Discovery and Access To Evidence

DISCOVERY AND ACCESS TO EVIDENCE, 37 Geo. L.J. Ann. Rev. Crim. Proc.
334
37 Geo. L.J. Ann. Rev. Crim. Proc. 334
Georgetown Law Journal Annual Review of Criminal Procedure

2008
Annual Review of Criminal Procedure

Thirty-Seventh Edition
II. Preliminary Proceedings
DISCOVERY AND ACCESS TO EVIDENCE
Copyright © 2008 by Georgetown University and The Georgetown Law Journal
Government’s Constitutional Disclosure Duties. The Fifth and Fourteenth Amendments require the government to disclose
certain specific types of evidence to defendants.1068 For example, in Brady v. Maryland, the Supreme Court held that due
process requires the prosecution to disclose evidence favorable to an accused upon request when such evidence is material to
guilt or punishment.1069 In United *335 States v. Bagley, the Court held that evidence is material under Brady if there is a
reasonable probability that disclosure of the evidence would have changed the outcome of the proceeding. 1070 A “reasonable
probability” under Bagley is “a *336 probability sufficient to undermine confidence in the outcome.” 1071 When assessing
evidence’s materiality, the court must take into account the cumulative effect of the suppressed evidence in light of other
evidence, not merely the probative value of the suppressed evidence standing alone.1072
The government’s obligation to disclose favorable evidence under Brady covers exculpatory evidence1073 and information
that could be used to impeach *337 government witnesses.1074 In particular, an agreement with a government witness for
testimony in exchange for monetary compensation or favorable treatment in the criminal justice system should be disclosed
as impeachment evidence, especially where the witness’s testimony is an important part of the government’s case. 1075 The
government’s duty under Brady arises regardless of whether the *338 defendant specifically requests the favorable
evidence.1076 The Brady doctrine does not require the prosecution to disclose material impeachment information prior to the
entry of a guilty plea.1077 However, it is unclear whether the prosecution must disclose material exculpatory evidence under
Brady before a guilty plea is entered.1078
The government’s duty to disclose favorable evidence does not compel the government to draw and disclose inferences from
the evidence;1079 nor does the Brady doctrine mandate open file discovery.1080 The government need not disclose: *339 (1)
neutral, irrelevant, speculative, or inculpatory evidence;1081 (2) evidence available to the defense from other sources; 1082 (3)
evidence the defense *340 already possesses;1083 or (4) evidence the prosecutor could not reasonably be imputed to have
knowledge of or control over. 1084 Nevertheless, even when the prosecutor does not possess Brady material, he or she has a
duty to learn of any favorable evidence known to other government agents, including the police, who are involved in the
investigation.1085
*341 Although the government’s constitutional duty to disclose continues throughout the proceedings,1086 tardy disclosure of
Brady material does not itself constitute a Brady violation and will not result in sanctions unless the defendant can show a
reasonable probability that the delay changed the outcome.1087
Government’s Preservation Duties. The government has a limited duty to preserve *342 evidence. In California v.
Trombetta, the Supreme Court held that the Constitution requires the government to preserve evidence “that might be
expected to play a significant role in the suspect’s defense.” 1088 Such evidence must both “possess an exculpatory value that
was apparent before the evidence was destroyed”1089 and “be of such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means.” 1090 In Arizona v. Youngblood, the Court held that in cases
© 2012 Thomson Reuters. No claim to original U.S. Government Works. 1

DISCOVERY AND ACCESS TO EVIDENCE, 37 Geo. L.J. Ann. Rev. Crim. Proc. 334
involving evidence that is only potentially exculpatory, “[u]nless a criminal defendant can show bad faith on the part of the
police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”1091
*343 In Roviaro v. United States, the Supreme Court recognized the government’s privilege to withhold the identity of
informants.1092 The government must disclose informants’ communications that do not tend to reveal their identity. 1093
However, the privilege is qualified: courts must balance the public interest in protecting the source of information against the
defendant’s right to prepare a defense. 1094 Courts balancing these interests should consider “the crime charged, the possible
defenses, the possible significance of the informer’s testimony, and other relevant factors.” 1095 The Court in Rovario held
that “[w]here the disclosure of an informer’s identity ... is relevant and helpful to the defense ... or is essential to a fair
determination of a cause, the privilege must give way.” 1096 Thus, the government must disclose an informant’s identity if the
informant is a material witness 1097 or if the informant’s testimony is crucial to the defense. 1098 *344 The trial court may be
required to conduct an in camera inspection to determine whether Roviaro requires disclosure of the identity of an informant
who may be endangered.1099
*345 Roviaro’s balancing requirements are of an evidentiary, rather than constitutional, nature. 1100 Roviaro’s application is
thus limited to federal criminal cases and need not be implemented in preliminary proceedings where “guilt or innocence is
not at stake.”1101 Furthermore, late disclosure of an informant’s identity is not reversible error if the defendant suffers no
prejudice from the delay.1102
If an informant is called as a government witness, he or she generally must disclose his or her name and address, particularly
if credibility is an issue.1103 When a defendant properly requests the presence of an informant at trial, the government need
only make a reasonable effort to secure the informant’s appearance.1104
Government’s Statutory Disclosure Duties. In addition to its constitutional duty to disclose information favorable to the
accused, the federal government is required by Federal Rules of Criminal Procedure 12.1, 161105 and 26.2 to disclose other
information upon the defendant’s request.1106
Rule 16: Discovery and Inspection. Rule 16 allows the defendant to discover five types of information before trial: (1) the
defendant’s own oral, written, and recorded statements; (2) the defendant’s prior criminal record; (3) certain documents and
objects; (4) certain examination and test reports; and (5) the content *346 and bases of expert testimony upon which the
government intends to rely.1107
First, Rule 16 requires disclosure of the defendant’s statements. 1108 The conditions mandating this disclosure vary according
to the form in which such statements are issued and received. 1109 The “substance of any relevant oral statement made by the
defendant before or after arrest, in response to interrogation by a person the defendant knew was a government agent” 1110
must be disclosed and *347 made available “if the government intends to use the statement at trial.” 1111 A defendant’s written
statement or a recording of his or her oral statement 1112 must be disclosed upon request and made available for photocopying,
photographing, or inspection1113 if the statement is: (1) relevant;1114 (2) within the possession, *348 custody, or control of the
government;1115 and (3) known, or could be known with due diligence, by the prosecutor to exist.1116 In addition to the
defendant’s own writings and recorded statements, portions of any other written record “containing the substance of any
relevant oral statement”1117 of the defendant must be disclosed upon request only if such statement was made in response to
an interrogation1118 by an individual the defendant knew to be a government agent. 1119 *349 A defendant may also request
his or her recorded grand jury testimony relating to the charged offense. 1120 Organizational defendants are also entitled, upon
request, to obtain the same types of statements that an individual defendant is entitled to discover under Rules 16(a)(1)(A)
and 16(a)(1)(B)1121 if the government contends that the person making the statement was either (1) legally able to bind the
defendant regarding the subject matter of the statement because of his or her position, 1122 or (2) personally involved in the
alleged conduct constituting the offense and able to legally bind the defendant regarding that conduct.1123
Second, Rule 16 requires the government, upon request, to furnish a copy of the defendant’s criminal record. 1124
Third, the defendant may inspect, copy, or photograph 1125 books, papers, documents, data, photographs, tangible objects,
buildings, or places1126 within the *350 possession, custody, or control1127 of the government,1128 if those items are either
material to the defendant’s case, 1129 intended for use by the government in its *351 case-in-chief,1130 or owned by or

obtained from the defendant.1131

Fourth, the defendant may also inspect, copy, or photograph examination and test reports, 1132 including physical or mental
examination reports, that are within *352 the possession, custody, or control of the government, 1133 if they are material to the
preparation of the defendant’s case or intended for use in the government’s case-in-chief. 1134
Finally, Rule 16 requires the government, upon defendant’s request, 1135 to disclose its intent to rely on expert testimony in its
case-in-chief and to provide a written summary of the content and bases of such testimony. 1136 Such disclosure applies only
to witnesses the government intends to call and must be in the form of a written summary.1137
*353 Rule 16 does not permit a defendant to discover reports, memoranda, or other internal government documents prepared
by the government in connection with the investigation or prosecution of a case. 1138 Nor can a defendant discover statements
made by government witnesses,1139 except as otherwise provided by law.1140 A defendant charged with a capital offense,
however, may discover the identity of prospective government witnesses. 1141
The defendant’s request for discovery must be both timely1142 and specific.1143 Once the defendant makes a discovery
request, the government has a continuing duty to disclose any newly discovered information that satisfies the request. 1144
*354 Upon motion by the government, the district court may deny, restrict, or defer a particular discovery request. 1145 If it is
unclear whether a particular document is discoverable, the trial court should conduct an in camera review.1146 A trial court’s
decision to grant or deny a discovery request is not reversible on appeal absent a clear showing that the court abused its
discretion.1147
*355 The district court has broad discretion to sanction the government for failure to comply with discovery requests, but the
court should impose the least severe sanction that will accomplish prompt and full compliance with the court’s discovery
order.1148 In determining an appropriate sanction, the court should *356 consider: (1) the reasons for the government’s failure
to disclose, including any bad faith on the part of the government; 1149 (2) the extent to which the defendant is prejudiced by
the failure to disclose;1150 and (3) the feasibility of curing any prejudice *358 by granting a continuance.1151
*359 Rule 26.2: Production of Witness Statements. Under Rule 26.2, which incorporates the Jencks Act 1152 into the Federal
Rules of Criminal Procedure,1153 the defendant may discover a government witness’s pretrial statements 1154 after the witness
has testified on direct examination1155 if the statements are in the government’s possession 1156 and relate to the subject
matter of the witness’s *360 testimony.1157 The existence or nonexistence of Jencks Act statements is an issue of fact to be
determined by the district court.1158 A defendant’s request for Jencks Act statements must be timely 1159 and sufficiently
precise to identify the particular statements sought. 1160 Requests that are overly broad 1161 or made before the *361 witness
has testified1162 are invalid.
Witness statements that are subject to discovery under the Jencks Act include: (1) written statements that are signed or
otherwise adopted or approved by a witness; 1163 (2) substantially verbatim recordings or transcriptions of oral statements;
*362 1164 and (3) grand jury testimony.1165 Notes or summaries of notes taken by prosecutors or their agents during an
interview with a witness do not meet the Jencks Act’s requirements and are thus not discoverable. 1166 An agent’s summary of
a witness’s statements, however, may be covered by the Jencks Act and therefore subject to discovery if the agent testifies at
trial.1167 Some circuits have *363 held that corporate records,1168 tax returns,1169 and computer programs1170 are not Jencks
Act statements and therefore not subject to Rule 26.2 discovery.
If the government challenges a discovery request pursuant to Rule 26.2, the district court must inspect the disputed material
in chambers and redact any material that is not a witness statement or does not relate to the subject matter of the witness’s
testimony.1171 The district court must strike the government witness’s testimony or declare a mistrial if the government’s
failure to comply with a discovery order results in prejudice to the defendant. 1172 The defendant is not *364 prejudiced by the
government’s failure to disclose a witness’s Jencks Act statements unless the statements deviate from the witness’s trial
testimony or other available evidence.1173 Prejudice is difficult to prove on appeal. 1174 In determining whether loss or
destruction of an agent’s notes violates the Jencks Act, courts examine both the potential prejudice to the defendant 1175 and

