Mimesis Law
20 March 2019

A Critical Look At D.C. Circuit’s Proposed Criminal Disclosure Rule

Mar. 30, 2016 (Mimesis Law) — Recently, at Fault Lines, Josh Kendrick wrote about the war of words between Judge Kozinski and Judge Tallman, both of the Ninth Circuit, regarding alleged discovery abuses by prosecutors. That excellent and interesting post was followed by another Fault Lines piece, written by Andrew King, that thoughtfully articulated ways to avoid discovery abuses by prosecutors through the device of judge-made rules.

In this post, I examine the judge-made rule proposed by the United States District Court for the District of Columbia that will become effective on March 30, 2016 unless withdrawn by the district court* before then. It reads as follows:

PROPOSED DISCLOSURE RULE

(a)      Unless the parties otherwise agree, the government shall make available to the defense any non-trivial information known to the government that tends to negate the defendant’s guilt, mitigate the charged offense(s), or reduce the potential penalty. This requirement applies regardless of whether the information would itself constitute admissible evidence.  The information, furthermore, shall be produced, where not prohibited by law, in a readily usable form unless that is impracticable; in such a circumstance, it shall be made available to the defense for inspection and copying.

The government shall make good-faith efforts to promptly disclose the information to the defense beginning at the defendant’s initial appearance before the court, and this obligation shall remain ongoing throughout the criminal proceeding.

(b)      The information to be disclosed includes, but is not limited to:

(1)      Information that is inconsistent with or tends to negate the defendant’s guilt as to any element, including identification, of the offense(s) with which the defendant is charged;

(2)      Information that tends to establish an articulated and legally cognizable defense theory or recognized affirmative defense to the offense(s) with which the defendant is charged;

(3)      Information that casts doubt on the credibility or accuracy of any evidence, including witness testimony, the government anticipates using in its case-in-chief at trial; and

(4)      Impeachment information, which includes: (i) information regarding whether any promise, reward, or inducement has been given by the government to any witness it anticipates calling in its case-in-chief; and (ii) information that identifies all pending criminal cases against, and all criminal convictions of, any such witness.

(c)      As impeachment information described in (b)(4) is dependent on which witnesses the government intends to call at trial, this rule does not require the government to disclose such information before a trial date is set.

(d)      In the event the government believes that a disclosure under this rule would compromise witness safety, national security, a sensitive law-enforcement technique, or any other substantial government interest, it may apply to the Court for a modification of the requirements of this rule.

(e)      For purposes of this rule, the government includes federal, state, and local law- enforcement officers and other government officials participating in the investigation and prosecution of the offense(s) with which the defendant is charged.  The government has an obligation to seek from these sources all information subject to disclosure under this Rule.

(f)      The Court may set specific timelines for disclosure of any information mentioned in this rule.

Source: Home page of external web site for the United States District Court for the District of Columbia which may be found here (click on “Amended Notice of Proposed Local Rule and Opportunity to Comment” under “Announcements”) (last accessed March 25, 2016).

Here are my thoughts about the proposed rule:

Like Andrew, I favor rules, particularly for prosecutors and specifically in the context of Brady and Giglio issues. I also favor a rule for criminal discovery more generally. The proposed rule does a decent job of addressing those matters. It is short (which is nice) and plainly written (which is even better).

But, just as too many cooks spoil the stew, too many rules confuse the hell out of practitioners and judges alike. Federal prosecutors are already bound by Title 9-5.001 of the U.S. Attorneys’ Manual entitled “Policy Regarding Disclosure of Exculpatory and Impeachment Information.” See also David W. Ogden,  Deputy Attorney General, MEMORANDUM FOR DEPARTMENT PROSECUTORS, Guidance for Prosecutors Regarding Criminal Discovery (January 4, 2010).

Title 9-5.001 does a very good job of addressing all of the legitimate concerns of Judge Kozinski and the defense bar. See, e.g., Zoe Tillman,  Justice Department Rebuts Judge Kozinski’s Criticism of Prosecutors, National Law Journal (November 16, 2015) (discussing the November 4, 2015 letter to the Georgetown Law Journal written by Andrew D. Goldsmith, Associate Deputy Attorney General  and National Criminal Discovery Coordinator, and John F. Walsh, United States Attorney for the District of Colorado and Chair of the Attorney General’s Advisory Committee).

