FEDERAL DISCOVERY - THE JENCKS ACT

by Brett Purtzer, Dec. 1996

            A client you have represented in the past calls you from the local jail stating that he has just been arrested and that an indictment has been handed down charging him with various federal drug offenses.  Upon contacting the U.S. Attorney involved and receiving a copy of the indictment, you note that the government alleges your client has been in a drug conspiracy for the past four years.  After speaking with your client and learning that he has provided a statement upon being arrested, you enter your Notice of Appearance and appear at the Arraignment.  After entering your plea of not guilty to the counts within the indictment, you also make a request for discovery pursuant to Federal Rules of Criminal Procedure 16 and local rule 48.  Being that this is your first Federal case, you expect to receive, a variety of police reports from all the investigating agencies.  Instead of receiving this information, however, you receive a copy of your client's statement.  When you ask the government to provide you all of the other witnesses statements, U.S. Attorney laughs and tells you had better research the Jencks Act.  Not wanting to sound too unintelligent, you ask him to spell Jencks for you.  Now that the U.S. Attorney realizes that you have no idea what he is talking about he not only spells Jencks for you, but gives you the citation which is set forth in 18 USC § 3500.

            The Jencks Act, which is codified at 18 USC § 3500, states as follows:

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.

            In Federal criminal prosecutions, the Jencks Act controls the pre-trial discovery of government witness statements.  But as noted within the statute, these recorded statements or reports must be provided to a defendant only after the witness has testified in direct examination in the trial of the case.  The term "statements" generally include any written statement made, signed, adopted or approved by the witness including Grand Jury transcripts.   Importantly, the Court cannot force the government to produce Jencks Act statements before the witness testifies.   

            One quasi exception to the Jencks Act would be pre-trial disclosure of Brady material.  In Brady v. Maryland, 373 US 83 (1963) the Supreme Court held that all evidence favorable to an accused must be disclosed upon request by the defense counsel.  Pursuant to Brady, the prosecutor has a duty to disclose all evidence favorable to the defendant which is material either to guilt or to punishment.  Such categories of evidence generally considered to be material are a witnesses prior record, witness statements favorable to the defendant, the existence of witnesses favorable to the defense, specific evidence which detracts from the credibility or probative value of testimony or evidence seized by the prosecution.  Because of the value of this evidence, be certain to request all the Brady material as soon as possible. 

            In conclusion, although the Federal discovery process is different than that in most state systems, the major difference is in the timing of your receipt of witness statements.  By following Federal Rule of Criminal Procedure 16 and local rule 48, and requesting all Brady material as early as possible you can insure that you will be prepared to represent your client at trial when the Jencks Act material arrives.