the agent’s motivation *365 for destroying the notes.1176

Rule 12.1: Notice of Alibi. Rule 12.1 requires defendants, upon the government’s request, to provide written notice of their
intent to offer an alibi defense.1177 The government must then provide the defendant with the names, addresses, and phone
numbers of witnesses it intends to call at trial to establish the defendant’s presence at the scene of the offense or to rebut the
alibi evidence.1178 The government has a continuing duty to disclose this material before and during trial.1179 The court may
exclude the testimony of any government witness whose identity is not disclosed as required, 1180 except upon a showing of
good cause by *366 the government.1181
Defendant’s Statutory Disclosure Duties. Rules 12.1, 12.2, 16, and 26.2 require the defendant to disclose certain types of
information to the government. First, under Rule 12.1, a defendant who intends to rely on an-alibi defense must notify the
government within ten days of the government’s request for that information. 1182 The defendant must disclose the places
where he or she claims to have been and the names, addresses, and phone numbers of witnesses upon whom he or she will
rely to establish the alibi. 1183 The defendant has a continuing duty to disclose the identity of any newly discovered alibi
witnesses, both before and during trial. 1184 The court may exclude the testimony of any witness, other than the defendant,
whose identity is not disclosed as required. 1185 For good cause shown, the court may grant the defendant an exception to the
requirements of Rule 12.1(a)-(c).1186 Notice-of-alibi rules, such as Rule 12.1, do not violate the defendant’s Fifth
Amendment privilege against self-incrimination. 1187 Nevertheless, *367 a notice-of-alibi rule that does not impose a
reciprocal duty of government disclosure violates the defendant’s right to due process. 1188
Second, Rule 12.2 requires that defendants notify the government of any intent to rely upon an insanity defense or to
introduce expert testimony related to a mental condition.1189
Third, Rule 16 permits the government to discover three types of information: (1) documents and objects in the defendant’s
possession or control that the defendant intends to introduce in his or her case-in-chief; 1190 (2) examination and test reports in
the defendant’s possession or control that the defendant intends to introduce in his or her case-in-chief; 1191 and (3) the
defendant’s intent to rely on expert opinion testimony, including the content and bases of that testimony. 1192 However, Rule
16 does not allow the government to discover: (1) reports, memoranda, or documents prepared by the defendant or his or her
attorney in connection with the investigation or defense of the case; 1193 or (2) statements *368 made to the defendant or
defense attorney by a witness, potential witness, or the defendant. 1194
The defendant’s duty to disclose is not triggered until the government complies with the defendant’s discovery requests. 1195
Once the government has made a discovery request, the defendant assumes a continuing duty to promptly disclose newly
discovered information.1196 The defendant may also petition the district court for an order to deny, restrict, or defer the
government’s discovery requests.1197
Finally, under Rule 26.2, after a defense witness testifies on direct examination, the government may discover the witness’s
pretrial statements that are in the defendant’s possession and relate to the subject matter of the witness’s testimony. 1198
However, the government may not discover the defendant’s own statements under Rule 26.2, even if the defendant chooses to
testify at trial.1199
The district court may sanction the defendant for failure to comply with a discovery request. 1200 In Taylor v. Illinois, the
Supreme Court considered whether a state trial court’s exclusion of a defense witness’s testimony because of the defendant’s
failure to comply with discovery rules violated the defendant’s right to compulsory process. 1201 The Court ruled that
although the exclusion implicated the Sixth Amendment, the defendant did not have an unqualified right to present testimony
that violated the trial court’s rules of evidence and procedure.1202 The Court found that, under these extreme circumstances,
the trial court’s “vital *369 interest in protecting the trial process from the pollution of perjured testimony” outweighed the
defendant’s Sixth Amendment right to compulsory process.1203
Footnotes
106 However, “[t]here is no general constitutional right to discovery in a criminal case ... ‘the Due Process Clause has little to say
8 regarding the amount of discovery which the parties must be afforded.”’ Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (quoting

Wardius v. Or., 412 U.S. 470, 474 (1973)).
1069 373 U.S. 83, 87 (1963); see also Strickler v. Greene, 527 U.S. 263, 281-82 (1999) (Brady violation occurs when: (1) evidence is
favorable to accused because it is exculpatory or impeaching; (2) evidence was suppressed by the State, either willfully or
inadvertently; and (3) prejudice ensued). In Brady, the prosecutor failed to disclose a confession obtained from the defendant’s
accomplice after the defendant requested such statements. 373 U.S. at 84. Defendant was granted a new trial on the question of
punishment because the undisclosed confession was material to punishment; the issue of guilt was not retried because the
confession could not have been used to reduce the offense charged. Id. at 90-91.
1070 473 U.S. 667, 682 (1985) (plurality opinion) (Blackmun, J.); id. at 685 (White, J., concurring in part and concurring in the
judgment). In Bagley, the government did not disclose that it had promised payment in return for testimony against the defendant
to its two principal witnesses. Id. at 670-71. The Court held that the prosecution’s disclosure of both exculpatory and impeachment
evidence is subject to Brady’s materiality requirement. Id. at 676-77. See also Banks v. Dretke, 540 U.S. 668, 699 (2004)
(“[Defendant] must show a ‘reasonable probability of a different result.”’) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995));
see, e.g., Conley v. U.S., 415 F.3d 183, 191 (1st Cir. 2005) (undisclosed evidence that sole reliable eyewitness had sought hypnosis
to help him recall events was material because witness’s testimony was “linchpin” of government’s case); U.S. v. Gil, 297 F.3d 93,
103-05 (2d Cir. 2002) (undisclosed memorandum describing meeting was material because it supported defendant’s account of
meeting and prosecution stressed in trial that no evidence of meeting existed); Spicer v. Roxbury Corr. Inst., 194 F.3d 547, 560-61
(4th Cir. 1999) (undisclosed inconsistent statements of key witness were material because they indicated witness might not have
seen defendant); Graves v. Dretke, 442 F.3d 334, 344-45 (5th Cir. 2006) (undisclosed statements of main witness that he, and not
defendant, committed murder were material because statements were inconsistent with witness’s testimony in court); White v.
Helling, 194 F.3d 937, 943-45 (8th Cir. 1999) (undisclosed police notes were material because they suggested so strongly that
witness had been coached by police to identify defendant that the trial court might have excluded the identification altogether);
Silva v. Brown, 416 F.3d 980, 986-87 (9th Cir. 2005) (undisclosed full extent of plea agreement with crucial witness was material
because plea agreement prevented witness from being psychiatrically examined, casting doubt on his sanity); Scott v. Mullin, 303
F.3d 1222, 1232 (10th Cir. 2002) (undisclosed confession of government witness to committing murder for which defendant was
convicted was material); U.S. v. Arnold, 117 F.3d 1308, 1318 (11th Cir. 1997) (undisclosed tapes of one primary witness were
material because tapes contradicted witness’s trial testimony and the case was “close”); U.S. v. Cuffie, 80 F.3d 514, 518 (D.C. Cir.
1996) (undisclosed witness’s prior perjury in a similar case was material because it was “almost unique in its detrimental effect on
a witness’[s] credibility”). But see, e.g., U.S. v. Madori, 419 F.3d 159, 170-71 (2d Cir. 2005) (undisclosed evidence that
codefendant was cooperating with FBI immaterial because cooperation was in matter unrelated to crime for which defendant was
being tried); Lambert v. Blackwell, 387 F.3d 210, 253-54 (3d Cir. 2004) (undisclosed evidence immaterial because value of
disclosure was negligible in light of overwhelming evidence of guilt); Vinson v. True, 436 F.3d 412, 421 (4th Cir. 2006)
(undisclosed handwritten note mentioning potential alibi immaterial because there was substantial physical and forensic evidence
of defendant’s guilt); Miller v. Dretke, 431 F.3d 241, 251-55 (5th Cir. 2005) (undisclosed discrepancies between witness interviews
and trial testimony immaterial in penalty phase of capital trial because of overwhelming evidence, crimes’ brutal nature, and
defendant’s criminal history); Gillard v. Mitchell, 445 F.3d 883, 893-94 (6th Cir. 2006) (undisclosed ambiguous police report
immaterial because it did not contradict trial testimony and there was overwhelming evidence of defendant’s guilt); U.S. v.
Gillaum, 372 F.3d 848, 858 (7th Cir. 2004) (undisclosed report immaterial because it only corroborated part of defendant’s story
that was not directly relevant to crime charged); U.S. v. Conroy, 424 F.3d 833, 837-38 (8th Cir. 2005) (defendant’s undisclosed
statement to victim that police had granted defendant favorable treatment in the past immaterial because victim’s state of mind,
rather than statement’s veracity, was at issue); Barker v. Fleming, 423 F.3d 1085, 1096-1101 (9th Cir. 2005) (witness’s undisclosed
criminal record immaterial because, although record would have cast doubt on witness’s veracity, jury already had ample evidence
of witness’s untruthfulness when witness was caught lying on stand); U.S. v. LaVallee, 439 F.3d 670, 698-99 (10th Cir. 2006)
(undisclosed videotape showing victim cooperating with defendant day after alleged beating immaterial because videotape had
“little bearing” on alleged beating previous day); Moon v. Head, 285 F.3d 1301, 1311 (11th Cir. 2002) (undisclosed evidence
impeaching witnesses immaterial because it did nothing to bolster defense’s case); U.S. v. Toms, 396 F.3d 427, 437 (D.C. Cir.
2005) (undisclosed photo of backseat of defendant’s vehicle immaterial because prosecution’s case did not depend on exact

location of drugs in car).

