Office of the Attorney General
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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, Immigration and
Naturalization Service, 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 purpose of this
policy is to ensure that prosecutors receive sufficient information to
meet their obligations under Giglio v. United States, 405 U.S. 150
(1972), while protecting the legitimate privacy rights of Government
employees.(1)
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. 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
1. 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.
2. 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.
3. 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.
4. 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").
5. 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.
6. Treatment of Allocations 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).
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
(Signed) Janet Reno Attorney General
Date: 12/9/96
1. 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).