If the rule proposed by United States District Court for the District of Columbia is in all (or most) respects similar to the obligations imposed by Title 9-5.001 (and I think it is), why guild the lily? If it is in some way substantially more expansive than 9-5.001, in what way is it substantially more expansive and why is such an expansion both appropriate and necessary?

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Don’t misunderstand me. If the D.C. District Court is okay with Title 9-5.001, then the court should simply order government prosecutors to comply with it. In that way, the court could more easily discipline offending prosecutors and “general deterrence” would be furthered by the additional hammer of a court order. But the potential for misunderstanding and confusion is heightened by the proposed rule when it is read, as a prosecutor must, in light of Title 9-5.001 of the Manual. Uncertainty and confusion serves nobody.

Lastly, it is arguable that the D.C. District Court lacks the power to adopt the rule to the extent that the proposed rule expands Federal Rule of Criminal Procedure 16 (regarding discovery), Federal Rule of Criminal Procedure 26.2 (regarding disclosure of witness statements) and the Jencks Act (18 U.S.C. § 3500, regarding the disclosure of witness statements). Pursuant to Federal Rule of Criminal Procedure 57(a), “local rule must be consistent with—but not duplicative of—federal statutes and rules adopted under 28 U.S.C. §2072.”

28 U.S.C. § 2702(a) states that: “The Supreme Court shall have the power to prescribe general rules of practice and procedure . . . for cases in the United States district courts (including proceedings before magistrate judges thereof) . . . .” 28 U.S.C. § 2702(b) states: “Such rules shall not . . . enlarge or modify any substantive right.”

When Rule 57(a) and 28 U.S.C. § 2702 are read together, one could argue that the propose rule, to the extent that it is intended as creating new defense rights, is inconsistent with and expands Federal Rule of Criminal Procedure 16, Federal Rule of Criminal Procedure 26.2 and the Jencks Act.  If that is so, the proposed rule is unlawful.

So, what do I ultimately conclude? The proposed rule should be rejected. Instead, a brief court order requiring prosecutors to comply with Title 9-5.001 of the U.S. Attorneys’ Manual is more appropriate.**

Richard G. Kopf
Senior United States District Judge (Nebraska)

*While the district court can implement the rule, it must forward the rule change to the judicial council of the circuit and the council may abrogate the rule. Federal Rule of Criminal Procedure 57(c).  If the government objects to the proposed rule, I can easily see the circuit judicial council nixing it for some of the reasons mentioned in the text and otherwise.

**The court could add a copy of Title 9-5.001 as an appendix to the order to make things perfectly clear. If that section of the Manual changes, the court could revisit the matter.

4 Comments on this post.

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  • Nicole Kaplan
    30 March 2016 at 1:18 pm - Reply

    I see two problems that currently exist. The first is the failure of prosecutors to recognize something as impeachment, which this rule would not cure. Prosecutors are trained to think of cases in a certain way, and filter their view of the evidence accordingly. This is human nature and not an inherent criticism of prosecutors. If an AUSA does not recognize something as Brady or Giglio material, they will not disclose it.

    The second problem is failure to enforce the rules we already have. I can think of one, and only one, case in recent memory where a court in my district excluded evidence due to failure to comply with Rule 16 obligations. It is common to receive dozens or even hundreds of pages of discovery right before trial.

    Early disclosure of Jencks material happens semi-regularly in my district and I wish it was more common. It can help make sense of a case, show the client the real weight of evidence against him and help facilitate resolution by plea when that is in the client’s best interest.

    But judges need to exclude evidence and sanction prosecutors for violations of the rules we have, and then we would see real change.

    • Richard G. Kopf
      30 March 2016 at 1:52 pm - Reply

      Nicole,

      I agree that providing late disclosure is a real problem. But it is cultural. Trial judges can change the culture by calling “Bull Shit.” Chewing ass in front of the jury often works to change the culture. Sanctions are not the only way.

      All the best.

      Rich Kopf

  • Paul
    30 March 2016 at 2:40 pm - Reply

    You really want the Court to delegate to the Justice Department the writing of discovery rules? And let the Justice Department change the rules whenever some Associate Attorney General thinks they give too much to the defense? Would you trust Bank of America to write the rules of bankruptcy procedure?

    • Richard G. Kopf
      30 March 2016 at 8:37 pm - Reply

      Paul,

      Actually, I prefer Wells Fargo. All the best.

      RGK