9-5.001
Policy Regarding Disclosure of Exculpatory and Impeachment
Information
- Purpose.
Consistent with applicable federal statutes, rules, and
case law, the policy set forth here is intended to promote regularity
in disclosure practices, through the reasoned and guided exercise of
prosecutorial judgment and discretion by attorneys for the government,
with respect to the government's obligation both to disclose
exculpatory and impeachment information to criminal defendants and to
seek a just result in every case. The policy is intended to ensure
timely disclosure of an appropriate scope of exculpatory and
impeachment information so as to ensure that trials are fair. The
policy, however, recognizes that other interests, such as witness
security and national security, are also critically important, see
USAM 9-21.000,
and that if disclosure prior to trial might
jeopardize these interests, disclosure may be delayed or restricted
(e.g. pursuant to the Classified Information Procedures Act).
This policy is not a substitute for researching the legal issues that
may arise in an individual case. Additionally, this policy does not
alter or supersede the policy that requires prosecutors to disclose
"substantial evidence that directly negates the guilt of a subject of
the investigation" to the grand jury before seeking an indictment,
see
USAM 9-11.233.
- Constitutional obligation to ensure a fair trial and disclose
material exculpatory and impeachment evidence.
Government
disclosure of material exculpatory and impeachment evidence is part of
the constitutional guarantee to a fair trial. Brady v.
Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States,
405 U.S. 150, 154 (1972). The law requires the disclosure of
exculpatory and impeachment evidence when such evidence is material to
guilt or punishment. Brady, 373 U.S. at 87; Giglio, 405
U.S. at 154. Because they are Constitutional obligations,
Brady and Giglio evidence must be disclosed regardless of
whether the defendant makes a request for exculpatory or impeachment
evidence. Kyles v. Whitley, 514 U.S. 419, 432-33 (1995).
Neither the Constitution nor this policy, however, creates a general
discovery right for trial preparation or plea negotiations. U.S. v.
Ruiz, 536 U.S. 622, 629 (2002); Weatherford v. Bursey, 429
U.S. 545, 559 (1977).
- Materiality and Admissibility.
Exculpatory and impeachment
evidence is material to a finding of guilt—and thus the
Constitution requires disclosure—when there is a reasonable
probability that effective use of the evidence will result in an
acquittal. United States v. Bagley, 475 U.S. 667, 676
(1985). Recognizing that it is sometimes difficult to assess the
materiality of evidence before trial, prosecutors generally must
take a broad view of materiality and err on the side of disclosing
exculpatory and impeaching evidence. Kyles, 514 U.S. at
439. While ordinarily, evidence that would not be admissible at
trial need not be disclosed, this policy encourages
prosecutors to err on the side of disclosure if admissibility is a
close question.
- The prosecution team.
It is the obligation of federal
prosecutors, in preparing for trial, to seek all exculpatory and
impeachment information from all the 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. Kyles, 514 U.S. at 437.
- Disclosure of exculpatory and impeachment information beyond
that which is constitutionally and legally required.
Department
policy recognizes that a fair trial will often include examination of
relevant exculpatory or impeachment information that is significantly
probative of the issues before the court but that may not, on its own,
result in an acquittal or, as is often colloquially expressed, make the
difference between guilt and innocence. As a result, this policy
requires disclosure by prosecutors of information beyond that which is
"material" to guilt as articulated in Kyles v. Whitley, 514 U.S.
419 (1995), and Strickler v. Greene, 527 U.S. 263, 280-81
(1999). The policy recognizes, however, that a trial should not involve
the consideration of information which is irrelevant or not
significantly probative of the issues before the court and should not
involve spurious issues or arguments which serve to divert the trial
process from examining the genuine issues. Information that goes only
to such matters does not advance the purpose of a trial and thus is not
subject to disclosure.
- Additional exculpatory information that must be
disclosed.
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.
- Additional impeachment information that must be
disclosed.
A prosecutor must disclose information that either
casts a substantial doubt upon the accuracy of any
evidence—including but not limited to witness testimony—the
prosecutor intends to rely on to prove an element of any crime
charged, or might have a significant bearing on the admissibility
of prosecution evidence. This information must be disclosed
regardless of whether it is likely to make the difference between
conviction and acquittal of the defendant for a charged crime.
- Information.
