- Discovery material: Material and information, including
evidence to be offered at trial, that each party in a criminal case is
obligated to provide to the opposing party in advance of trial pursuant to
Fed. R. Crim. P. 16 and the case law, including Brady v. Maryland,
373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).
- The discussion that follows in this chapter covers some very basic
legal principles, with which most prosecutors will already be very familiar,
as well as certain complex and developing areas of the law. It should be
read in the context of how those well-known issues should be viewed when
classified information, and therefore national security issues, are at stake
in a criminal case. The Criminal Division's Internal Security Section is
available to all Assistant United States Attorneys (AUSAs) for consultation
on these important matters.
- In pertinent part, Rule 16(a)(1) requires the government "(A) . . .
[to] disclose to the defendant . . . any relevant written or recorded
statement made by the defendant . . . within the possession, custody, or
control of the government, the existence of which is known, or by the
exercise of due diligence may become known, to the attorney for the
government;" and "(C) . . . [to] permit the defendant to inspect and copy .
. . papers, documents, photographs, tangible objects . . . which are within
the custody or control of the government, which are material to the
preparation of the defendant's defense or which are intended for use by the
government as evidence in chief.
- Prudential Search: A search of Intelligence Community (IC)
files, usually prior to indictment, for pre-existing intelligence
information undertaken because the prosecutor and the Department have
objective articulable facts justifying the conclusion that the files in
question probably contain classified information that may have an impact
upon the government's decision whether to seek an indictment and, if so,
what crimes and defendants should be charged in that indictment. A
prudential search should include a search for Brady material and
other information that would be subject to the government's post-indictment
discovery obligations. Upon an appropriate threshold showing of necessity
by the prosecutor, a prudential search may include a narrowly drawn
request for specific investigative leads to assist the prosecutor to reduce
or eliminate the relevance of classified information to his/her case.
- When is the prosecutor compelled to search for discovery material
within IC files?
- Whether the IC files must be reviewed for discovery material
in a particular criminal case is a function of several queries. The first
- Whether the IC has been an active participant in the investigation
or prosecution of the case.
- It is well-settled that a prosecutor must search at least the files
within the prosecutor's own office for Brady material. Giglio,
405 U.S. at 154. That affirmative obligation also applies to the files of
the investigative and other prosecutorial agencies that comprise the
"prosecution team" in a given case. United States v. Antone, 603
F.2d 566 (5th Cir. 1979). Prosecutors must be aware that the scope of their
duty to search is not measured by that of the prosecutor's personal
knowledge. Knowledge of discoverable information unknown to the prosecutor
but known to a law enforcement agent on the prosecution team may be imputed
the prosecutor. United States ex rel Smith v. Fairman, 769 F.2d
386, 391-92 (7th Cir. 1985) (knowledge of police ballistic report reflecting
inoperability of gun defendant ...charged with shooting at police officers
imputed to prosecutor); Cary v. Duckworth, 738 F.2d 875,878 (7th Cir.
1984)(knowledge of cooperation agreement between informant/witness and DEA
agents imputed to prosecutor).
- Some courts have advanced, as a theory for defining the membership
of the "prosecution team," the principle of "alignment." E.g.,
United States v. Brooks, 966 F.2d 1500, 1503 (D.C.Cir. 1992);
United States v. ex rel. Smith v. Fairman, 769 F.2d 386, 391 (7th
Cir. 1985). Under that theory, an investigative or prosecutive agency
becomes aligned with the government prosecutor when it becomes actively
involved in the investigation or the prosecution of a particular case. When
that occurs, the agency's files are subject to the same requirement of
search and disclosure as the files of the prosecuting attorney or lead
agency. E.g., United States v. Antone, 603 F.2d at 570 (in
joint Federal-state prosecution, knowledge of state agents assigned to case
will be imputed to the Federal agents and prosecutor United States v.
Burnside, 824 F. Supp. 1215, 1257-58 (N.D. Ill. 1993) (Federal prison
personnel's knowledge of government witness' drug use while in witness
protection program imputed to prosecutor).
- On the other hand, the mere fact that an agency has been solicited
to produce documents generated independently of the criminal case does not
necessarily result in the alignment of that agency with the prosecutor.
United States v. Polizzi, 801 F.2d 1543, 1553 (9th Cir. 1986)
(Federal prosecutor not attributed knowledge of two documents that state
agency failed to produce in response to request from Federal prosecutor).
