United States Department of Justice Issues Memoranda to Provide Guidance for Prosecutors Regarding Criminal Discovery

January 08, 2010

In the wake of several high-profile fiascos the United States Department of Justice (“DOJ”) has suffered over the last several years as a result of criminal discovery violations,1 on Jan. 4, 2010, DOJ’s deputy attorney general issued three memoranda to DOJ prosecutors to provide guidance and training on how the government should meet its discovery obligations. Taken together, this DOJ effort to right its own ship sends a clear message to federal prosecutors nationwide to avoid discovery gamesmanship, to take personal responsibility for the discovery process, and to recognize their essential role in the system to ensure procedural as well as substantive justice. If they fail in that role, the Judicial Conference stands ready to consider adopting rules formalizing the government’s discovery obligations.2

Guidance for Prosecutors Regarding Criminal Discovery Memorandum

In this Guidance memo, DOJ outlines a “methodical” four-step approach to consideration of discovery obligations that prosecutors should follow “in every case to avoid lapses that can result in consequences adverse to the Department’s pursuit of justice.” The first step involves gathering and reviewing discoverable information. Toward that end, the prosecutor must initially determine who is a member of the “Prosecution Team.” The Prosecution Team will most obviously include the agents and law enforcement officers within the relevant district or DOJ component working on the case. Where the issue becomes more complicated is in multidistrict investigations, federal-state-local investigations and parallel administrative-civil-criminal proceedings. In those situations, the prosecutor must consider whether the relationship with the other district or agency is “close enough” to make it part of the Prosecution Team. Factors to be considered include whether the prosecutor and the agency conducted a joint investigation and shared resources; whether the agency played an active role in the prosecution (e.g., interviewing witnesses or developing prosecutorial strategy); whether the prosecutor has knowledge or possession of or access to discoverable information held by the agency; and whether the prosecutor has shared information with the agency. DOJ emphasizes that prosecutors are “encouraged to err on the side of inclusiveness” when identifying members of the Prosecution Team.

Once the Prosecution Team is identified, the prosecutor must gather “all potentially discoverable material within the custody or control” of the Prosecution Team. This discovery encompasses the investigative agency’s entire investigative file including discoverable emails; the cooperating witness’s and informant’s files; all evidence gathered during the investigation including evidence gathered by civil attorneys and regulatory agencies in parallel civil investigations; substantive case-related communications between the prosecutor, agents, witnesses and victims; impeachment information relating to witnesses; and information obtained during witness interviews. To avoid situations where prosecutors have failed to turn over exculpatory information because no one wrote down a witness’ statement, DOJ instructs that “material exculpatory information that a prosecutor receives during a conversation with an agent or witness is no less discoverable than if the same information were contained in an email.”

After completing the first step of information gathering, the second step consists of reviewing the material to identify discoverable information. While prosecutors are permitted to delegate to agents, paralegals, agency counsel and computerized searches the process for identifying potentially discoverable information, prosecutors “should not delegate the disclosure determination itself” since they are “ultimately responsible for compliance with discovery obligations.” Stated differently, DOJ is putting prosecutors on notice that blaming those under their supervision for any discovery violations that arise will not be countenanced. In cases with voluminous documents from third parties, DOJ suggests that prosecutors may simply provide direct access to defense counsel to all the documents rather than engaging in the very time-consuming task of culling out only discoverable material. In many cases, prosecutors have already been operating under this suggestion by furnishing to defense counsel CDs or DVDs embedded with the voluminous discovery that has been scanned and digitized.

The third step in honoring the government’s discovery obligations involves making the disclosures themselves. DOJ encourages prosecutors to “provide discovery broader and more comprehensive than [called for by] the discovery obligations.” DOJ recognizes that providing broad and early discovery promotes DOJ’s “truth-seeking mission” and “fosters a speedy resolution of the case.” DOJ allows prosecutors, however, to balance providing early discovery with various “countervailing concerns.” Some of these concerns are traditional and factually verifiable such as protecting the privacy interests of victims and witnesses, protecting them from harassment or intimidation, protecting privileged information and obstruction of the trial, and protecting national security interests. Other listed “countervailing concerns” — e.g., “investigative agency concerns,” “enhancing the likelihood of receiving reciprocal discovery by defendants” and “other strategic considerations that enhance the likelihood of achieving a just result” — represent potentially all-encompassing loopholes that can be improperly used in a particular case to thwart broad and early discovery. In a similar vein, when addressing the timing of discovery disclosures, DOJ shies away from mandating full disclosure at the initial arraignment. Instead, DOJ opts for more vague time frames such as “reasonably promptly after discovery” for exculpatory information and a “reasonable time before trial” for impeachment information.

The fourth step consists of keeping good records regarding disclosures of what discovery was produced and when in order to avoid time-consuming, after-the-fact litigation over the content and timing  of the discovery production.

Requirement for Office Discovery Policies in Criminal Matters Memorandum

In this second memo, DOJ expressly declines to set a uniform, national policy for criminal discovery by DOJ prosecutors. Instead, DOJ limits its focus to trying to avoid inconsistencies within a local U.S. Attorney’s Office (“USAO”) or DOJ litigating branch. To fulfill this reduced mandate, DOJ directs each USAO and DOJ litigating component to develop its own discovery policy by no later than March 31, 2010. Such a discovery policy must incorporate the considerations from the Guidance memo and reflect circuit and district court precedent and local rules and practices. It will be crucial in litigating federal criminal cases for defense counsel to be fully versed with the discovery policy of the district in which the case is occurring as well all applicable circuit and district court precedents and local rules and practices.

Issuance of Guidance and Summary of Actions Taken in Response to the Report of the Department of Justice Criminal Discovery and Case Management Working Group

In this third memo, DOJ announced that each USAO and DOJ litigating component will have a discovery coordinator who will provide discovery training. In addition, DOJ will create an online directory of resources pertaining to discovery issues for all prosecutors; a Handbook on Discovery and Case Management; a training curriculum and mandatory training program for paralegals and law enforcement agents; and a revitalized Computer Forensics Working Group to address the problem of properly cataloguing electronically stored information.


Like in 1994 and 2006, DOJ has responded first to the cries for more regulation over the government’s discovery obligations before waiting for the Judicial Conference to act. If prosecutors heed the instructions, guidance and warnings embodied in these three memorandum, many of the kinds of egregious discovery violations that have seriously damaged DOJ’s reputation for fairness can be eliminated. Prosecutors will once again be able to live up to Justice Sutherland’s observations in Berger v. United States, 295 U.S. 78, 88 (1935), quoted in the third DOJ memo:

The United States is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

1 See, e.g., United States v. Stevens, Case No.CR-08-231-EGS (D.D.C.) (government moved to dismiss the indictment against Senator Ted Stevens after guilty verdict, acknowledging that material impeachment evidence of a key trial witness was not turned over to the defense); United States v. Chapman, 524 F.3d 1073 (9th Cir. 2008) (affirmed dismissal of indictment during trial in complex securities trading case where government failed to comply with its discovery obligations).

2 See Jacob, Marv, “Judicial Conference Will Take Up Sullivan’s Brady Proposal,” found at (July 7, 2009) (Committee on Rules of Practice and Procedure of the Judicial Conference of the United States agreed to consider U.S. District Judge Emmet G. Sullivan’s proposal to amend Rule 16 of the Federal Rules of Criminal Procedure to require the prosecution to disclose exculpatory information to the defense).

This article was originally published by Bingham McCutchen LLP.