Unlike the requirements of Brady
and its progeny, which focus on evidence, the disclosure
requirement of this section applies to information regardless of
whether the information subject to disclosure would itself
constitute admissible evidence.
- Cumulative impact of items of information.
While items
of information viewed in isolation may not reasonably be seen as
meeting the standards outlined in paragraphs 1 and 2 above,
several items together can have such an effect. If this is the
case, all such items must be disclosed.
- Timing of disclosure.
Due process requires that disclosure
of exculpatory and impeachment evidence material to guilt or innocence
be made in sufficient time to permit the defendant to make effective
use of that information at trial. See, e.g.
Weatherford v. Bursey, 429 U.S. 545, 559 (1997); United
States v. Farley, 2 F.3d 645, 654 (6th Cir. 1993). In most
cases, the disclosures required by the Constitution and this policy
will be made in advance of trial.
- Exculpatory information.
Exculpatory information must
be disclosed reasonably promptly after it is discovered. This
policy recognizes that exculpatory information that includes
classified or otherwise sensitive national security material may
require certain protective measures that may cause disclosure to
be delayed or restricted (e.g. pursuant to the Classified
Information Procedures Act).
- Impeachment information.
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. In
some cases, however, a prosecutor may have to balance
the goals of early disclosure against other significant
interests—such as witness security and national
security—and may conclude that it is not appropriate
to provide early disclosure. In such cases, required
disclosures may be made at a time and in a manner
consistent with the policy embodied in the Jencks Act,
18 U.S.C. § 3500.
- Exculpatory or impeachment information casting doubt upon
sentencing factors.
Exculpatory and impeachment information
that casts doubt upon proof of an aggravating factor at
sentencing, but that does not relate to proof of guilt, must be
disclosed no later than the court's initial presentence
investigation.
- Supervisory approval and notice to the defendant.
A
prosecutor must obtain supervisory approval not to disclose
impeachment information before trial or not to disclose
exculpatory information reasonably promptly because of its
classified nature. Upon such approval, notice must be provided to
the defendant of the time and manner by which disclosure of the
exculpatory or impeachment information will be made.
- Comment.
This policy establishes guidelines for the
exercise of judgment and discretion by attorneys for the
government in determining what information to disclose to a
criminal defendant pursuant to the government's disclosure
obligation as set out in Brady v. Maryland and
Giglio v. United States and its obligation to
seek justice in every case. As the Supreme Court has
explained, disclosure is required when evidence in the
possession of the prosecutor or prosecution team is material
to guilt, innocence or punishment. This policy encourages
prosecutors to err on the side of disclosure in close
questions of materiality and identifies standards that favor
greater disclosure in advance of trial through the
production of exculpatory information that is inconsistent
with any element of any charged crime and impeachment
information that casts a substantial doubt upon either the
accuracy of any evidence the government intends to rely on
to prove an element of any charged crime or that might have
a significant bearing on the admissibility of prosecution
evidence. Under this policy, the government's disclosure
will exceed its constitutional obligations. This expanded
disclosure policy, however, does not create a general right
of discovery in criminal cases. Nor does it provide
defendants with any additional rights or remedies. Where it
is unclear whether evidence or information should be
disclosed, prosecutors are encouraged to reveal such
information to defendants or to the court for inspection
in camera and, where applicable, seek a protective
order from the Court. By doing so, prosecutors will ensure
confidence in fair trials and verdicts. Prosecutors are
also encouraged to undertake periodic training concerning
the government's disclosure obligation and the emerging case
law surrounding that obligation.
[new October 2006]
[cited in
USAM 9-5.100]
9-5.100
Policy Regarding the Disclosure to Prosecutors of Potential
Impeachment Information Concerning Law Enforcement Agency Witnesses ("Giglio
Policy")
|
On December 9, 1996, the Attorney General issued a Policy
regarding the Disclosure to Prosecutors of Potential Impeachment
Information Concerning Law Enforcement Agency Witnesses ("Giglio
Policy"). It applies to all Department of Justice Investigative
agencies that are named in the Preface, below. On October 19,
2006, the Attorney General amended this policy to conform to the
Department's new policy regarding disclosure of exculpatory and
impeachment information, see
USAM 9-5.001.
The Secretary of the Treasury has issued the same policy for
all Treasury investigative agencies.