For practical purposes, the alignment principle is merely another
articulation of the "prosecution team" argument and offers little additional
guidance to prosecutors and agencies seeking to define their discovery
obligations to a defendant prior to trial. Like the "prosecution team"
theory, alignment has been used less to determine in advance the necessary
scope of a prosecutor's search and more to establish an arbitrary point at
which a prosecutor will be held responsible after the fact for discoverable
information unknown to him before or during trial. Moreover, a government
agency does not necessarily fall into alignment with the prosecutor's
office, thus requiring a search of its files, simply because it is an agency
the same government and arguably could have exculpatory evidence
regarding the defendant. See United States v. Trevino, 556
prepared by probation office).
- When an IC component has actively participated in a criminal
investigation or prosecution -- that is, has served in a capacity that
exceeds the role of providing mere tips or leads based on information
generated independently of the criminal case -- it likely has aligned itself
with the prosecution and its files are subject to the same search as would
those of an investigative law enforcement agency assigned to the case. For
example, alignment likely exists where an intelligence agency has provided
information to a law enforcement agency or to the prosecution, which
information serves independently as a factual element in support of a search
warrant, arrest warrant, indictment, etc.
- Assuming that the IC had no active involvement in the criminal
investigation, when must the IC files nevertheless be included in a
prosecutor's discovery search?
- The question, stated more broadly, is, in addition to the agencies
immediately involved in a criminal case, what is the required scope of a
prosecutor's search for discoverable material? Some courts have answered
this query, in general, by holding that the government's search must extend
to sources that are readily available to the government and that, because of
the known facts and nature of the case, should be searched as a function of
fairness to the defendant. United States v. Perdomo, 929 F.2d 967,
970-71 (3d Cir. 1991); United States v. Auten, 632 F.2d 478, 481 (5th
Cir. 1980); United States v. Burnside, 824 F. Supp. 1215 (N.D. Ill.
- In the context of a defense demand for discovery, one court has held
that the breadth of such a duty is to be measured against a sliding scale.
United States v. Brooks, 966 F.2d 1500 (D.C. Cir 1992). Under
Brooks, the government is required to conduct a search if the
defendant has made an explicit request that certain files be searched, and
there is a non-trivial prospect that the examination of those files will
yield material exculpatory information. Id. at 1504. As the
connection between the case and the files that the defendant wants searched
becomes less clear, the court must increasingly weigh the burden that the
requested search will impose upon the government, and the violence that may
be done to the government's interest in limiting access to files containing
relevant information, against the prospect that the search will reveal
exculpatory information. Id.; United States v. Robinson, 585
F.2d 274, 280-81 (7th Cir. 1978 (en banc), cert.
denied, 441 U.S. 947 (1979).
- It follows that the broader the request and the greater the
difficulty to perform the requested search, the greater the requestor's
burden is to demonstrate that the search will be fruitful. Mere speculation
that a government file may contain Brady material is never sufficient
to meet that burden. United States v. Navarro, 737 F.2d 625, 631
(7th Cir. 1984).
- Assuming no demand for specific discovery, there remains the
question of when the prosecutor is nevertheless required to search IC files.
The relevant factors for answering that query are:
- whether the prosecutor has direct or reliable knowledge
of potential Brady and/or other discovery material in the
possession of the IC; or
- assuming no such knowledge by the prosecutor, whether there
nevertheless exists any reliable indication suggesting that the IC possesses
evidence that meets the Brady case law standard of materiality.
- A positive answer to either of these questions means that the
prosecutor "needs to know" and must conduct a suitable search of the IC
files. If both queries can be answered in the negative, there is no
justification for a search of IC files.
- In Brady, the Supreme Court held that a prosecutor's
suppression "...of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution." 373 U.S.
at 87. In United States v. Agurs, 427 U.S. 97 (1976), the Supreme
Court extended the rule announced in Brady to situations in which the
defense had made no specific request, but at most a general request for
- Under Agurs, materiality of particular information turned on
whether it pertained to perjured testimony at trial, would have been
responsive to a specific or general request from the defense, or, in the
absence of a request, should have been disclosed to avoid violating the
defendant's right of due process. Id. at 108. The Supreme Court
revisited and modified the Agurs materiality thresholds in United
States v. Bagley, 473 U.S. 667 (1985). In Bagley, the Court,
after agreeing that one standard of materiality should govern both the
"specific request" and the "no request" situations discussed in
Agurs, held that "...a constitutional error occurs, and the
conviction must be reversed, only if the evidence is material in the sense
that its suppression undermines confidence in the outcome of the trial."
