Disclosure in the Modern Age
By Craig C. King, J.D.
On a dark, rainy night, a patrol officer on the midnight shift sits in his squad car. He uses his laptop to exchange e-mails with his dispatcher. His department-issued “smart phone” buzzes with an incoming text from another officer. He pauses to use his personal mobile phone to update his Facebook status and to “tweet” something witty about a DUI subject he just arrested.1 The officer then leaves a long, detailed voicemail concerning follow-up information for the detective on the upcoming shift. He sends an e-mail including the description of a subject in an earlier assault to the watch commander and updates the department’s crime blog accordingly. His squad car is a virtual electronic communications center, and the communications coming to and from that center may be discoverable.
The roots of the discovery process are found in the constitutional concepts of fundamental due process and confrontation.2 The discovery process effectively serves two purposes: It provides opportunity and fairness in allowing accused persons to access and investigate evidence against them and, in so doing, also may persuade them to negotiate a plea. The process also serves as a check against government power, consistent with and in the spirit of the U.S. Constitution.3
In the criminal context, discovery primarily fulfills obligations held by the government and essentially consists of four separate parts. These stem in the federal system from either statutes or from the Constitution in the form of U.S. Supreme Court rulings.4 This article will explore briefly those obligations and then examine how they apply to the technology used by police and prosecutors today.
Exculpatory Information - Brady
In July 1958, John Brady was 25 years old when he was arrested and charged with first-degree murder. His girlfriend, Nancy Boblit Magowan, a married woman, was pregnant with his child, and the couple needed cash. Desperate for money, John, along with Nancy’s brother Donald Boblit, decided to rob a bank. During the planning, Brady suggested the need for a getaway car, and the duo planned to steal the car of a mutual friend, William Brooks. Boblit and Brady seized Brooks’ car at gunpoint, struck him with a shot gun, and drove him to secluded field. They then walked Brooks to the edge of the woods where one of the men strangled him to death with a shirt.5
Once arrested, both men gave several statements to detectives. Brady consistently denied killing Brooks and claimed that Boblit committed the actual murder. Boblit did the same, giving several statements and claiming in all but one that Brady was the killer. In Boblit’s fifth statement, given on July 9th, he admitted that he strangled Brooks.6
The key issue in the case related more to penalty than guilt. Both men were convicted in separate trials of first-degree murder and sentenced to death. In Boblit’s trial, prosecutors used the July 9th confession to convict and justify his death sentence. That July 9th statement never was presented at Brady’s trial, and Brady’s lawyer was neither provided a copy nor was he even aware it existed until he read the transcript from Boblit‘s trial.7 Brady could never have been sentenced to death if the Boblit admission was known at trial.
The facts of Brady v. Maryland led the U.S. Supreme Court to place an affirmative constitutional duty on prosecutors to disclose exculpatory evidence to a defendant. Subsequent cases have extended this duty to law enforcement agencies, requiring them to notify the prosecutor of any potential exculpatory information.8 The Court held that withholding exculpatory evidence violates due process “where the evidence is material either to guilt or to punishment” and determined that under Maryland state law the withheld evidence could not have exculpated the defendant but was material to the level of punishment he would receive.9
Assistant General Counsel King is a legal instructor at the FBI Academy.
“Brady” and “Brady material” refer to the holding of the Brady case and the numerous state and federal cases that interpret its requirement that the prosecution disclose material exculpatory evidence to the defense. Exculpatory evidence is material if “there is a reasonable probability that his conviction or sentence would have been different had these materials been disclosed.” Brady evidence includes statements of witnesses or physical evidence that conflicts with the prosecution’s witnesses and evidence that result in the defense’s impeachment of the credibility of a prosecution witness.10 Courts take these obligations seriously and have determined that, by definition, Brady violations by the government violate an individual’s 14th Amendment right to due process of law, a cornerstone of the American judicial system.11
Impeachment Material - Giglio
An expansion of the Brady Doctrine came from the U.S. Supreme Court in Giglio v. United States.12 In June 1966, bank officials at Manufacturers Hanover Trust Company discovered that a teller named Taliento had cashed several forged money orders. When questioned by the FBI, Taliento confessed that he had supplied Giglio with signature cards from one of the bank’s customers, which Giglio then used to forge $2,300 in money orders. Taliento then processed the forged money orders through the bank.13
An affidavit indicated that Assistant U.S. Attorney DiPaolo struck a deal with Taliento, promising that he would not be prosecuted for the crime if he testified against Giglio. Taliento testified before a grand jury, which resulted in Giglio’s indictment.