Under Brady, the prosecution’s intent behind the suppression of evidence does not determine whether evidence is material or
whether the proceeding’s outcome would have changed. 373 U.S. at 87. Some circuits have stated, however, that government
suppression in bad faith may suggest that the evidence is material. See V.I. v. Fahie, 419 F.3d 249, 253 n.5 (3d Cir. 2005)
(government’s bad faith “probative of materiality” and has additional relevance in determining remedy); U.S. v. Jackson, 780 F.2d
1305, 1311 n.4 (7th Cir. 1986) (government’s bad faith attempt to suppress evidence indicates that such evidence may be material).
1071 473 U.S. at 678, 682 (plurality opinion) (Blackmun, J.); see also Kyles v. Whitley, 514 U.S. 419, 434-35 (1995) (“The question is
not whether the defendant would more likely than not have received a different verdict with the [undisclosed] evidence, but
whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence .... [Defendant must
show] that the favorable evidence [withheld] could reasonably be taken to put the whole case in such a different light as to
undermine confidence in the verdict.”). In Banks v. Dretke, the Court applied Kyles and Strickler to a case in which the prosecution
did not disclose that one key witness was a paid government informant and that another witness had been coached by the
prosecution. 540 U.S. 668, 675 (2004). The Court held that “one can hardly be confident that [defendant] received a fair trial, given
the jury’s ignorance of [the withheld information].” Id. at 702.
1072 See Kyles v. Whitley, 514 U.S. 419, 436 (1995) (materiality under Bagley is evaluated in a distinct, cumulative analysis in which
“suppressed evidence [is] considered collectively, not item by item”); see, e.g., Gilday v. Callahan, 59 F.3d 257, 272 (1st Cir. 1995)
(no Brady violation because suppressed evidence, taken cumulatively, shed no new light on crime); Marshall v. Hendricks, 307
F.3d 36, 62-63 (3d Cir. 2002) (no Brady violation though prosecution suppressed immunity agreement and payments to witness’s
family because confidence in verdict not shaken if evidence viewed cumulatively); McHone v. Polk, 392 F.3d 691, 703 (4th Cir.
2004) (no Brady violation because, even when prosecution’s failure to disclose pretrial statements is viewed cumulatively, it was
only arguably favorable and certainly immaterial); Miller v. Dretke, 431 F.3d 241, 245-47 (5th Cir. 2005) (no Brady violation
despite suppression of witness statements and affidavits because cumulative effect of evidence would not have resulted in different
sentence during penalty phase of trial considering other evidence, brutal nature of crimes, and defendant’s criminal history); Barker
v. Fleming, 423 F.3d 1085, 1099-1100 (9th Cir. 2005) (no Brady violation despite failure to disclose witness’s 4 previous
convictions because cumulative effect of undisclosed evidence would only be to further impeach witness who was already
“thoroughly impeached” at trial); Newsted v. Gibson, 158 F.3d 1085, 1096-97 (10th Cir. 1998) (no Brady violation results from
cumulative effect of non-error and nonprejudical failure to disclose required evidence); Maharaj v. Sec’y for the Dep’t of Corr.,
432 F.3d 1292, 1309-10 (11th Cir. 2005) (no Brady violation despite failure to disclose key witness’s polygraph exam and multiple
pieces of evidence relating to victim because their cumulative effect was outweighed by ample evidence of motive and physical
evidence linking defendant to crime). But see, e.g., Kyles, 514 U.S. at 454 (Brady violation because cumulative value of
undisclosed evidence “would have entitled a jury to find that the eyewitnesses were not consistent in describing the killer, that two
out of the four eyewitnesses testifying were unreliable, that the most damning physical evidence was subject to suspicion, that the
investigation that produced it was insufficiently probing, and that the principal police witness was insufficiently informed or
candid”); U.S. v. Pelullo, 105 F.3d 117, 123 (3d Cir. 1997) (Brady violation because separate and cumulative effect of agents’ notes
and surveillance tapes could have been used to impeach prosecution’s key witnesses); Monroe v. Angelone, 323 F.3d 286, 315-17
(4th Cir. 2003) (Brady violation because cumulative effect of plea deals and inconsistent statements could have undermined
prosecution’s proof of premeditation and malice for first-degree murder charge); U.S. v. Sipe, 388 F.3d 471, 491-92 (5th Cir. 2004)
(Brady violation because cumulative effect of undisclosed statement, criminal history of witness, and benefit conferred to testifying
aliens undermined credibility of key witnesses); Castleberry v. Brigano, 349 F.3d 286, 294 (6th Cir. 2003) (Brady violation because
witness’s undisclosed description of assailant, statement regarding key witness’s involvement in crime, and various accounts of
suspicious activity near crime scene, taken together, indicated government witness might have been assailant); Smith v. Sec’y of
N.M. Dep’t of Corr., 50 F.3d 801, 834 (10th Cir. 1995) (Brady violation because suppressed evidence taken cumulatively could
have led to different result, even if some evidence was trivial standing alone); U.S. v. Lloyd, 71 F.3d 408, 413 (D.C. Cir. 1995)
(Brady violation because cumulative effect of undisclosed tax returns undermined confidence in verdict).

1073 Exculpatory evidence is evidence “favorable to an accused.” Bagley, 473 U.S. at 676, quoting Brady, 373 U.S. at 87; see, e.g.,
Bailey v. Rae, 339 F.3d 1107, 1114-15 (9th Cir. 2003) (therapist reports discussing whether victim was capable of understanding
and consenting to sexual advances exculpatory because key issue was victim’s capacity to consent); Gonzales v. McKune, 247
F.3d 1066, 1077 (10th Cir. 2001) (information about lack of sperm in semen sample collected from victim exculpatory even
though it did not conclusively exonerate defendant who did not have low sperm count), vacated in part on other grounds, 279 F.3d
922 (10th Cir. 2002). But see, e.g., U.S. v. Hansen, 434 F.3d 92, 103 (1st Cir. 2006) (evidence of conconspirator’s criminal
activities not exculpatory because activities were unrelated to crime charged); U.S. v. Brunshtein, 344 F.3d 91, 101 (2d Cir. 2003)
(evidence that government agents compiled list of properties to allegedly entrap defendant not exculpatory because defendant
only accused of paying bribes for different list of properties); Villasana v. Wilhoit, 368 F.3d 976, 979 (8th Cir. 2004) (laboratory
DNA test documents not exculpatory because, though they led defense to perform additional tests, government had no obligation
to perform those tests); U.S. v. Si, 343 F.3d 1116, 1123 (9th Cir. 2003) (identities of informants not exculpatory because they were
not involved in defendant’s case).
1074 Giglio v. U.S., 405 U.S. 150 (1972). In Giglio, the defendant discovered evidence post-trial that the government had failed to
disclose a promise of immunity made to the defendant’s coconspirator, the only witness. Id. at 150-51. Finding that the
government’s case “depended almost entirely” on the witness’s testimony, the Court reversed the conviction because “evidence of
any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of
it.” Id. at 154-55; see also U.S. v. Bagley, 473 U.S. 667, 676-77 (1985) (plurality opinion) (both impeachment evidence and
exculpatory evidence subject to Brady disclosure); see, e.g., Leka v. Portuondo, 257 F.3d 89, 104-08 (2d Cir. 2001) (off-duty
policeman’s undisclosed observations would have contradicted testimony of other witnesses); U.S. v. Pelullo, 105 F.3d 117, 123
(3d Cir. 1997) (FBI agent’s undisclosed notes and FBI surveillance tapes could have been used to impeach government witness
whose credibility was central to case); U.S. v. Kelly, 35 F.3d 929, 937 (4th Cir. 1994) (undisclosed search warrant affidavit
describing witness’s suspicious banking activity, secret security guard jobs, and cult membership could have impeached witness);
U.S. v. Sipe, 388 F.3d 471, 491-92 (5th Cir. 2004) (undisclosed benefits procured by 2 testifying aliens and another witness’s
statement about negative feelings toward defendant could have been used to impeach witnesses); Jamison v. Collins, 291 F.3d 380,
384-91 (6th Cir. 2002) (undisclosed documents could have been used to impeach key prosecutorial witnesses); U.S. v. O’Conner,
64 F.3d 355, 359-60 (8th Cir. 1995) (per curiam) (undisclosed attempt by witness to influence testimony of another witness could
have been used to impeach latter); Benn v. Lambert, 283 F.3d 1040, 1054-60 (9th Cir. 2002) (undisclosed facts that key witness
was drug user, lied to police, and “could not be trusted to follow departmental rules” were valuable impeachment evidence even
though prosecution disclosed that witness’s sentence had been reduced and his food and motel bills paid by State); Scott v. Mullin,
303 F.3d 1222, 1232 (10th Cir. 2002) (undisclosed confession of witness to having committed murder himself could have been
used to impeach witness and 3 other key witnesses whose interests were bound together); Jacobs v. Singletary, 952 F.2d 1282,
1287-89 (11th Cir. 1992) (undisclosed statements of witness to polygraph examiner were contrary to witness’s testimony at trial
and supported defendant’s claim of innocence); U.S. v. Cuffie, 80 F.3d 514, 518 (D.C. Cir. 1996) (undisclosed evidence of
witness’s prior perjury could have impeached witness, though witness had already been impeached on bases of cocaine addiction,
cooperation with prosecution, incentives to lie, and violation of oath as police officer). But see, e.g., U.S. v. Soto-Beniquez, 356
F.3d 1, 39-40 (1st Cir. 2003) (undisclosed lies to FBI by grand jury witness not impeachment evidence because witness did not
testify at trial, and defense knew 1 month before trial that witness lied and could have interviewed witness or had witness testify);
U.S. v. Madori, 419 F.3d 159, 170 (2d Cir. 2005) (undisclosed fact that key witness was informant not impeachment evidence
because reliability of witness was not “determinative of guilt or innocence”); U.S. v. Jordan, 316 F.3d 1215, 1256-57 (11th Cir.
2003) (undisclosed internal memo not impeachment evidence because its details contradicting testimony were frivolous).
1075 See Giglio, 405 U.S. at 154-55; see, e.g., Monroe v. Angelone, 323 F.3d 286, 314 (4th Cir. 2003) (Brady violation where
government failed to reveal leniency agreements with key witness and prosecution explicitly stressed absence of such deals in
closing statement); U.S. v. Boyd, 55 F.3d 239, 245-46 (7th Cir. 1995) (Brady violation where government failed to disclose favors
done for witnesses), vacated on other grounds, 531 U.S. 1135 (2001); U.S. v. Kojayan, 8 F.3d 1315, 1322-23 (9th Cir. 1993)
(Brady violation where government failed to reveal coconspirator’s plea agreement, lied about existence of agreement, foiled
defendant’s efforts to learn coconspirator’s whereabouts, and made misleading statements to jury). But see, e.g., Stockton v.