Policy Regarding the Disclosure to Prosecutors of Potential
Impeachment Information Concerning Law Enforcement Agency
Witnesses ("Giglio Policy")
Preface: The following policy is established for: the
Federal Bureau of Investigation, Drug Enforcement Administration,
Bureau of Alcohol, Tobacco, Firearms and Explosives, the United
States Marshals Service, the Department of Justice Office of the
Inspector General, and the Department of Justice Office of
Professional Responsibility ("the investigative agencies"). It
addresses their disclosure of potential impeachment information
to the United States Attorneys' Offices and Department of Justice
litigating sections with authority to prosecute criminal cases
("Department of Justice prosecuting offices"). The purposes of
this policy are to ensure that prosecutors receive sufficient
information to meet their obligations under Giglio v. United
States, 405 U.S. 150 (1972), and to ensure that trials are fair,
while protecting the legitimate privacy rights of Government
employees. NOTE: This policy is not intended to create or confer
any rights, privileges, or benefits to prospective or actual
witnesses or defendants. It is also not intended to have the
force of law. United States v. Caceres, 440 U.S. 741 (1979).
The exact parameters of potential impeachment information are
not easily determined. Potential impeachment information,
however, has been generally defined as impeaching information
which is material to the defense. It also includes information
that either casts a substantial doubt upon the accuracy of any
evidence—including witness testimony—the prosecutor intends
to rely on to prove an element of any crime charged, or might
have a significant bearing on the admissibility of prosecution
evidence. This information may include but is not strictly
limited to: (a) specific instances of conduct of a witness for
the purpose of attacking the witness' credibility or character
for truthfulness; (b) evidence in the form of opinion or
reputation as to a witness' character for truthfulness; (c) prior
inconsistent statements; and (d) information that may be used to
suggest that a witness is biased.
This policy is not intended to replace the obligation of
individual agency employees to inform prosecuting attorneys with
whom they work of potential impeachment information prior to
providing a sworn statement or testimony in any investigation or
case. In the majority of investigations and cases in which
agency employees may be affiants or witnesses, it is expected
that the prosecuting attorney will be able to obtain all
potential impeachment information directly from agency witnesses
during the normal course of investigations and/or preparation for
hearings or trials.
Procedures for Disclosing Potential Impeachment Information
Relating to Department of Justice Employees
- Obligation to Disclose Potential Impeachment Information. It is
expected that a prosecutor generally will be able to obtain all
potential impeachment information directly from potential agency
witnesses and/or affiants. Each investigative agency employee is
obligated to inform prosecutors with whom they work of potential
impeachment information as early as possible prior to providing a sworn
statement or testimony in any criminal investigation or case. Each
investigative agency should ensure that its employees fulfill this
obligation. Nevertheless, in some cases, a prosecutor may also decide
to request potential impeachment information from the investigative
agency. This policy sets forth procedures for those cases in which a
prosecutor decides to make such a request.
- Agency Officials.
Each of the investigative
agencies shall designate an appropriate official(s) to
serve as the point(s) of contact concerning Department
of Justice employees' potential impeachment information
("the Agency Official"). Each Agency Official shall
consult periodically with the relevant Requesting
Officials about Supreme Court caselaw, circuit caselaw,
and district court rulings and practice governing the
definition and disclosure of impeachment
information.
- Requesting Officials.
Each of the Department of
Justice prosecuting offices shall designate an
appropriate senior official(s) to serve as the point(s)
of contact concerning potential impeachment information
("the Requesting Official"). Each Requesting Official
shall inform the relevant Agency Officials about
Supreme Court caselaw, circuit caselaw, and district
court rulings and practice governing the definition and
disclosure of impeachment information.
- Request to Agency Officials.
When a prosecutor determines that
it is necessary to request potential impeachment information from
an Agency Official(s) relating to an agency employee identified as
a potential witness or affiant ("the employee") in a specific
criminal case or investigation, the prosecutor shall notify the
appropriate Requesting Official. Upon receiving such
notification, the Requesting Official may request potential
impeachment information relating to the employee from the
employing Agency Official(s) and the designated Agency Official(s)
in the Department of Justice Office of the Inspector General
("OIG") and the Department of Justice Office of Professional
Responsibility ("DOJ-OPR").
- Agency Review and Disclosure.