Two years after the indictment, Giglio’s trial was handled by a different prosecutor, Assistant U.S. Attorney Golden. DiPaolo did not inform Golden of the deal struck with Taliento, and Taliento assured Golden prior to the commencement of the trial that no such deal had been made.
In addition, the U.S. attorney personally consulted with both Taliento and Taliento’s attorney prior to trial and emphasized that Taliento definitely would be prosecuted if he did not testify, but that if he did testify, whether he was prosecuted would depend on the “good judgment and conscience of the government.”14 Giglio was found guilty and sentenced to 5 years in prison. While his appeal was pending, his counsel discovered evidence of the government’s discussions with Taliento.
In Giglio’s case, the U.S. Supreme Court found that regardless of whether the failure to disclose the discussions between DiPaulo and Taliento was intentional or negligent, disclosing the information remained the responsibility of the prosecutor as spokesman for the government and that a promise made by one attorney on the case must be attributed to the government. The Court noted that the government’s case relied almost entirely on Taliento’s testimony, and, without it, there could have been no indictment or evidence to take to a jury. The Court found that this made Taliento’s credibility an important issue; any evidence of an agreement or understanding with respect to Taliento’s future prosecution was relevant to his credibility, and the jury was entitled to know about it. The Court held that due process required that Giglio be granted a new trial and reversed and remanded.15
Giglio and cases that followed have come to mean that derogatory information about the credibility of a government witness could be potentially exculpatory and is, therefore, Brady material. The ruling in Giglio was important enough to create its own category of discovery material, known now as “Giglio material.”16
Giglio material is routinely viewed as impeachment evidence, or information that could be used to impeach a government witness’ credibility.17 The Giglio disclosure obligation is applied to all government witnesses and not just limited to past convictions or formal reprimands.
Modern Giglio material includes information, such as bias or past instances where the witness’ veracity or candor has been called into question. Relationships with victims or animosity toward the defendant based on religion, ethnicity, race, gender, or sexual preference all have been cited as Giglio material.18 Internal investigations pending or resolved, substantiated reports of excessive use of force, corruption, and even the witness’ general reputation for truthfulness also fall into this category.19
“Agencies…should consult with prosecutors concerning the preservation and storage of e-communications.”
In light of decisions expanding this view of Giglio, prosecutors recognizing the sheer volume and questionable reliability of some of this type of information have moved to an “inverted funnel” approach to Giglio disclosure. In this regard, the prosecutor is informed of any potential Giglio matter, evaluates the weight and credibility of the information, and funnels the amount and type of information disclosed to the defense and further narrows by use of protective orders what information actually can be used in court.20
Prior Statements - Jencks
Born in Colorado Springs, Colorado, in 1918, Clinton Jencks was a labor organizer in New Mexico. In 1954, he was convicted of lying about being a member of the Communist Party of the United States. He starred in and had his story recounted in the 1954 film Salt of the Earth, which was banned at the time because many of those associated with the production, including Jencks, were known or alleged members of the Communist party.21
The U.S. government accused Jencks of falsely stating in an affidavit—required by law as he served as president of a labor union—that he was not a member of the Communist party. During the trial, two undercover FBI agents provided crucial testimony against Jencks. On cross-examination, the agents stated that they made regular oral and written reports to the FBI on the matters about which they testified. Attorneys for Jencks requested that the judge receive copies of those reports to review for possible impeachment information. The request was denied.22
In an opinion by Justice William J. Brennan, the U.S. Supreme Court held that “the criminal action must be dismissed when the government, on the grounds of privilege elects not to comply with an order to produce, for the accused’s inspection and for admission into evidence, relevant statements or reports in its possession of government witnesses touching the subject matter of the trial.” The holding in Jencks v. U.S. prompted Congress to pass the Jencks Act.23
The Jencks Act, Title 18, Section 3500, U.S. Code, requires the government (prosecutor) to produce a verbatim statement or report made by a current or prospective government witness (other than the defendant), but not until after the witness has testified. Jencks material comprises evidence used in the course of a federal criminal prosecution in the United States. It usually consists of documents relied upon by government witnesses who testify at trial. It is described as exculpatory, favoring the U.S. government’s prosecution of a criminal defendant. The act also covers other documents related to the testimony or relied upon by government witnesses at trial. Typically, it may consist of police notes, memoranda, reports, summaries, letters, or verbatim transcripts used by government agents or employees to testify at trial. After the government’s witness testifies, the court shall, upon motion of the defendant, order the government to produce any statement of the witness in its possession relating to the subject matter as to which the witness testified.24 It has become routine practice federally, to provide Jencks material prior to testimony.
