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Legal Issues: The Jencks Act and Discovery in Federal Criminal Cases


The term “discovery” in legal parlance refers to the process by which both sides in a case obtain evidence that their opponent intends to use during trial. In the arena of federal criminal cases, the government and defense are so obligated principally under Rule 16 of the Federal Rules of Criminal Procedure and a statute enacted by Congress in 1957 commonly referred to as the “Jencks Act.” (18 U.S.C. §3500) In essence, the Jencks Act provides that the government does not have to provide the defense with pre-trial statements by government witnesses until after such witness testifies on direct examination at trial. While, in my experience, the government typically provides such statements before the trial begins, it is not unusual for the defense to receive them as late as the Friday before a trial beginning the following Monday. I have spent a fair number of weekends prior to trial reading; collating and attempting to digest hundreds of pages of statements that I first saw at the close of business on a Friday. Obviously, this practice places the defense at a tactical and strategic disadvantage for trial, but it also, in my view, compromises a defense attorney’s ability to provide complete and adequate pre-trial advice to a client as to the risk/reward of a trial versus a plea agreement. In light of two relatively recent U.S. Supreme Court decisions that have extended a criminal defendant’s Sixth Amendment right to effective assistance of counsel to the pre-trial plea negotiation process (Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012) and Missouri v. Frye, 132 S.Ct. 1399, 1407 (2012)) I am of the view that government discovery practices that are based in whole or part on the Jencks Act violate that Constitutional right.

The background of the Jencks Act is steeped in the fervent anti-communism philosophy prevalent in America in the 1950’s. In this era where Hollywood artists; academics and others, including the U.S. Army, were under suspicion and investigation by the likes of Senator Joe McCarthy and the House Un-American Activities Committee, Clinton Jencks, a New Mexico labor union leader, was prosecuted by the government for making a false statement when he filed a required affidavit with the National Labor Relations Board certifying that he was not a communist. At his trial, the government presented two paid informants who had given statements to the F.B.I. that Jencks participated in Communist Party activities. The district judge refused his lawyer’s request that the government produce those statements; Jencks was convicted and on appeal, the Supreme Court reversed his conviction holding that he was entitled to the production of all oral and written statements by government witnesses related to their testimony at trial. (Jencks v. United States, 353 U.S. 658 (1957)) In a rare display of alacrity, Congress passed the Jencks Act by September 2, 1957 in response to that decision and it has defined the government’s obligation to provide witness statements ever since, despite numerous challenges in courts and substantial criticism in legal circles.

It is my view that the extension by the Supreme Court of the right to effective assistance of counsel to pre-trial plea negotiations presents an opportunity for a renewed challenge to the wisdom of continuing to permit the government to invoke the provisions of the Jencks Act and not provide critical evidence to the defense until the eve of trial, a time when, in many districts, it is too late to negotiate a plea agreement. It is inconsistent with any objective notion of fairness to, on the one hand, grant a defendant a Constitutional right to have an informed, competent attorney represent and advise him or her as to the relative merits of a plea agreement versus a trial and, on the other, permit the government at its sole discretion to withhold evidence (witness statements) that is arguably as crucial a category of evidence for counsel to investigate and assess as any other in an effort to provide effective advice and counsel.

Finally, balancing the government’s interest in non-disclosure against the defendant’s said right tips the scale decidedly in the defendant’s favor. In the relatively unusual circumstance where complete pre-trial disclosure to the defense could jeopardize the government’s or an individual’s security interests, a district court can fashion appropriate, case-specific safeguards. Continuing to permit the government to invoke the Jencks Act in most cases solely for the tactical advantage at trial that it achieves is unconscionable.

To address this issue, I have filed a motion to compel discovery, specifically witness statements, in one of my cases in the Northern District of Indiana. To date, it has been denied by the assigned magistrate and is pending review by the assigned district judge. If the ruling stands, I plan to appeal that ruling to the 7th Circuit Court of Appeals and will update any progress.

By Scott King
Scott King Group
Barrister Court
9211 Broadway
Merrillville, IN 46410

Posted: 7/17/2013

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