Murray, 41 F.3d 920, 927 (4th Cir. 1994) (no Brady violation where government failed to disclose witness’s letter stating that
testimony was conditioned on deal to reduce sentence because prosecutor never made such promise); Medellin v. Dretke, 371 F.3d
270, 281 (5th Cir. 2004) (no Brady violation where State dropped charge against witness, but there was only speculative evidence
that agreement existed); Williams v. Coyle, 260 F.3d 684, 708 (6th Cir. 2001) (no Brady violation where prosecutor said he would
consider witnesses’ cooperation in disposing of their cases, but no formal agreement was proved to have been reached, and jury
was aware of witnesses’ reasons for testifying); Mataya v. Kingston, 371 F.3d 353, 358 (7th Cir. 2004) (no Brady violation where
prosecution failed to disclose witness’s plea bargain because there was no prejudice to defendant); U.S. v. Lopez, 372 F.3d 1207,
1211 (10th Cir. 2004) (no Brady violation because defense could not show leniency deal existed, and thus there was nothing to
disclose); U.S. v. Curtis, 380 F.3d 1311, 1316 (11th Cir. 2004) (no Brady violation where government promised to assist witness in
sentencing in unrelated fraud case because assistance was disclosed to defense and no explicit deal existed).
1076 See U.S. v. Bagley, 473 U.S. 667, 682 (1985) (prosecution’s constitutional duty to disclose favorable evidence governed by
materiality standard and not limited to situations where defendant requests favorable evidence); Kyles v. Whitley, 514 U.S. 419,
433 (1995) (“[R]egardless of request, favorable evidence is material ....”) (citing Bagley, 473 U.S. at 682).
1077 See U.S. v. Ruiz, 536 U.S. 622, 629-33 (2002).
1078 Compare Orman v. Cain, 228 F.3d 616, 620 (5th Cir. 2000) (absent clear rule by the Supreme Court, state courts may decline
extending Brady obligation to guilty pleas because rule is intended to protect integrity of trials), U.S. v. Tucker, 419 F.3d 719, 721
(8th Cir. 2005) (Brady claim does not survive knowing and intelligent guilty plea), U.S. v. Nagra, 147 F.3d 875, 881-82 (9th Cir.
1998) (no Brady violation despite government’s nondisclosure of false statements made by government agents to defendant before
pleading guilty, because no proof that “but for” this information defendant would have gone to trial), and U.S. v. Walters, 269 F.3d
1207, 1216 (10th Cir. 2001) (government’s nondisclosure of impeachment evidence does not allow withdrawal of guilty plea if
there is no objective evidence that disclosure would have caused defendant to go to trial) with U.S. v. Avellino, 136 F.3d 249, 255-
58 (2d Cir. 1998) (knowing and voluntary guilty plea subject to challenge if Brady violation occurs; government’s obligation to
disclose Brady material is pertinent to determination of whether or not to plead guilty), McCann v. Mangialardi, 337 F.3d 782, 788
(7th Cir. 2003) (voluntariness of guilty plea can be challenged on Brady grounds if government withholds evidence of factual
innocence, but defendant failed to show government was aware of such evidence), White v. U.S., 858 F.2d 416, 422 (8th Cir. 1988)
(voluntariness of guilty plea can be challenged on Brady grounds), and U.S. v. Wright, 43 F.3d 491, 496 (10th Cir. 1994) (under
limited circumstances, Brady violation can render defendant’s guilty plea involuntary).
1079 See, e.g., Washington v. Murray, 952 F.2d 1472, 1484 (4th Cir. 1991) (no Brady violation despite failure to disclose semen analysis
showing defendant could not have been rapist, because prosecutor gave defendant lab reports containing raw data); U.S. v. Time,
21 F.3d 635, 642 (5th Cir. 1994) (no Brady violation despite failure to reveal witness’s cooperation with FBI because defendant
knew witness met with FBI for 45 minutes, could have cross-examined witness, and could have called other witnesses to obtain
information); U.S. v. Flores-Sandoval, 94 F.3d 346, 353 (7th Cir. 1996) (no Brady violation when government provided defendant
with all information on defendant’s payments to coconspirator, but did not suggest arguments to defense by disclosing
coconspirator’s theory that payments were not as large as defendant previously thought); Villasana v. Wilhoit, 368 F.3d 976, 979
(8th Cir. 2004) (no Brady violation where government disclosed lab reports that did not show semen, but did not provide
underlying lab test documents which, after defense analysis, led defense to conduct additional tests which ultimately created DNA
profile of attacker inconsistent with defendant).
1080 See Kyles v. Whitley, 514 U.S. 419, 437 (1995); see also Pa. v. Ritchie, 480 U.S. 39, 59-61 (1987) (defendant accused of child
abuse not entitled to conduct unsupervised search of child welfare agency’s confidential files, but defendant permitted to request
specific material information); see, e.g., U.S. v. Caro-Muniz, 406 F.3d 22, 30 (1st Cir. 2005) (no Brady violation where judge
rejected defense request to review 71 tape recordings because defendant failed to provide specific request or identify particular

exculpatory material); U.S. v. Dent, 149 F.3d 180, 191 (3d Cir. 1998) (no Brady violation where in-chambers inspection of
potential impeachment material in police officer’s personnel file revealed no Brady material); U.S. v. Sarihifard, 155 F.3d 301, 309
(4th Cir. 1998) (no Brady violation where judge’s in camera inspection of documents containing identities of confidential
informants revealed no Brady material); U.S. v. Dale, 374 F.3d 321, 326 (5th Cir. 2004) (no Brady violation despite failure to
disclose requested FBI forms because in-chambers inspection revealed no Brady material), vacated and remanded on other
grounds, 543 U.S. 1113 (2005); U.S. v. Cedano-Arellano, 332 F.3d 568, 570-72 (9th Cir. 2003) (no Brady violation because in-
chambers review of narcotics dog’s training logs revealed no Brady material); U.S. v. Mejia, 448 F.3d 436, 458 (D.C. Cir. 2006)
(no Brady violation where court’s in camera inspection of classified documents revealed no Brady material). But see, e.g., Love v.
Johnson, 57 F.3d 1305, 1314-15 (4th Cir. 1995) (Brady violation where judge failed to conduct in-chambers inspection of state
agency records after defendant made showing that records might contain favorable evidence); U.S. v. Alvarez, 358 F.3d 1194, 1209
(9th Cir. 2004) (Brady violation because judge failed to conduct in-chambers review of probation records of significant witnesses,
which might contain impeachment evidence).
1081 See U.S. v. Agurs, 427 U.S. 97, 109-10 & n.16 (1976) (suggesting state has no “obligation to communicate preliminary, challenged,
or speculative information”) (quoting Giles v. Md, 386 U.S. 66, 98 (1967) (Fortas, J., concurring)); see, e.g., U.S. v. Benjamin, 252
F.3d 1, 11-12 (1st Cir. 2001) (no Brady violation despite failure to disclose defendant’s handwriting samples because samples were
never analyzed or used as part of prosecution’s case); U.S. v. Amiel, 95 F.3d 135, 145 (2d Cir. 1996) (no Brady violation despite
failure to disclose that source had accused witness of being connected to organized crime and having committed several murders,
because such information was merely speculative; witness had been questioned, but not arrested, was not subject of any
investigation, and source had been discredited); Lambert v. Blackwell, 387 F.3d 210, 265 (3d Cir. 2004) (no Brady violation
despite failure to disclose discovery of rotted sneaker because police believed sneaker too old to be relevant to crime); Medellin v.
Dretke, 371 F.3d 270, 280-81 (5th Cir. 2004) (no Brady violation when government failed to disclose that charges against witness
were later dropped, because existence of plea agreement was purely speculative); U.S. v. Aguwa, 123 F.3d 418, 422 (6th Cir. 1997)
(no Brady violation despite failure to disclose agents’ notes because notes contained no exculpatory information and were highly
inculpatory); Carr v. Schofield, 364 F.3d 1246, 1255-56 (11th Cir. 2004) (no Brady violation where prosecution failed to disclose
its decision to pursue charges against 2 witnesses in juvenile instead of adult court, because there appeared to have been no deal,
and any deal would have been unenforceable because witnesses were tried before they testified against defendant); U.S. v. Weaver,
281 F.3d 228, 233 (D.C. Cir. 2002) (no Brady violation despite failure to disclose documents showing defendant was not
supervisor during particular month because that was not integral part of prosecution’s case).
Failure to disclose inadmissible information does not violate Brady when there is only “mere speculation” as to whether its
disclosure would have led to admissible evidence. Wood v. Bartholomew, 516 U.S. 1, 6 (1995) (failure to disclose inadmissible
polygraph examination did not violate Brady when defendant’s counsel admitted knowing about examination would not have
affected outcome of case). Circuits are split on whether the failure to disclose inadmissible information which could lead directly to
admissible evidence violates Brady. Compare Ellsworth v. Warden, N.H. State Prison, 333 F.3d 1, 5 (1st Cir. 2003) (assuming
without deciding that inadmissible evidence “could be so promising a lead to strong exculpatory evidence that there could be no
justification for withholding it”), U.S. v. Gil, 297 F.3d 93, 104 (2d Cir. 2002) (memo of questionable admissibility must be
disclosed if it “could lead to admissible evidence”), Bradley v. Nagle, 212 F.3d 559, 567 (11th Cir. 2000) (inadmissible information
received by police indicating people other than defendant committed murder in question must be disclosed if it “would have led the
defense to some admissible material exculpatory evidence), cert. denied, 531 U.S. 1128 (2001), with Hoke v. Netherland, 92 F.3d
1350, 1356 (4th Cir. 1996) (inadmissible evidence of rape and murder victim’s previous sexual relations immaterial for Brady
purposes) (citing Wood v. Bartholomew, 516 U.S. 1, 6 (1995)).
1082 See, e.g., U.S. v. Mercado Irizarry, 404 F.3d 497, 501 (1st Cir. 2005) (no Brady violation because diligent defendant could have
discovered exculpatory statement mentioned in multiple reported cases); U.S. v. Zagari, 111 F.3d 307, 320 (2d Cir. 1997) (no
Brady violation despite failure to disclose evidence that key prosecution witness had been diagnosed with mental disorders,
because defendants had actual knowledge of people who knew about witness’s condition and information about the mental illness
could have been obtained with due diligence); U.S. v. Pelullo, 399 F.3d 197, 215-16 (3d Cir. 2005) (no Brady violation despite
failure to disclose documents because defendant had sufficient access to them); U.S. v. Roane, 378 F.3d 382, 402 (4th Cir. 2004)