Under the Jencks Act, a statement of a prosecution witness includes:
- written statements made by witnesses and signed or otherwise adopted or approved by them;
- a stenographic, mechanical, electronic, or other recording or a transcription of it, which substantially is a verbatim recital of an oral statement made by the witness to an agent of the government and recorded contemporaneously with the making of such an oral statement; or
- a statement, however taken or recorded, or a transcription of it made by the witness to a grand jury.
If the United States elects not to comply with an order of the court to deliver to the defendant a statement or portion of it as the court may direct, the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require the declaration of a mistrial.25
The Jencks Act has been characterized as intending to assure defendants of their right to confront their accusers under the Sixth Amendment. Its provisions are not a constitutional mandate. As a result, some state courts do not have Jencks requirements.26 In addition, the statements themselves may contain Brady and Giglio information regarding whether they must be produced consistent with Jencks.
Jencks material has been viewed as substantive information about a case that the witness has testified about. In the past, that type of information, as well as potential Brady and Giglio information, generally was found easily in official reports and memoranda. But, with the advent of modern technology, Brady, Giglio, and Jencks material may be hidden in the ether of cyberspace and, therefore, more difficult to find and identify. However, although harder to find and identify, it still is discoverable, and the solemn obligation to disclose remains.27
“While technology has made communication generally easier, this brings important considerations.”
Discovery and The “E Factor”
Anyone who has watched an episode of a modern television show depicting law enforcement has seen the impact of technology. Patrol vehicles now are connected to the Internet, as are the officers themselves with smart phones, GPS devices, and cameras. Police departments stay connected with officers, witnesses, citizens, and prosecutors through such electronic means as e-mail, SMS, Web sites, blogs, social networks, and text messages. These systems make communications faster, more reliable, easier, and constant. They allow for retrieval of information because most of these systems, by their electronic nature, store the information in some form of memory. Without a doubt, law enforcement has “taken the on ramp” to the information superhighway at full speed. However, the quest for faster, better, and more efficient communications sometimes has unintended consequences, particularly in the realm of discovery.
In a marijuana case also involving a firearm, the defendant, Cross, was picked out of a photo lineup. Shortly before testifying, the officer misplaced the actual photo array. The officer testified truthfully, but, because the array was created using a popular software program, the defense asked why he did not produce an electronic copy. The Court expressed disappointment in the government:
The electronic file would contain metadata, including its creation date and last modified date. [The officer’s] testimony was truthful, one would expect that the government would still attempt to locate the electronic file because the metadata would corroborate his testimony. Such corroboration is particularly important given the questionable assertions about the alleged identification and concerns regarding the authenticity of the array. Under these circumstances, [the officer’s] and the government’s failure to do so raises further suspicion.28
The Cross case demonstrates a key point: Police officers and prosecutors should be aware of the capabilities of the technology they use during an investigation. Courts expect law enforcement to think about things, such as metadata. Judges recognize the government’s eagerness to use metadata for its own purposes (e.g., demonstrating guilt), so they expect it to apply that standard to its discovery obligations.29
Not limited to police officers, when people use technology, particularly in the forms of e-mail and text messages, to communicate, those messages usually feature a conversational tone. E-mails and texts often take the place of the spoken word and may lack the
formality and professionalism of official communications. These electronic communications are stored and retrievable and, if Brady, Giglio, or Jencks material, they also are discoverable.