Upon receiving the request
described in Paragraph 4, the Agency Official(s) from the
employing agency, the OIG and DOJ- OPR shall each conduct a
review, in accordance with its respective agency plan, for
potential impeachment information regarding the identified
employee. The employing Agency Official(s), the OIG and DOJ-OPR
shall advise the Requesting Official of: (a) any finding of
misconduct that reflects upon the truthfulness or possible bias of
the employee, including a finding of lack of candor during an
administrative inquiry; (b) any past or pending criminal charge
brought against the employee; and (c) any credible allegation of
misconduct that reflects upon the truthfulness or possible bias of
the employee that is the subject of a pending investigation.
- Treatment of Allegations Which Are Unsubstantiated, Not Credible, or
Have Resulted in Exoneration.
Allegations that cannot be
substantiated, are not credible, or have resulted in the
exoneration of an employee generally are not considered to be
potential impeachment information. Upon request, such information
which reflects upon the truthfulness or bias of the employee, to
the extent maintained by the agency, will be provided to the
prosecuting office under the following circumstances: (a) when the
Requesting Official advises the Agency Official that it is
required by a Court decision in the district where the
investigation or case is being pursued; (b) when, on or after the
effective date of this policy: (i) the allegation was made by a
federal prosecutor, magistrate judge, or judge; or (ii) the
allegation received publicity; (c) when the Requesting Official
and the Agency Official agree that such disclosure is appropriate,
based upon exceptional circumstances involving the nature of the
case or the role of the agency witness; or (d) when disclosure is
otherwise deemed appropriate by the agency. The agency is
responsible for advising the prosecuting office, to the extent
determined, whether any aforementioned allegation is
unsubstantiated, not credible, or resulted in the employee's
exoneration.
Note. With regard to allegations disclosed to a
prosecuting office under this paragraph, the head of the
prosecuting office shall ensure that special care is taken to
protect the confidentiality of such information and the privacy
interests and reputations of agency employee- witnesses, in
accordance with paragraph 13 below. At the conclusion of the
case, if such information was not disclosed to the defense, the
head of the prosecuting office shall ensure that all materials
received from an investigative agency regarding the allegation,
including any and all copies, are expeditiously returned to the
investigative agency. This does not prohibit a prosecuting office
from keeping motions, responses, legal memoranda, court orders,
and internal office memoranda or correspondence, in the relevant
criminal case file(s).
- Prosecuting Office Records.
Department of Justice prosecuting
offices shall not retain in any system of records that can be
accessed by the identity of an employee, potential impeachment
information that was provided by an agency, except where the
information was disclosed to defense counsel. This policy does
not prohibit Department of Justice prosecuting offices from
keeping motions and Court orders and supporting documents in the
relevant criminal case file.
- Copies to Agencies.
When potential impeachment information
received from Agency Officials has been disclosed to a Court or
defense counsel, the information disclosed, along with any
judicial rulings and related pleadings, shall be provided to the
Agency Official that provided the information and to the employing
Agency Official for retention in the employing agency's system of
records. The agency shall maintain judicial rulings and related
pleadings on information that was disclosed to the Court but not
to the defense in a manner that allows expeditious access upon the
request of the Requesting Official.
- Record Retention.
When potential impeachment information
received from Agency Officials has been disclosed to defense
counsel, the information disclosed, along with any judicial
rulings and related pleadings, may be retained by the Requesting
Official, together with any related correspondence or memoranda,
in a system of records that can be accessed by the identity of the
employee.
- Updating Records.
Before any federal prosecutor uses or relies
upon information included in the prosecuting office's system of
records, the Requesting Official shall contact the relevant Agency
Official(s) to determine the status of the potential impeachment
information and shall add any additional information provided to
the prosecuting office's system of records.
- Continuing Duty to Disclose.
Each agency plan shall include
provisions which will assure that, once a request for potential
impeachment information has been made, the prosecuting office will
be made aware of any additional potential impeachment information
that arises after such request and during the pendency of the
specific criminal case or investigation in which the employee is a
potential witness or affiant. A prosecuting office which has made
a request for potential impeachment information shall promptly
notify the relevant agency when the specific criminal case or
investigation for which the request was made ends in a judgment or
declination, at which time the agency's duty to disclose shall
cease.