(no Brady violation despite prosecution’s failure to disclose witnesses’ statements regarding alibi because defendant knew who he
was with on night of crime); U.S. v. Infante, 404 F.3d 376, 387 (5th Cir. 2005) (no Brady violation despite failure to disclose key
witness’s motion requesting psychiatric evaluation of himself because information was a matter of public record); Spirko v.
Mitchell, 368 F.3d 603, 611 (6th Cir. 2004) (no Brady violation despite failure to produce all evidence of defendant’s alleged
accomplice’s alibi because evidence was available to defense from witnesses and defense was aware of essential facts necessary to
obtain evidence); U.S. v. Gonzalez, 319 F.3d 291, 297 (7th Cir. 2003) (no Brady violation despite failure to inform defendant of
presence of business card in his wallet because defense could and should have inspected wallet before it was admitted into
evidence); Liggins v. Burger, 422 F.3d 642, 654-55 (8th Cir. 2005) (no Brady violation despite failure to disclose videotape
because tape was broadcast on local evening news); U.S. v. Bracy, 67 F.3d 1421, 1428-29 (9th Cir. 1995) (no Brady violation
despite failure to disclose government witness’s criminal background in Florida and Wisconsin and witness’s cooperation with law
enforcement in those states because government provided computer printout and 2 reports sufficient for defense to discover
witness’s criminal history); U.S. v. Wolf, 839 F.2d 1387, 1391-92 (10th Cir. 1988) (no Brady violation despite failure to deliver
tissue samples because defendant received report listing samples and could have contacted coroner directly to obtain physical
evidence); LeCroy v. Sec’y, Fla. Dep’t of Corr., 421 F.3d 1237, 1267-68 (11th Cir. 2005) (no Brady violation despite failure to turn
over defendant’s medical and school records because defendant could have obtained his own records with reasonable diligence).
But see, e.g., U.S. v. Payne, 63 F.3d 1200, 1209-11 (2d Cir. 1995) (Brady violation where government failed to disclose affidavit
notwithstanding availability in public court file).
1083 See, e.g., U.S. v. Morales-Rodriguez, 467 F.3d 1, 15 (1st Cir. 2006) (no Brady violation for failure to disclose documents where
government allowed defense to conduct open file discovery of all documents in its possession); U.S. v. Paulino, 445 F.3d 211, 224-
25 (2d Cir. 2006) (no Brady violation for failure to reveal codefendant/father’s phone call to prosecutors where defendant had
prior knowledge that codefendant/father would seek to take sole responsibility for drugs found in defendant’s bedroom); Lambert
v. Blackwell, 387 F.3d 210, 265 (3d Cir. 2004) (no Brady violation despite prosecutor’s failure to disclose discovery of bag
because defense counsel saw bag on videotape of river search but did not think it relevant to case); Fullwood v. Lee, 290 F.3d 663,
685-86 (4th Cir. 2002) (no Brady violation despite failure to disclose defendant’s own statement to police because defendant knew
of it); Pippin v. Dretke, 434 F.3d 782, 789-90 (5th Cir. 2005) (no Brady violation despite suppression of prosecution’s ballistic test
results because defense ballistics expert had full access to bullets and conducted his own tests before trial); U.S. v. Banks, 405 F.3d
559, 564 (7th Cir. 2005) (no Brady violation where defendant knew prosecution relied on informant and defendant was able to
examine informant in suppression hearing); Spears v. Mullin, 343 F.3d 1215, 1256 (10th Cir. 2003) (no Brady violation despite
failure to turn over typewritten summary of audiotaped custodial statement because defense counsel listened to tape before trial).
1084 See, e.g., U.S. v. Hall, 434 F.3d 42, 55 (1st Cir. 2006) (no Brady violation despite failure to disclose full extent of witness’s
criminal history because information on history came from state court which was not involved in government investigation); U.S.
v. Skelly, 442 F.3d 94, 99-100 (2d Cir. 2006) (no Brady violation despite failure to disclose expert witness’s notes because
prosecution did not know of notes’ existence until after trial); Hollman v. Wilson, 158 F.3d 177, 181 (3d Cir. 1998) (no Brady
violation despite failure to disclose witness’s full criminal history because prosecution could not have known that clerical error
resulted in witness having 2 different criminal identification numbers); Vinson v. True, 436 F.3d 412, 421 (4th Cir. 2006) (no Brady
violation when government did not disclose relationship between key government witness and grand jury witness of which
prosecution was unaware); U.S. v. Jones, 399 F.3d 640, 647 (6th Cir. 2005) (no Brady violation when government did not disclose
misconduct of police department’s vice unit which was only discovered after case was remanded); U.S. v. Sanchez, 251 F.3d 598,
603 (7th Cir. 2001) (no Brady violation when government revealed agreement for lesser sentences in exchange for witnesses’
testimony, and after defendant’s trial, a judge reduced witnesses’ sentences even further); U.S. v. Rouse, 410 F.3d 1005, 1010 (8th
Cir. 2005) (no Brady violation where witness recantations happen only after trial); U.S. v. Shryock, 342 F.3d 948, 983-84 (9th Cir.
2003) (no Brady violation despite failure to disclose state agency debriefing of witness because prosecution did not have access to
state agency files and did not know whether debriefing occurred); U.S. v. Geames, 427 F.3d 1333, 1337 (10th Cir. 2005) (no Brady
violation where state charges against witness were filed 4 months after defendant’s trial concluded because federal authorities did
not know about crimes for which witness was later charged); Kelley v. Sec’y for the Dep’t. of Corr., 377 F.3d 1317, 1356 & n.39
(11th Cir. 2004) (no Brady violation despite failure to disclose Massachusetts order granting witness immunity because Florida

prosecution team was unaware of order).
1085 See Kyles, 514 U.S. at 437; see also Youngblood v. W.V., 547 U.S. 867, 869-70 (2006) (Brady claim for allegation that state
trooper suppressed material evidence); see, e.g., Crivens v. Roth, 172 F.3d 991, 997-98 (7th Cir. 1999) (Brady violation due to
failure to disclose witness’s criminal history, though witness used alias when arrested, because police should have performed
complete search on witness’s aliases); U.S. v. Blanco, 392 F.3d 382, 392 (9th Cir. 2004) (Brady violation when prosecution failed
to turn over informant’s immigration status and procurement of parole visa in exchange for cooperation with DEA); McMillian v.
Johnson, 88 F.3d 1554, 1568-69 (11th Cir.) (Brady violation when police concealed evidence favorable to defendant from
prosecutor), amended by 101 F.3d 1363 (11th Cir. 1996); In re Sealed Case No. 99-3096, 185 F.3d 887, 896 (D.C. Cir. 1999)
(Brady violation when U.S. Attorney’s office failed to conduct complete search of federal and local law enforcement agencies for
Brady material).
The prosecutor does not have a duty to discover and disclose information possessed by other federal or local agencies that have
no involvement in the investigation or prosecution at issue. See, e.g., U.S. v. Casas, 356 F.3d 104, 115-16 (1st Cir. 2004) (no Brady
violation where prosecution unaware of citizenship application evidencing witness’s perjury because application not in
prosecution’s control; prosecution had to obtain it from different government branch); U.S. v. Pelullo, 399 F.3d 197, 218 (3d Cir.
2005) (no Brady violation where prosecutor unaware of documents collected by Department of Labor in civil investigation
because department had no role in criminal investigation and not part of prosecution); U.S. v. Morris, 80 F.3d 1151, 1169 (7th Cir.
1996) (no Brady violation where prosecutor unaware of exculpatory evidence possessed by Office of Thrift Supervision, SEC,
and IRS because agencies not part of investigation or prosecution team); U.S. v. Hawkins, 78 F.3d 348, 351 (8th Cir. 1996) (no
Brady violation where Missouri prosecutor unaware of exculpatory information held by Illinois prosecutor); U.S. v. Velte, 331
F.3d 673, 680 (9th Cir. 2003) (no Brady violation where prosecutor unaware of weather station’s humidity report in forest fire
case, because weather station was not “acting on the government’s behalf”); U.S. v. Beers, 189 F.3d 1297, 1304 (10th Cir. 1999)
(no Brady violation where federal government unaware of impeachment evidence held by local and state police because there was
no evidence of federal participation in state investigation); Moon v. Head, 285 F.3d 1301, 1309-10 (11th Cir. 2002) (no Brady
violation where prosecution unaware of information held by Tennessee investigator because no evidence Tennessee law
enforcement and Georgia prosecutors worked together on case).
1086 See, e.g., Thomas v. Goldsmith, 979 F.2d 746, 749-50 (9th Cir. 1992) (prosecution has ongoing obligation to determine whether
semen sample is exculpatory).
1087 See, e.g., U.S. v. Perez-Ruiz, 353 F.3d 1, 8-9 (1st Cir. 2003) (no new trial despite belated disclosure of witness’s mental health
records because defense was able to impeach witness using other evidence); U.S. v. Romero, 54 F.3d 56, 61 (2d Cir. 1995) (no new
trial though government did not disclose accomplice’s repudiation of admissions before trial because recantation lacked credibility,
was presented to jury, and earlier disclosure would not have changed defense strategy); U.S. v. Price, 13 F.3d 711, 721-22 (3d Cir.
1994) (no new trial though government failed to disclose that 2 witnesses received payments, because their testimony was not
critical to case and defense questioned witnesses about benefits they hoped to receive); U.S. v. Collins, 415 F.3d 304, 310-11 (4th
Cir. 2005) (no new trial despite tardy disclosure of nontestifying witnesses’ identities because defendant failed to show informants
would have produced evidence favorable to defense); U.S. v. Walters, 351 F.3d 159, 169 (5th Cir. 2003) (no new trial where
prosecution gave notice of additional suspect 1 month before trial); U.S. v. Blood, 435 F.3d 612, 627 (6th Cir. 2006) (no new trial
despite nondisclosure that witness had previously assisted FBI because defense counsel elicited information at trial); U.S. v.
Turcotte, 405 F.3d 515, 530 (7th Cir. 2005) (no new trial despite government’s delayed disclosure of FDA documents because
defense had adequate time to review and use materials); U.S. v. Greatwalker, 356 F.3d 908, 911-12 (8th Cir. 2004) (no Brady
violation where agent’s handwritten notes were disclosed at trial, and not before, because defense was able to recall and cross-
examine witnesses after receiving the notes); U.S. v. Anderson, 391 F.3d 970, 975 (9th Cir.) (no Brady violation despite delayed
identification of 2 witnesses because defense secured their testimony at trial), amended by 391 F.3d 970 (9th Cir. 2004); U.S. v.
Bueno-Sierra, 99 F.3d 375, 379 (11th Cir. 1996) (per curiam) (no Brady violation despite belated disclosure of impeachment
material at trial because court allowed recess and additional cross-examination of government witness); U.S. v. White, 116 F.3d
903, 919 (D.C. Cir. 1997) (per curiam) (no Brady violation despite belated disclosure of impeachment information because

