DOJ Issues Discovery Guidance for Federal Prosecutors

Federal prosecutors today got a roadmap for handling discovery in criminal cases, guidance that stems from the failed prosecution of former Alaska Sen. Ted Stevens last year.

The Justice Department on Jan. 4 issued three memos--including a detailed guidance memo for all federal prosecutors--that set forth the steps the department has taken and will take to ensure that prosecutors assess and meet their obligations when it comes to sharing information with criminal defense lawyers. The memos from Deputy Attorney General David Ogden establish the minimum considerations for prosecutors in every case.

After the Stevens verdict was thrown out in April 2009 due to the failure of the trial team to turn over certain exculpatory documents to Stevens’ lawyers, the Justice Department put in place a working group to study discovery issues. The group looked at resources, training and policy guidance.

In one memo to department prosecutors, Ogden said the working group's survey showed discovery failures are rare considering the overall number of cases prosecuted. “This conclusion was not surprising and reflects that the vast majority of prosecutors are meeting their discovery obligations,” Ogden said.

“Any discovery lapse, of course, is a serious matter. Moreover, even isolated lapses can have a disproportionate effect on public and judicial confidence in prosecutors and the criminal justice system,” Ogden said. “Beyond the consequences in the individual case, such a loss in confidence can have significant negative consequences on our effort to achieve justice in every case.”

The main guidance memo encourages “broad and early discovery” and directs prosecutors to “reasonably promptly” after discovery provide exculpatory information to the defense.

“Providing broad and early discovery often promotes the truth-seeking mission of the Department and fosters a speedy resolution of many cases. It also provides a margin of error in case the prosecutor’s good faith determination of the scope of appropriate discovery is in error,” according to the guidance memo.

In a memo directly to U.S. attorneys and heads of litigating divisions that handle criminal cases, Ogden directed each office to write up by March 31 a discovery policy with which all prosecutors in each office must comply. The policy, Ogden said, must reflect district and circuit precedent and address, among other things, the timing of disclosure and the disclosure of reports of interviews with testifying and nontestifying witnesses.

Each U.S. attorney’s office and litigating components have already named what Ogden called a “discovery coordinator.” The coordinators, Ogden said, are expected to provide discovery training to their respective offices.

In addition to the policy guidance, the Justice Department is planning to create an online directory of resources pertaining to discovery issues, a handbook on discovery and case management, and a mandatory training program for law enforcement agents. The department also wants to put back together its computer forensics working group to examine the problem of cataloging electronically stored information.

The working group sought comment from the Office of the Attorney General, the Attorney General’s Advisory Committee, the Criminal Chiefs Working Group, the Appellate Chiefs Working Group, the Professional Responsibility Advisory Office and the Office of Professional Responsibility.

Attorney General Eric Holder Jr. said in a statement that the new guidelines, coupled with increased training for prosecutors, will further the department’s duty not just to win cases but to do justice.

Lanny Breuer, assistant attorney general for the Criminal Division, has called the department's efforts a "comprehensive approach" to discovery reform.

Comments

[Beth]

Mike, I'm not aware of any "actually-enforceable" rules that pertain to defense attorneys or any efforts of defense attorneys to police themselves.

[Mike]

The "guidance" isn't enforceable in court. DOJ wants to prevent the Judiciary from promulgating actually-enforceable rules. Here's hoping that the Judicial Counsel sees this ruse for what it is - a cynical attempt on DOJ's part to prevent judges from actually applying rules to prosecutors.