- Removal of Records Upon Transfer, Reassignment, or Retirement of
Employee.
Upon being notified that an employee has retired,
been transferred to an office in another judicial district, or
been reassigned to a position in which the employee will neither
be an affiant nor witness, and subsequent to the resolution of any
litigation pending in the prosecuting office in which the employee
could be an affiant or witness, the Requesting Official shall
remove from the prosecuting office's system of records any record
that can be accessed by the identity of the employee.
- Prosecuting Office Plans to Implement Policy.
Within 120 days of
the effective date of this policy, each prosecuting office shall
develop a plan to implement this policy. The plan shall include
provisions that require: (a) communication by the prosecuting
office with the agency about the disclosure of potential
impeachment information to the Court or defense counsel, including
allowing the agency to express its views on whether certain
information should be disclosed to the Court or defense counsel;
(b) preserving the security and confidentiality of potential
impeachment information through proper storage and restricted
access within a prosecuting office; (c) when appropriate, seeking
an ex parte, in camera review and decision by the Court regarding
whether potential impeachment information must be disclosed to
defense counsel; (d) when appropriate, seeking protective orders
to limit the use and further dissemination of potential
impeachment information by defense counsel; and, (e) allowing the
relevant agencies the timely opportunity to fully express their
views.
- Investigative Agency Plans to Implement Policy.
Within 120 days
of the effective date of this policy, each of the investigative
agencies shall develop a plan to effectuate this policy.
[updated October 2006]
9-5.110
Testimony of FBI Laboratory Examiners
|
In situations where FBI laboratory examinations have resulted in
findings having no apparent probative value, yet defense counsel intends to
subpoena the examiner to testify the United States Attorney (USA) should
inform defense counsel of the FBI's policy requiring payment of the
examiner's travel expenses by defense counsel. The USA should also attempt
to secure a stipulation concerning this testimony. This will avoid needless
expenditures of time and money attendant to the appearance of the examiner
in court.
[updated December 2006]
9-5.150
Authorization to Close Judicial Proceedings to Members of the Press
and Public
|
Procedures and standards regarding the closure of judicial proceedings
to members of the press and public are set forth in 28 C.F.R.
§ 50.9. Government attorneys may not move for or consent to the closure of any
criminal proceeding without the express prior authorization of the Deputy
Attorney General.
There is a strong presumption against closing proceedings, and the
Department foresees very few cases in which closure would be warranted. Only
when a closed proceeding is plainly essential to the interests of justice
should a Government attorney seek authorization from the Deputy Attorney
General to move for or consent to closure of a judicial proceeding.
Government attorneys should be mindful of the right of the public to attend
judicial proceedings and the of the Department's obligation to the fair
administration of justice.
Any request for authorization to move for or consent to closure, in
addition to setting forth the relevant and procedural background, should
include a detailed explanation of the need for closure, addressing each of
the factors set forth in 28 C.F.R. § 50.9(c)(1)-(6). In
particular, the request should address in detail how an open proceeding will
create a substantial likelihood of danger to specified individuals; how
ongoing investigations will be jeopardized; or how a person's right to a
fair trial will be impaired. The request must also consider reasonable
alternatives to closure, such as delaying the proceeding, if possible, until
the reasons justifying closure cease to exist.
Whenever authorization to close a judicial proceeding is being sought
pursuant to 28 C.F.R. § 50.9 in a case or matter under the supervision
of the Criminal Division, the request should be directed to the Policy and
Statutory Enforcement Unit, Office of Enforcement Operations. In cases or
matters under the supervision of other divisions of the Department of
Justice, the appropriate division should be contacted.
Because of the vital public interest in open judicial proceedings, every
60 days after termination of any proceeding closed pursuant to 28 C.F.R.
§ 50.9, Government attorneys must review the records of the
proceedings to determine whether the reasons for closure still apply. As
soon as the justification for closure ceases to exist, the Government must
file an appropriate motion to have the records unsealed. See 28 C.F.R.
§ 50.9(f). While the Criminal Division monitors compliance with
this requirement, it is the affirmative obligation of the U.S. Attorney's
Offices to ensure that sealed records are reviewed in accordance with the
regulation's requirements. U.S. Attorney's Offices should acknowledge this
obligation in any request for authorization to move for or consent to
closure.
[new January 2007]
| | | | | | | | | | | |