B. The Jencks Act – 18 U.S.C. § 3500

As indicated in the discussion of Rule 16 of The Federal Rules of Criminal Procedure, a defendant may not under the guise of a request for documents, obtain copies of statements made by Government witnesses. Indeed, subsection (a)(2) of Rule 16 specifically protects from pre-trial disclosure “statements made by prospective Government witnesses except as provided in 18 U.S.C. § 3500”.  The reader will recall that this provision was enacted as a precautionary measure to prevent witness intimidation and harassment by unscrupulous and guilty defendants. The reader will also recall, however, that subsection (a) (2) of Rule 16 was not enacted to deny rights to those who have no inclination to harass or intimidate witnesses or otherwise manipulate the system. Thus, the exception in subsection (a)(2), “except as provided in 18 U.S.C. § 3500”.

Title 18 United States Code § 3500, commonly referred to as The Jencks Act, provides that all persons accused of violating federal law may obtain copies of witness statements after that person has testified. In other words, pre-trial access to witness names and identities are not provided for in the federal criminal system. However, and in recognition of the fact that access to such statements would enable and promote the fact finding process of meaningful cross-examination of witnesses, Congress did pass The Jencks Act which provides access to the witness’ statement after a point in the proceedings when the witness cannot be intimidated or prevented from testifying – i.e. – after testimony.  Again, we see the balance to the system referenced above. The public has a right to see criminals brought to justice. If witness identities were discoverable pre-trial, the right of the public could be seriously damaged. On the other hand, criminal defendants have an absolute constitutional right under the Sixth Amendment to confront those who provide evidence against them. The Jencks Act speaks to each of these concerns, as do all of the federal discovery provisions.

18 U.S.C. § 3500(a) governs the timing of disclosure of witness statements:

“In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.”

Subsections (b) and (c) of The Jencks Act govern exactly what is discoverable after the witness testifies. If the entire context of the prior recorded statement pertains to the subject matter of the witness testimony, the entire statement is discoverable. It may be, however, that in the witness’ statement there are references to other cases, witnesses or subjects not involved in the trial of the case in which the witness has appeared. In this instance, the Government may seek to excise the witness’ statement and protect the unrelated portions thereof.  If such is the contention of Government counsel, subsection (c) of The Jencks Act requires that the statement be submitted in camera to the Trial Court so that an impartial decision may be made on this issue. If the Court agrees with the Government, the defendant will only be provided with the excised portion of the witness’ statement which relates to his direct testimony. If the Court does not agree with the Government, however, and will not order that the statement be redacted, then the Government has two alternatives it can take. First, it can accept the Court’s ruling and divulge the entirety of the statement. Secondly, and especially if the Government counsel believes disclosure of the entire statement might jeopardize the safety of other persons, it can refuse to divulge the statement and have its witness’ testimony stricken from the record or, if justice requires, offer a mistrial in the case.

The term “statement” as used in The Jencks Act is defined in 18 U.S.C. § 3500(e) to mean: “(1) a written statement made by said 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 said 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 said witness to a grand jury.”

If a criminal investigator interviews a witness and prepares a memorandum of interview, the memorandum will not be discoverable under the provisions of Rule 16(a)(2) but may be discoverable under The Jencks Act provided the witness signs, approves or otherwise adopts the memorandum as being his statement. If the witness never sees the internal memorandum, it will not be discoverable as a Jencks Act statement. Moreover, even though Grand Jury transcripts are protected from pre-trial disclosure under Rule 16, some may be discoverable during trial. If a witness testifies before a Grand Jury and then testifies on behalf of the Government before a petit jury, the defendant will be able to obtain a copy of the Grand Jury transcript of that witness’ “statement” under subsection (e)(3) of The Jencks Act.  Here again, however, the government may seek to protect portions of any statement if not directly related to the witness’ direct testimony before the petit jury.

As a practical matter, federal prosecutors often provide Jencks Act material slightly in advance of a witness’ testimony. If advance disclosure is not made, and the statement is only disclosed after the witness has testified in direct examination for the Government, defense counsel will probably be granted a brief continuance in the proceedings in which to review the witness’ adopted, signed or otherwise approved prior statement before starting cross-examination. Otherwise, Jencks Act disclosures would be meaningless to a defendant as there would be no time to review the statement prior to cross-examination. Because prosecutors are aware that continuances may be granted in instances where Jencks Act material exists, they usually make such statements available a day or two before the witness testifies. They are not required under 18 U.S.C. § 3500 to do this, however, by so doing they will decrease the chances for continuances and increase the possibilities of an orderly trial presentation.

In many cases, such as white collar offenses, a prosecutor may not fear any attempts by the defendant at witness intimidation or harassment.  In these cases, Jencks Act disclosures may be made along with Rule 16 disclosures. However, such premature disclosure is purely discretionary on the prosecutor’s part. It may be that such disclosure might increase the possibilities of a guilty plea by demonstrating to the defendant the strength of the Government’s evidence. There are, therefore, many reasons why a prosecutor may want to provide what is known in the trade as “early Jencks”.

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