Id. at 678. Thus, regardless of the specificity of the defendant's
request, after Bagley, the defendant seeking post-trial relief for
violation of Brady bears the burden of showing that the suppressed
evidence would have raised a reasonable doubt as to guilt. The
Bagley court also re-emphasized that Brady did not create a
constitutionally required right of discovery in favor of the defendant or
any obligation of the prosecutor to allow defense counsel to review his
files. Rather, the prosecutor need only disclose evidence favorable to the
accused that, if suppressed, would deprive the defendant of a fair trial.
Id. at 675. That necessarily does not include inculpatory evidence,
no matter how helpful such evidence might be to the defendant in preparing
his/her defense. See United States v. Polowichak, 783 F.2d
410, 414 (4th Cir. 1986). Nor is the government required to search for or
disclose to the defendant exculpatory evidence of which the defendant is
aware or should be aware. See United States v. Ramirez, 810
F.2d 1338, 1343 (5th Cir.), cert. denied, 481. U.S. 1072 (1987);
Gov't Of The Virgin Islands v. Martinez, 831 F.2d 46, 49-50 (3d Cir.
1987). However, the government should produce as Brady material the
transcript of its witness' prior testimony as a defendant if that testimony
is inconsistent with that witness' anticipated testimony as a government
witness. See United States v. Isgro, 974 F.2d 1091, 1093-95
(9th Cir. 1992).
- In Kyles v. Whitley, 115 S.Ct. 1555 (1995), the Supreme
Court, reversing a murder conviction, defined the Bagley test as
follows: "Bagley held that regardless of request, favorable evidence
is material, and constitutional error results from its suppression by the
government, if there is a reasonable probability that, had the evidence been
disclosed to the defense, the results of the proceeding would have been
different." (Citations omitted.) Id. at 1565.
- In elaborating on the meaning of reasonable probability, the Court
Bagley's touchstone of materiality is a 'reasonable probability'
of a different result and the adjective is important. The question is not
whether the defendant would more likely than not have received a different
verdict with the evidence, but whether in its absence he received a fair
trial, understood as a trial resulting in a verdict worthy of
confidence. A 'reasonable probability' of a different result is
accordingly shown when the Government's evidentiary suppression
'undermines confidence in the outcome of the trial.' Bagley, 473
U.S. at 678, 105 S.Ct. at 3381.
. . . One does not show a Brady violation by demonstrating that
some of the inculpatory evidence should have been excluded, but by showing
that the favorable evidence could reasonably be taken to put the whole case
in such a different light as to undermine confidence in the verdict.
Id. at 1566.
- The Court, after defining the Bagley standard, stated the
While the definition of Bagley materiality in terms of the
cumulative effect of suppression must accordingly be seen as leaving the
government with a degree of discretion, it must also be understood as
imposing a corresponding burden. On the one side, showing that the
prosecution knew of an item of favorable evidence unknown to the defense
does not amount to a Brady violation, without more. But the
prosecution, which alone can know what is undisclosed, must be assigned the
consequent responsibility to gauge the likely net effect of all such
evidence and make disclosure when the point of "reasonable probability" is
reached. This in turn means that the individual prosecutor has a duty to
learn of any favorable evidence known to the others acting on the
government's behalf in the case, including the police. (Emphasis
added.) But whether the prosecutor succeeds or fails in meeting this
obligation (whether, that is, a failure to disclose is in good faith or bad
faith, see Brady, 373 U.S. at 87, 83 S.Ct. at 1196-1197), the
prosecution's responsibility for failing to disclose known, favorable
evidence rising to a material level of importance is inescapable.
- In summary, the government prosecutor's affirmative obligation to
search the IC files for Brady material is not triggered merely by the
defendant's (or the prosecutor's) speculation that such files contain
discoverable information. Nor is the government required to search the
files of every intelligence agency that conceivably,may have exculpatory
information. United States v. Trevino, 556 F.2d at 1270-72. On the
other hand, where there is an explicit request for discovery that has been
approved by the court, the scope of the search may have to be broadened. It
may not reasonably be confined to merely the prosecution team if there are
known facts that support the possible existence elsewhere of the requested
information. See, e.g., United States v. Brooks, 966 F.2d at
1504 (scope of government's search must include anywhere there is
non-trivial prospect of finding exculpatory information in response to
specific defense request); United States v. Perdomo, 929 F.2d at 970
(prosecutor may not be excused from providing discoverable information that
is readily available to it); United States v. Deutsch, 475 F.2d 55,
57 (5th Cir. 1973) (prosecutor cannot avoid disclosing personnel file of a
government employee/witness merely by avoiding actual possession of the
file), rev'd on other grounds, United States v. Henry, 749
F.2d 203 (5th Cir. 1984). But cf., United States v.
