disclose information that is inconsistent with any element of any crime charged against the defendant or that establishes a recognized affirmative defense, regardless of whether the prosecutor believes such information will make the difference between conviction and acquittal of the defendant for a charged crime.” USAM 9-5.001 C 1.
Limit Use of Reports in Court
“continue to object to use of the report”
Although the defense may get a report that includes witness statements, the manual reminds prosecutors to limit the use of statements in the reports. Especially when defense attorneys try to use the reports in cross-examination of witnesses in court. The memo states in part, “unless the witness has adopted the memorandum as his statement, AUSAs [Assistant United States Attorneys] should continue to object to use of the report in cross examination as if it were the witness’ statement.” See Page 9 of the Federal Prosecutor’s Memo.
Disclose Written and Unwritten Favorable Information
“discussions cannot be avoided by failing to memorialize these events”
Sometimes police try to prevent helpful information from falling into the hands of the defense. To that end, the cops would not write down everything. They would fail to include helpful information in their reports. In a most remarkable requirement, the memo reminds prosecutors that, “[t]he duty to disclose to the defendant the substance of what a witness has said during interviews, debriefings, or informal discussions cannot be avoided by failing to memorialize these events. If any such events occur that are not memorialized in an interview report, the AUSA should determine what the witness said during the session and disclose the content of the witness’ statements to the defense. AUSAs should emphasize to agents the importance of memorializing all impeaching information.” See Page 10 of the Federal Prosecutor’s Memo.
The memo also extends prosecutors’ obligation to disclose to preparation of witnesses for trial. “The duty to disclose to the defendant the substance of what a witness has said during a pre-trial preparation session cannot be avoided by failing to memorialize it.” See Page 11 of the Federal Prosecutor’s Memo.
Who is Part of the Prosecution Team?
“know which agencies have played a role in the investigation”
To prevent prosecutors from using claims that favorable information was not available to disclose, the memo explicitly describes who is a part of the prosecution’s team. “‘prosecution team’ is defined as including ‘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 AUSA needs to know which agencies have played a role in the investigation and make all reasonable inquiries to ascertain what pertinent case information exists. When identifying members of the prosecution team, AUSAs should err on the side of inclusiveness . . . .” See Page 12 of the Federal Prosecutor’s Memo.
Excerpts from the U.S. Attorney’s Manual
Responsibility of AUSA(s)
The responsibility to produce all discoverable information in a criminal case lies with the AUSA(s) assigned to the case. To fulfill this responsibility, AUSAs should consider several matters:
• What & When: What are the policies, rules, statutes and case law that define what must be produced and when must it be produced? (See II. Laws, Rules and Policy Governing the Production of Discoverable
Information (What Must Be Produced and When?))
• Who is part of the prosecution team: AUSAs are obligated to produce information that is within the possession of the prosecution team; thus, defining the scope of the prosecution team is critical. (See III. Who is Part of the Prosecution Team: Gathering and Reviewing Potentially Discoverable Information)
• Where to look: Once the prosecution team has been identified, AUSAs must ensure that all discoverable information is located, reviewed and produced as required, including agency investigative and administrative files, CI files, emails, PSRs, law enforcement Giglio, etc. (See IV. Potential Sources of Discoverable Information)
• How to produce and track: AUSAs must decide in what form to produce the discovery (bates numbered, hard copy, e-copy, available for inspection, redacted, etc), and must keep a detailed record of all discovery produced. (See V. Manner of Production and Recordkeeping) See Page 2 of the Federal Prosecutor’s Memo.
Scope of Criminal Discovery in Federal Cases
“For the purposes of this memorandum, “discovery” or “discoverable information” is not limited to Federal Rule of Criminal Procedure 16 information, but also includes all information and materials the
government must disclose to the defendant pursuant to the Jencks Act and Federal Rule of Criminal Procedure 26.2; Federal Rule of Evidence 404(b); Brady, Giglio, USAM 9-5.001 and 9-5.100; any applicable local rules; and the any applicable standing discovery order in a criminal case.” See Page 3 of the Federal Prosecutor’s Memo.
Memo Policies Must be Followed
“Deviation from the policy of production of reports of witness interviews requires Criminal Chief or Deputy Criminal Chief approval.” See Page 9 of the Federal Prosecutor’s Memo.
Not All Witness Statements are Created Equal
“Be careful not to characterize a witness interview as a Jencks Act statement in discovery letters or court pleadings”
“The Jencks Act defines “witness statements” as … “(1) a written statement made by [a] 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 [the] 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 [a] witness to a grand jury.” 18 U.S.C. § 3500 (e).
“[U]nless the witness has adopted the memorandum as his statement, AUSAs should continue to object to use of the report in cross examination as if it were the witness’ statement.” See Page 9 of the Federal Prosecutor’s Memo.
Helpful Information Must be Disclosed – Written or Not
“Memorializing Favorable Information and the Duty to Disclose. The duty to disclose to the defendant the substance of what a witness has said during interviews, debriefings, or informal discussions cannot be avoided by failing to memorialize these events. If any such events occur that are not memorialized in an interview report, the AUSA should determine what the witness said during the session and disclose the content of the witness’ statements to the defense. AUSAs should emphasize to agents the importance of memorializing all impeaching information.” See Page 10 of the Federal Prosecutor’s Memo. (underlining in original).
Witness Interview and Preparation – Continuing Duty to Disclose
“The duty to disclose to the defendant the substance of what a witness has said during a pre-trial preparation session cannot be avoided by failing to memorialize it.” See Page 11 of the Federal Prosecutor’s Memo.
Video – Attorney General Holder on the Discovery Memo
Other Florida Federal District Court Discovery Manuals