“…most of these systems, by their electronic nature, store the information in some form of memory.”
Former Prince George’s County, Maryland, school CEO Andre Hornsby was suspected of involvement in several kickback schemes. During the course of the investigation, the FBI developed a cooperator who agreed to wear a wire during a meeting with Hornsby, and she obtained incriminating statements. Afterwards, an FBI agent wrote an e-mail to the cooperator stating, “Congratulations. You really nailed a powerful man.” Later, the FBI agent was cross-examined for 3 hours concerning the nature of the agency’s and government’s relationship with the cooperator.30 The case resulted in a mistrial when the jury was unable to reach a verdict.
W.R. Grace & Company, which manufactured asbestos, and the townspeople of Libby, Montana, were involved in a civil matter over an alleged cancer cell.31 W.R. Grace also was accused in a criminal action where the company was charged with a 30-year conspiracy to defraud the government and endanger the residents of Libby.32
During the investigation, the FBI developed a source—an “insider.” The lead case agent communicated with the insider via e-mail. Recognizing some of those e-mail communications could be discoverable under Brady, Giglio, or Jencks, the prosecutor requested the FBI to provide the relevant e-mails. In response, the FBI provided the prosecutor with about 20 e-mails that seemed to fit into the Brady, Giglio, and Jencks categories.33
During cross-examination, the defense asked the insider about the number of e-mails exchanged with the government. The answer was some 200. The court concluded that the quantity of e-mails indicated a close relationship between the government and the witness and, therefore, was suggestive of a bias the insider held against the defendant.34
Armed with this suggestion, the defense argued that the relationship was too close, there was actual animus on the part of the witness toward the defendant, and the evidence of that animus, the 200 e-mails, should have been properly disclosed consistent with Giglio and Brady.35 The judge, apparently incensed by the failure of the government to properly disclose the e-mails, provided the following jury instruction:
You should consider any proof offered by [the witness] with skepticism. Prosecutors have…the affirmative responsibility to learn of any evidence favorable to the accused and to disclose such evidence in a timely manner so that it can be effectively used by the accused. The government has violated its solemn obligation and duty in this case by suppressing or withholding material proof pertinent to the credibility of [the W]. In evaluating [the witness’] testimony you should consider the bias that he has displayed toward W.R. Grace, his relationship with the prosecution team and the extent to which those matters may have influenced his testimony.36
One of the defense attorneys commented on the case:
In the course of the Grace Trial it became clear the Government had committed Brady violations. And the Brady violations related to e-mails, like four years of e-mail communications between the lead case agent and the government’s star witness cooperator. And at the time that those emails came to light, the lead prosecutor told the court that it had never occurred to him to produce those, and I believe him. So, that’s absolutely going forward for me, an area that I will focus on and I think that it’s important for defense practitioners generally to insist that the government review their own electronic communications for exculpatory material.37
The Need for Policy and Communication with Prosecutors
Given the explosion of electronic communications and their discovery potential, agencies should adopt policies with respect to creation and preservation and coordinate these with prosecutors. Policies should caution employees on the discovery implications of e-communications. Employees should assess the need to communicate by electronic means, as well as the appropriateness of the content of their communications.
Policies should address which types of e-communications have discovery implications and what steps to take to preserve them. For example, while certain logistical communications, such as sending a text informing a coworker of the time of a meeting, would not be problematic, other communications that contain substantive case-related information, such as a text describing the unreliability of a source, clearly has discovery implications.
Agencies also should consult with prosecutors concerning the preservation and storage of e-communications. The discovery obligation cannot be met if the material to be disclosed has not been preserved. Likely, courts will not be forgiving if law enforcement agencies have not made a good-faith effort to preserve communications they know may be discoverable. Preservation may entail storing the communication in its original state, such as in an electronic folder or, perhaps, printing the communication and placing it in the case file.
While technology has made communication generally easier, this brings important considerations. The government has a responsibility tied directly to the constitutional guarantee of due process to ensure that certain information is preserved and provided to the defense in a criminal prosecution. This applies to communications generated by electronic means. Law enforcement must remember that the content of the communication, not the form, determines its discoverability.
Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.
1 The use of Facebook and other social networking sites by officers and agencies will be addressed in an upcoming article in the FBI Law Enforcement Bulletin.
2 U.S. Constitution, Amendment V-VI, “speedy and public trial” and prohibition against deprivation of “life, liberty or property without due process of law.”
3 Rule 16, Federal Rules of Criminal Procedure (FRCP).
4 FRCP 16; Brady v. Maryland, 373 U.S. 83; 10 L.Ed. 2d 215; 83 S.Ct. 1194 (1963); Giglio v. U.S., 405 U.S. 150; 31 L.Ed. 2d 104; 92 S.Ct. 763 (1972); Jencks Act, 18 U.S.C. § 3500.
5 Stephanos Bibas, “The Story of Brady v. Maryland: From Adversarial Gamesmanship Toward the Search for Innocence?” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=763864 (accessed August 2, 2011).
8 Brady v. Maryland, 373 U.S. 83; 10 L.Ed. 2d 215; 83 S.Ct. 1194 (1963).
11 United States v. Agurs, 427 U.S. 97; 49 L.Ed 2d 342; 96 S.Ct. 2392 (1976).
12 Giglio v. U.S., 405 U.S. 150; 31 L. Ed. 2d 104; 92 S.Ct. 763 (1972).
16 Napue v. Illinois, 360 U.S. 150; 92 S.Ct. 763; 31 L.Ed. 2d 1217 (1959).
17 United States v. Bagley, 473 U.S. 667; 87 L.Ed. 2d 481; 105 S.Ct. 3375 (1985).
19 January 4, 2010, memo, Guidance for Prosecutors Regarding Discovery, issued by Deputy Attorney General David W. Ogden (“Ogden Memo”). http://www.justice.gov/dag/discovery-guidance.html
21 Internet Movie Database (IMDB), http://www.imdb.com/title/tt0047443/ (accessed August 2, 2011).
22 Jencks v. United States, 353 U.S. 657; 77 S.Ct. 1007; 1 L.Ed. 2d 1103 (1957).
24 Jencks Act, 18 U.S.C. § 3500.
26 Palermo v. United States, 360 U.S. 343 (1959).
27 FRCP 16; Brady v. Maryland, 373 U.S. 83; 10 L.Ed. 2d 215; 83 S.Ct. 1194 (1963); Giglio v. U.S., 405 U.S. 150; 31 L.Ed. 2d 104; 92 S.Ct. 763 (1972); Jencks Act, 18 U.S.C. § 3500.
28 United States v. Cross, 2009 WL 3233267 (EDNY).
30 United States v. Andre Hornsby (D.Md. 2007-08).
31 IMDB, http://www.imdb.com/title/tt0120633/ (accessed August 2, 2011).
32 United States v. WR Grace & Company (D. Mt. 2009).
34 Andrew D. Goldsmith, “Trends—Or Lack Thereof—In Criminal E-Discovery: A Pragmatic Survey of Recent Case Law,” United States Attorney’s Bulletin 59, no. 3 (May 2011).
36 United States v. WR Grace & Company (D. Mt. 2009).
37 “Sidebar: Reflections on the WR Grace Trial,” American Lawyer Magazine, http://www.law.com/jsp/tal/PubArticleTAL.jsp?id=1202433359449&Sidebar_Reflections_on_the_ WR_Grace_Trial&slreturn=1&hbxlogin=1 (accessed August 2, 2011).
“The truth is more likely to come out at trial if there has been an opportunity for the defense to investigate the evidence.”
William J. Brennan, U.S. Supreme Court Justice
“He has to. By law, you’re entitled. It’s called disclosure, you idiot! He has to show you everything, otherwise it could be a mistrial. He has to give you a list of all his witnesses, you can talk to all his witnesses, he’s not allowed any surprises.”
Mona Lisa Vito, My Cousin Vinny
“So one lesson I took away from the Grace trial, is that although the government routinely collects electronic information from other people, they have been very slow to recognize the potential discoverability of their own electronic communications,
they just don’t think about it.”
Carolyn Kubota, Defense Attorney, O’Melveny & Myers