Sanchez, 917 F.2d 607 (1st Cir. 1990) (finding of harmless error where
AUSA was unaware of local police department's payments to FBI
informant/government witness and therefore did not provide them in
- Other discovery material.
- If the prosecutor has actual or implied knowledge that the IC files
contain Rule 16, Jencks, Brady, or Section 3504 materials, the
prosecutor must search the IC files.
- When a search of IC files is not constitutionally compelled or
merely prudent, are there other circumstances when a prosecutor must
initiate contact with the IC?
- An event which requires that contact with the IC is when the
prosecutor, whether pre- or post-indictment, acquires information that
suggests the defendant may have had, or as part of his/her defense at trial
will assert that he has had, contacts with the IC or with an intelligence
component of the LEC. The experience of recent prosecutions suggests that
the defense will likely be some derivative of the public authority defense
as recognized by Fed. R. Crim. P. 12.3. See 9-90.260. In these
circumstances, the prosecutor should assume that national security issues
will be implicated and ask his/her office's National Security Coordinator to
notify the ISS in accordance with 9-90.101 (the September 21, 1994,
memorandum by the DAG regarding National Security), and 9.90-103 (the May 5,
1995, memorandum by the DAG identifying focal points for contacts with the
IC), and USAM 9-90.210 (Contacts with the
Intelligence Community Regarding Criminal Investigations or Prosecutions).
- Other circumstances in which a prosecutor should consider
initiating a search of IC files.
- As a general rule, a prosecutor should not seek access to IC files
except when, because of the facts of the case, there is an affirmative
obligation to do so. There are, however, certain types of cases that may
fall outside of that rule in which issues relating to national security
and/or classified information are likely to be present, e.g., those
targeting corrupt or fraudulent practices by middle or upper officials of a
foreign government; those involving alleged violations of the Arms Export
Control Act or the International Emergency Economic Powers Act; those
involving trading with the enemy, international terrorism, or significant
international narcotics trafficking, especially that if they involve foreign
government or military personnel; and those in which one or more targets
are, or have previously been, associated with an intelligence agency. The
National Security Coordinators in each office should carefully educate the
prosecutors in their respective offices regarding cases that should be
proactively reviewed for a possible nexus to the IC.
- In these and similar cases, a careful consideration of the facts of
the case may lead a prosecutor to conclude that he/she should seek contact
through ISS with one or more of the components of the IC to initiate a
"prudential search," i.e., one based not upon a known duty to the defendant
or to a known nexus to national security matters but rather on the fact that
the case meets a certain profile of cases likely to implicate such issues.
Properly used, the prudential search will assist the prosecutor in
identifying and managing potential classified information problems before
indictment and trial. It may also permit the prosecutor to tailor the
indictment in a way that will reduce or eliminate the relevance of any
classified information, and thereby reduce or eliminate the likelihood of
having to face a "disclose-or-dismiss" dilemma after the indictment.
- The prosecutor must recognize that, with rare exceptions,
information gathered by the IC is not intended to support a criminal
prosecution, but rather to satisfy other needs of the intelligence
community's clientele, needs that are likely to be significantly divergent
from those of the prosecutor. Accordingly, law enforcement techniques to
ensure admissibility of evidence at trial will likely not have been used
by the intelligence officer. It follows that requesting the IC to search
its files will ordinarily not be done for the purpose of
obtaining evidence-in-chief. Rather, it will be done (1) to assist the
prosecutor in drafting his/her case to avoid implicating classified
sources and methods, (2) when legally necessary to ensure that the
prosecution team has met its legal obligations to an indicted defendant,
or (3) under certain circumstances, to provide investigative leads to
law enforcement for use in obtaining other admissible evidence.
- Classified Information Procedures Act (CIPA) Section 5 Notice
- Upon the filing of the defendant's CIPA section 5 notice, which
contains a brief description of the classified information the defendant
reasonably expects to disclose in connection with a trial or pretrial
proceeding, the prosecutor, in consultation with the ISS, must request the
intelligence agency, or law enforcement agency, whose information is at
issue, to review the Notice and conduct a search of its files to determine
if classified information is involved in the case.
[updated April 2002] [cited in USAM 9-90.210]