witness’s testimony stricken from record upon disclosure). But see, e.g., U.S. v. Gil, 297 F.3d 93, 106 (2d Cir. 2002) (new trial
warranted because government disclosed memorandum containing exculpatory and material information only 2 days before trial,
among 3,500 other documents, and memorandum not easily identified as document of significance); U.S. v. Fisher, 106 F.3d 622,
635 (5th Cir. 1997) (new trial warranted because government did not disclose report containing impeachment evidence of
government’s key witness until last day of trial and late disclosure precluded defense from making meaningful use of evidence);
Gantt v. Roe, 389 F.3d 908, 912 (9th Cir. 2004) (Brady violation because information discovered on last day of testimony should
have been disclosed to defense immediately).
1088 467 U.S. 479, 488 (1984) (footnote omitted). In Trombetta, the defendants argued that they were entitled to preservation of their
breath samples to impeach the results of an Intoxilyzer test. Id. at 483. The Court noted that the possibility of error in the breath
tests was “extremely low” and found that breath samples were more likely to be inculpatory than exculpatory. Id. at 489.
1089 Id. at 489; see, e.g., U.S. v. Ramos, 27 F.3d 65, 71 (3d Cir. 1994) (no due process violation where government destroyed agent’s
witness interview notes because government included all information in reports, examination of other interview notes revealed no
Brady material, and defendants offered only speculation as to notes’ exculpatory value); U.S. v. Newsome, 322 F.3d 328, 334 (4th
Cir. 2003) (no due process violation where government discarded stolen logs because there was no evidence logs had exculpatory
value); U.S. v. Thompson, 130 F.3d 676, 686 (5th Cir. 1997) (no due process violation where government discarded tape of
conversation because another preserved tape captured conversation); Monzo v. Edwards, 281 F.3d 568, 580 (6th Cir. 2002) (no
due process violation where police destroyed rape kit 2 years after crime because police had no suspects, so evidence was not
exculpatory at that time); Hubanks v. Frank, 392 F.3d 926, 931 (7th Cir. 2004) (no due process violation despite failure to
preserve semen sample because negative DNA test would not exculpate defendant when other assailant remained at large); U.S. v.
Farmer, 312 F.3d 933, 936 (8th Cir. 2002) (no due process violation where government destroyed firearm prior to fingerprinting
because jury found link between defendant and gun); U.S. v. Curtin, 443 F.3d 1084, 1094 (9th Cir. 2006) (no due process violation
where government discarded videotape from casino because tape had no exculpatory value), rev’d on other grounds, 489 F.3d 935
(9th Cir. 2007); U.S. v. Rolande-Gabriel, 938 F.2d 1231, 1238 (11th Cir. 1991) (no due process violation where government
discarded liquid in which cocaine was mixed; liquid had no exculpatory value because content was not relevant to sentencing and
defendant already pleaded guilty). But see, e.g., U.S. v. Cooper, 983 F.2d 928, 931 (9th Cir. 1993) (due process violation when
government destroyed laboratory equipment allegedly used by defendant to manufacture methamphetamine because equipment’s
possible exculpatory value was apparent after repeated suggestions to government agents that such equipment could not withstand
high temperatures required to make methamphetamine).
1090 Trombetta, 467 U.S. at 489. In Trombetta, the Court also found that other methods of challenging the test results existed, including
inspecting the machine and its records and introducing evidence of outside influences, such as chemicals or radio waves, that could
have affected the test. Id. at 490; see, e.g., DiBenedetto v. Hall, 272 F.3d 1, 13 (1st Cir. 2001) (no error where blood stain on
sneaker was destroyed during testing because test results were available to defendant); U.S. v. Haywood, 363 F.3d 200, 212 (3d
Cir. 2004) (no error where government discarded defendant’s shirt because photo of defendant in shirt upon arrest was introduced);
U.S. v. Newsome, 322 F.3d 328, 334 (4th Cir. 2003) (no error where government discarded stolen logs because defendant could
obtain information about them from photos, mill employees, and samples); U.S. v. Purkey, 428 F.3d 738, 747-48 (8th Cir. 2005)
(no error where prison guards destroyed defendant’s notes of meeting with investigators because defendant could testify as to his
own recollections of meeting); U.S. v. Rivera-Relle, 333 F.3d 914, 922 (9th Cir. 2003) (no error where government discarded
dispatch tape because defendant could cross-examine agents who testified about conversations on tape); U.S. v. Pearl, 324 F.3d
1210, 1215 (10th Cir. 2003) (no error where government discarded e-mail messages and computer hard drive because defendant
was able to obtain virtually all deleted messages from another computer).
1091 488 U.S. 51, 58 (1988). In Youngblood, the state failed to preserve semen samples from a rape victim’s body and clothing. Id. The
defendant’s principal defense was that the victim mistakenly identified defendant as the rapist and that the semen samples, if
properly preserved, would have exonerated defendant. Id. at 54-55. The Court upheld the conviction because there was no

suggestion of bad faith on the part of the police. Id. at 58; see, e.g., U.S. v. Garza, 435 F.3d 73, 75-76 (1st Cir. 2006) (no bad faith
where officer discarded videotapes and drugs to free lab space); U.S. v. Pirre, 927 F.2d 694, 697 (2d Cir. 1991) (no bad faith where
government discarded potentially exculpatory cocaine to free storage space); U.S. v. Tykarsky, 446 F.3d 458, 478 (3d Cir. 2006)
(no bad faith where government failed to preserve insignificant records of undercover agent’s online activities); Lovitt v. True, 403
F.3d 171, 187 (4th Cir. 2005) (no bad faith where court clerk destroyed evidence after trial without consulting prosecutor or
police); U.S. v. Thompson, 130 F.3d 676, 686 (5th Cir. 1997) (no bad faith where government destroyed duplicative tape
recording); Monzo v. Edwards, 281 F.3d 568, 580 (6th Cir. 2002) (no bad faith where government negligently destroyed rape kit
before suspect was identified); U.S. v. Chase Alone Iron Eyes, 367 F.3d 781, 786 (8th Cir. 2004) (no bad faith where police
negligently allowed destruction of urine-soaked mattress which might have shown gender of perpetrator); U.S. v. DeGeorge, 380
F.3d 1203, 1212 (9th Cir. 2004) (no bad faith where government discarded damaged yacht); U.S. v. Lavallee, 439 F.3d 670, 699
(10th Cir. 2006) (no bad faith where surveillance tape was destroyed per routine policy two years after it was recorded); U.S. v.
Brown, 9 F.3d 907, 910 (11th Cir. 1993) (per curiam) (no bad faith where government negligently destroyed revolver because it
was improperly labeled); In re Sealed Case, 99 F.3d 1175, 1178 (D.C. Cir. 1996) (no bad faith where police failed to keep drugs
found at defendant’s house separate from drugs found on defendant because police were unaware of potentially exculpatory nature
of separated evidence). But see, e.g., U.S. v. Bohl, 25 F.3d 904, 911-12 (10th Cir. 1994) (bad faith where government destroyed
steel “tower legs” after defendants notified government that tower legs were possibly exculpatory, defendants had evidentiary
support for their belief, legs were integral issue in case, and government offered no innocent explanation for destruction).
The government may not be responsible if it fails to prevent a third party from destroying potentially exculpatory evidence. See,
e.g., U.S. v. Sepulveda, 15 F.3d 1161, 1195 (1st Cir. 1993) (government not liable for destruction of phone records by defendant’s
housemate after government inspected records and returned them to housemate); U.S. v. Vap, 852 F.2d 1249, 1256 (10th Cir. 1988)
(government not liable for destruction of business records that were returned to third parties before defendant committed crime).
1092 Roviaro v. U.S., 353 U.S. 53, 59 (1957).
1093 See id. at 60.
1094 See id. at 62.
1095 Id.; see, e.g., U.S. v. Thomas, 348 F.3d 78, 85 (5th Cir. 2003) (no abuse of discretion by denying disclosure of informant’s identity
because government feared for informant’s safety, informant had no prior connection to defendant, and he was merely tipster
involved in meeting with third party); U.S. v. Straughter, 950 F.2d 1223, 1231-32 (6th Cir. 1991) (no abuse of discretion by
denying disclosure of identity because court determined, after in-chambers review of pertinent materials, that informant’s safety
would be jeopardized if identity was revealed); U.S. v. Edwards, 47 F.3d 841, 843-44 (7th Cir. 1995) (no disclosure of identity
required until immediately before testimony because witness faced substantial danger and defendants not prejudiced); U.S. v.
Napier, 436 F.3d 1133, 1137-39 (9th Cir. 2006) (no abuse of discretion by denying disclosure of informant’s identity because
government interest in keeping informer anonymous was paramount, court provided redacted versions of evidence, and offered to
conduct in camera interview with informant).
1096 353 U.S. at 60-61. But see, e.g., U.S. v. Bowser, 941 F.2d 1019, 1022 (10th Cir. 1991) (privilege not required to give way because
informant did not testify at trial and identity could not have been relevant to duress defense).
1097 See Roviaro, 353 U.S. at 64-65 (disclosure required because informant and defendant were sole participants in criminal transaction
and informant was only witness in position to amplify or contradict testimony of government witness); see, e.g., U.S. v. Price, 783
F.2d 1132, 1139 (4th Cir. 1986) (disclosure required because informant was active participant in deal and only person in position to
testify as to defendant’s participation in negotiations). But see, e.g., U.S. v. Flaharty, 295 F.3d 182, 202 (2d Cir. 2002) (no
disclosure required because value of informant’s testimony would have been minimal though he witnessed some meetings between

officer and defendant); U.S. v. Johnson, 302 F.3d 139, 149 (3d Cir. 2002) (no disclosure required because informant’s only
involvement in case was his introduction of undercover officer to defendant; informant not present during drug transaction); U.S. v.
D’Anjou, 16 F.3d 604, 609-10 (4th Cir. 1994) (no disclosure required because informant did not provide information regarding
defendant, defendant did not specify need for information, and revealing identity would have jeopardized current operation); U.S.
v. Sanchez, 988 F.2d 1384, 1391-92 (5th Cir. 1993) (no disclosure required because informant observed heroin transaction but did
not set up crime or lead police to crime scene); U.S. v. Jackson, 990 F.2d 251, 255 (6th Cir. 1993) (no disclosure required because
defendant not charged in relation to controlled sale to informant, informant not participant in conspiracy or possession offenses,
and informant not present at defendant’s arrest); U.S. v. Connors, 441 F.3d 527, 531 (7th Cir. 2006) (no disclosure of informant’s
identity required because, even if knowing informant’s identity could have helped defendant impeach key government witness,
possibly impeaching information did not relate to defendant’s guilt or innocence); U.S. v. Crenshaw, 359 F.3d 977, 1004-05 (8th
Cir. 2004) (no disclosure required because informant did not have first-hand knowledge of events); U.S. v. Mathis, 357 F.3d 1200,
1208 (10th Cir. 2004) (no disclosure of informants’ identities required when court conducted in camera hearing and determined
that informants’ identities were not relevant to defense); U.S. v. Gaston, 357 F.3d 77, 85 (D.C. Cir. 2004) (no disclosure required
because informant “not a participant in, or eyewitness to, those crimes”).
A mere tipster is not a material witness whose identity must be disclosed. See, e.g., U.S. v. Gomez-Genao, 267 F.3d 1, 2-3 (1st Cir.
2001) (no disclosure required because informant was merely tipster); U.S. v. Thomas, 348 F.3d 78, 85 (5th Cir. 2003) (no
disclosure of tipster’s identity required in narcotics case when tipster became mere observer after first meeting); U.S. v. Gonzalez-
Rodriguez, 239 F.3d 948, 951 (8th Cir. 2001) (no disclosure required because informant was mere tipster who conveyed
information to government but did not participate in offense); U.S. v. Gordon, 173 F.3d 761, 768 (10th Cir. 1999) (no disclosure
required because informant supplied only limited information regarding ticket purchase and defendant failed to show that
disclosure would contribute meaningfully to defense).
1098 See, e.g., U.S. v. Fields, 113 F.3d 313, 324 (2d Cir. 1997) (no abuse of discretion in withholding informant’s identity because in-
chambers interview of informant found no inconsistency with police testimony and no information helpful to defense); U.S. v.
Brown, 3 F.3d 673, 679 (3d Cir. 1993) (no abuse of discretion in withholding informant’s identity because defendant merely hoped,
without showing some likelihood, that identity would lead to testimony in support of motion to suppress); U.S. v. Mabry, 953 F.2d
127, 130-32 (4th Cir. 1991) (no abuse of discretion in withholding informant’s identity where defendant failed to show how
informant’s testimony might help defense); U.S. v. De Los Santos, 810 F.2d 1326, 1332-33 (5th Cir. 1987) (no abuse of discretion
in withholding informant’s identity because informant’s safety would be at risk, informant’s usefulness in several ongoing
investigations would be jeopardized, and informant’s testimony would not have aided defendant in establishing defense); U.S. v.
Jenkins, 4 F.3d 1338, 1340 (6th Cir. 1993) (no abuse of discretion in withholding informant’s identity where judge revealed and
allowed defense to use the one inconsistency between informant and police revealed by in camera interview). But see, e.g., U.S. v.
Feldewerth, 982 F.2d 322, 324 (8th Cir. 1993) (abuse of discretion in withholding informant’s identity because informant’s
accusations formed basis of claim that defendant breached government agreement to provide information about illegal
bookmaking).
1099 See, e.g., U.S. v. Saa, 859 F.2d 1067, 1072-75 (2d Cir. 1988) (failure to disclose informant’s identity was error, in absence of in-
chambers interview of informant in presence of defense counsel, though informant’s safety was endangered, because testimony
may have been material); U.S. v. Sharp, 778 F.2d 1182, 1187 (6th Cir. 1985) (court required to conduct in-chambers interview of
informant before ordering disclosure of identity because no evidence showed informant would substantiate defendant’s entrapment
defense); U.S. v. Lapsley, 263 F.3d 839, 843 (8th Cir. 2001) (court required to conduct in-chambers review to determine whether
informant’s identity must be disclosed if informant may be only person to corroborate defense); U.S. v. Moralez, 908 F.2d 565, 569
(10th Cir. 1990) (court required to conduct in-chambers hearing to determine whether informant’s identity must be disclosed if
defense believes informant’s testimony is essential to the defense); U.S. v. Rutherford, 175 F.3d 899, 902-03 (11th Cir. 1999) (court
required to conduct in-chambers hearing to determine nature of informant’s testimony and whether informant’s testimony is
material). But see, e.g., U.S. v. Valerio, 48 F.3d 58, 62-63 (1st Cir. 1995) (court not required to conduct in-chambers interview of
detective regarding informant’s identity because defendant had not carried burden of proving that warrant affidavits contained
falsehoods); U.S. v. Pitera, 5 F.3d 624, 628 (2d Cir. 1993) (court not required to conduct in-chambers hearing because government

represented that informant was not who defendant suspected and therefore no showing of need for informant’s identity); U.S. v.
Mendoza-Burciaga, 981 F.2d 192, 195 (5th Cir. 1992) (court not required to allow defense counsel to attend in-chambers interview
of informant because judge vigorously questioned government counsel and agents and allowed defense counsel to present
questions via tape recording); U.S. v. Jaramillo-Suarez, 950 F.2d 1378, 1386-87 (9th Cir. 1991) (court not required to conduct in-
chambers hearing or disclose informant’s identity because defendant merely speculated that search warrant contained false
statements or unsupported facts).
1100 See McCray v. Ill., 386 U.S. 300, 311 (1967). In McCray, the petitioner challenged the constitutionality of the state’s refusal to
disclose an informant’s identity in a preliminary probable cause hearing. Id. at 312. The Court explained that Roviaro articulated a
federal evidentiary rule which, even at the federal level, does not require disclosure of an informant’s identity at a preliminary
hearing. Id.
1101 Id. at 311.
1102 See, e.g., U.S. v. Perkins, 994 F.2d 1184, 1190 (6th Cir. 1993) (denial of defendant’s motion to disclose identity of informant prior
to trial not error because informant, who was mentioned in opening statement, testified, was extensively cross-examined, and no
prejudice resulted from delay); U.S. v. Salgado, 807 F.2d 603, 605 (7th Cir. 1986) (initial denial of defendant’s motion to disclose
identity of informant not reversible error because motion was eventually granted and there was no indication of prejudice); U.S. v.
Foster, 815 F.2d 1200, 1202-03 (8th Cir. 1987) (denial of defendant’s motion to disclose identity and location of informant prior to
trial not error because informant testified and was extensively cross-examined and there was no indication defendant would have
presented case differently).
1103 See Smith v. Ill., 390 U.S. 129, 131 (1968) (cross-examination of informant regarding name and address is essential to challenging
credibility). But see, e.g., U.S. v. Ford, 21 F.3d 759, 764 (7th Cir. 1994) (no disclosure of informant’s previous identity required for
impeachment purposes because it was collateral to guilt or innocence of defendant).
1104 See, e.g., U.S. v. Mora, 994 F.2d 1129, 1139 (5th Cir. 1993) (effort to locate was reasonable when agents visited informant’s home
and place of business and interviewed former lover); U.S. v. Sanchez, 429 F.3d 753, 755-57 (8th Cir. 2005) (efforts to locate
informant by providing defense with name and last known address, and sending U.S. marshals to search, were reasonable); U.S. v.
Muse, 708 F.2d 513, 515 (10th Cir. 1983) (government used reasonable efforts to produce informant by securing verbal consent
over telephone, sending subpoenas to 2 cities where informant was thought to be, and attempting to locate informant until evening
before trial); U.S. v. Suarez, 939 F.2d 929, 931-33 (11th Cir. 1991) (government exerted “reasonable effort” to secure informant’s
appearance by phoning last known home number, phoning informant’s beeper, visiting informant’s last known address, enlisting
assistance from other law enforcement agencies, and searching bars and restaurants informant frequented). But see, e.g., U.S. v.
Montgomery, 998 F.2d 1468, 1474-75 (9th Cir. 1993) (error in government’s failure to produce informant because government took
no action to locate informant or notify him that district court had ordered his presence for pretrial interview).
1105 See FED. R. CRIM. P. 16 advisory committee’s note. In 2002, Rule 16(a) was amended for stylistic purposes only. Because many
of the cases in this section were decided prior to the amendment, it may not be clear to which subsection of the amended rule a case
refers. Wherever possible, the citations indicate the appropriate subsection of the amended rule.
1106 FED. R. CRIM. P. 12.1 (a)-(e), 16(a)(1)-(3), 26.2(a)-(g).
1107 FED. R. CRIM. P. 16(a)(1)(A)-(G). Witness lists are usually not discoverable under Rule 16(a)(1)(G). See, e.g., U.S. v. Davis, 306

F.3d 398, 420 (6th Cir. 2002) (government’s failure to disclose 2 witnesses until middle of trial permissible because defendant not
entitled to list of government witnesses); U.S. v. Watts, 95 F.3d 617, 619 (7th Cir. 1996) (no violation though government disclosed
witness 3 days before trial because Rule 16 does not require government to produce witness list or reduce all witness statements to
writing in advance of witness testimony); U.S. v. Hicks, 103 F.3d 837, 841 (9th Cir. 1996) (court erred by ordering government and
defendant to exchange witness lists and summaries of anticipated testimony). But see, e.g., U.S. v. Fletcher, 74 F.3d 49, 54 (4th Cir.
1996) (court did not abuse its discretion by ordering exchange of witness lists because disclosure did not affect substantial rights of
defendants); U.S. v. Nichols, 169 F.3d 1255, 1269 (10th Cir. 1999) (court did not abuse its discretion by refusing to allow defense
expert to testify because expert’s name was omitted from defense’s pretrial witness list).
1108 FED. R. CRIM. P. 16(a)(1)(A)-(C). Although Rule 801(d)(2)(A) of the Federal Rules of Evidence allows for admission of a party
opponent’s statements, a government witness’s statements may not be discoverable under Rule 16 even if those statements contain
statements made by the defendant. See FED. R. CRIM. P. 16(A) (2); see, e.g., U.S. v. Callahan, 534 F.2d 763, 765-66 (7th Cir.
1976) (defendant not entitled to Rule 16 discovery of witness’s statements incorporating confessions made by the defendant
because witness’s statements are barred from pretrial discovery); U.S. v. Hoffman, 794 F.2d 1429, 1433 (9th Cir. 1986) (defendant
not entitled to Rule 16 discovery of witness’s statements containing any statements made by defendant because such witness’s
statements are barred from pretrial discovery).
Similarly, while Rule 801(d)(2)(E) of the Federal Rules of Evidence allows statements of coconspirators to be attributed to
defendants and admitted into evidence as statements of defendants themselves, coconspirators’ statements are not considered
“statements of the defendant” for the purpose of Rule 16 discovery. See FED. R. CRIM. P. 16(A)(2); see, e.g., In re U.S., 834 F.2d
283, 286-87 (2d Cir. 1987) (reversible error to allow discovery of coconspirator’s statements to government agent because
disclosure would undermine witness protection); U.S. v. Roberts, 811 F.2d 257, 258-59 (4th Cir. 1987) (reversible error to allow
discovery of statements made by coconspirator who entered into plea agreement with government to testify at trial); U.S. v. Rivera,
6 F.3d 431, 439 (7th Cir. 1993) (proper to deny discovery of codefendant’s statements made during unsuccessful plea negotiations
because statements of codefendant are not subject to Rule 16 discovery); U.S. v. Manthei, 979 F.2d 124, 126 (8th Cir. 1992) (clear
error to compel government to disclose unrelated suspect’s statements because Rule 16 applies strictly to statements by defendant);
U.S. v. Orr, 825 F.2d 1537, 1540-41 (11th Cir. 1987) (proper to deny discovery of statements made by coconspirator who entered
into plea agreement with government in exchange for testimony at trial); U.S. v. Tarantino, 846 F.2d 1384, 1418 (D.C. Cir. 1988)
(per curiam) (proper to deny discovery of coconspirator’s statements made to government agent because not subject to Rule 16
discovery as statements of defendant).
Statements made by coconspirators to the government are discoverable only through the Jencks Act or the Brady doctrine. See,
e.g., U.S. v. Tarantino, 846 F.2d 1384, 1414-18 (D.C. Cir. 1988) (per curiam). The Jencks Act is discussed in Rule 26.2: Production
of Witness Statements in this section. The Brady doctrine is discussed in Government’s Constitutional Disclosure Duties in this
section.
1109 See FED. R. CRIM. P. 16(a)(1)(A)-(C).
1110 FED. R. CRIM. P. 16(a)(1)(A); see, e.g., U.S. v. Gonzalez, 967 F.2d 1032, 1036 (5th Cir. 1992) (government met disclosure
requirement because officer testified about substance of defendant’s statement months prior to trial at detention hearing and
defendant knew of testimony); U.S. v. Hernandez-Muniz, 170 F.3d 1007, 1009-10 (10th Cir. 1999) (government met disclosure
requirement by alerting defendant to unrecorded oral statement made in interrogation when agent disclosed substance of statement
while testifying at preliminary hearing). But see, e.g., U.S. v. Alvarez, 987 F.2d 77, 85 (1st Cir. 1993) (government failed to
disclose substance of defendant’s oral statement that she had bought a picture frame containing concealed cocaine); U.S. v.
Thomas, 239 F.3d 163, 166-67 (2d Cir. 2001) (government failed to disclose substance of defendant’s oral statement when it did
not produce transcript of an administrative proceeding in which the defendant made statements about the events leading up to his
arrest); U.S. v. Clark, 385 F.3d 609, 619 (6th Cir. 2004) (government failed to disclose substance of defendant’s statement when it
did not produce agent’s “rough notes” of defendant’s interrogation); U.S. v. Serv. Deli Inc., 151 F.3d 938, 943 (9th Cir. 1998)
(government failed to disclose substance of defendant’s statement when it did not produce hand-written notes of interviews with
defendant’s president, because of material discrepancies between the notes and the summary the government did provide); U.S. v.

Euceda-Hernandez, 768 F.2d 1307, 1312 (11th Cir. 1985) (government failed to disclose substance of defendant’s statement when
it did not produce officer’s written summary of defendant’s post-arrest interrogation).
1111 See FED. R. CRIM. P. 16(a)(1)(A); see, e.g., U.S. v. Ferrer-Cruz, 899 F.2d 135, 140 (1st Cir. 1990) (disclosure not required
because defendant’s oral statement not evidence that government intended to offer since prosecutor was unaware of statement
until hours before it was introduced, statement was not transcribed, and thus it existed only in minds of arresting officers); U.S. v.
Wadlington, 233 F.3d 1067, 1078-79 (8th Cir. 2000) (disclosure not required because defendant did not show prosecution knew of
or intended to use defendant’s statement to arresting officer during trial); U.S. v. Perez-Oliveros, 479 F.3d 779, 782 (11th Cir. 2007)
(disclosure of defendant’s statements contradicting previous testimony not required because government did not intend to use these
statements at trial, and they were introduced only as a result of defense counsel’s cross-examination of government witnesses).
1112 See FED R. CRIM. P. 16(a)(1)(B); see, e.g., U.S. v. Bullard, 37 F.3d 765, 768 (1st Cir. 1994) (defendant’s refusal to put on hat for
prebooking photo not statement by defendant that government must disclose); U.S. v. Gaddis, 877 F.2d 605, 610 (7th Cir. 1989)
(per curiam) (altered money order not statement by defendant that government must disclose because defendant had not written
anything on money order); U.S. v. Malone, 49 F.3d 393, 396 (8th Cir. 1995) (government agent’s notes and e-mail message to
prosecutor not statements by defendant that government must disclose); U.S. v. Small, 74 F.3d 1276, 1285 (D.C. Cir. 1996)
(defendant’s bowing of head in response to Inspector finding drugs in defendant’s sock not statement by defendant that government
must disclose because it was too “ambiguous and non-communicative”). But see, e.g., U.S. v. Matthews, 20 F.3d 538, 549-50 (2d
Cir. 1994) (letters in government’s possession from defendant to third persons are written statements that government must
disclose).
1113 See FED. R. CRIM. P. 16(a)(1)(B).
1114 See id.; see, e.g., U.S. v. Lanoue, 71 F.3d 966, 974-75 (1st Cir. 1995) (government required to disclose defendant’s statements in
recorded telephone discussion about informant and allegedly stolen car because statements relevant in light of defense theory that
informant provided false information), abrogated on other grounds by U.S. v. Watts, 519 U.S. 148, 149 (1997) (per curiam); U.S. v.
Thomas, 239 F.3d 163, 166-67 (2d Cir. 2001) (government required to disclose transcript of defendant’s administrative hearing
testimony during which defendant admitted ownership of coat in which ammunition was found, though statements were given
voluntarily, were not custodial, and were not used by government in case-in-chief, because statements were relevant to prosecution
for possession of ammunition by a felon); U.S. v. Danielson, 325 F.3d 1054, 1075 (9th Cir. 2003) (government required to disclose
defendant’s recorded statements about pending criminal charges because statements were relevant). But see, e.g., U.S. v. Scarpa,
897 F.2d 63, 70 (2d Cir. 1990) (government not required to disclose tapes of defendant’s conversations if they are either entirely
innocuous or involved crimes other than those charged); U.S. v. Derrick, 163 F.3d 799, 818 (4th Cir. 1998) (government not
required to disclose defendant legislators’ statements in which each legislator characterized payments received from prosecution
witness as “campaign contributions” because statements irrelevant); U.S. v. Clark, 957 F.2d 248, 251-52 (6th Cir. 1992)
(government not required to disclose written or recorded statements of defendant related to other crimes still under investigation);
U.S. v. Doe, 60 F.3d 544, 546 (9th Cir. 1995) (government not required to disclose defendant’s statement that he sawed off
shotgun; statement was neither relevant nor in dispute).
Because it may not be clear before trial which of the defendant’s statements will become relevant at trial, the government should
disclose any statement of the defendant that is relevant to any possible defense or argument that the defendant may assert. See, e.g.,
U.S. v. Stevens, 985 F.2d 1175, 1180-81 (2d Cir. 1993) (record of telephone call made between defendant and another arrestee
relevant to defense argument that arrestee “set up” defendant and therefore subject to discovery); U.S. v. Bailleaux, 685 F.2d 1105,
1114-15 (9th Cir. 1982) (recorded conversation between defendant and business associate rebutting defendant’s alibi and
identifying defendant’s voice relevant and thus subject to discovery). But see, e.g., U.S. v. Gonzalez-Rincon, 36 F.3d 859, 865 (9th
Cir. 1994) (defendant’s prior customs declaration not “relevant statement” if used only to impeach defendant’s testimony).
If the government asserts a colorable claim to block discovery of classified information under the Classified Information
Procedures Act (CIPA), 18 U.S.C. app. 3 § 4, the defendant must show that the information sought will at least be “helpful to the

defense of [the] accused.” Rovario v. U.S., 353 U.S. 53, 60-62 (1957); see, e.g., U.S. v. Fowler, 932 F.2d 306, 310 (4th Cir. 1991)
(discovery request for classified information properly denied because contents of secret documents mentioned in conspiracy,
conveyance, and mail fraud counts not relevant to defense); U.S. v. Varca, 896 F.2d 900, 905 (5th Cir. 1990) (discovery request for
classified information properly denied because defendants did not show information would be helpful or exculpatory and
defendant already knew information); U.S. v. Dumeisi, 424 F.3d 566, 577-78 (7th Cir. 2005) (discovery request for classified
information regarding witness’s grand jury testimony properly denied because government’s unclassified summary was sufficient
substitute for impeachment purposes); U.S. v. Klimavicius-Viloria, 144 F.3d 1249, 1261-62 (9th Cir. 1998) (discovery request for
classified information properly denied because information reviewed during in camera hearing held in absence of defense counsel
found not helpful to defense); U.S. v. Apperson, 441 F.3d 1162, 1194 (10th Cir. 2006) (discovery request for classified information
properly denied in part because defendant failed to explain its relevance to his defense); U.S. v. Mejia, 448 F.3d 436, 453, 456
(D.C. Cir. 2006) (discovery request for classified information “related to the defendants and arguably subject to discovery”
properly denied because information not sufficiently helpful to defense to overcome governmental privilege).
1115 See FED. R. CRIM. P. 16(a)(1)(B)(i); see, e.g., U.S. v. Bailleaux, 685 F.2d 1105, 1113 (9th Cir. 1982) (tape of defendant’s
conversation held by FBI was within possession of government for purposes of discovery). But see, e.g., U.S. v. Mejia, 448 F.3d
436, 444 (D.C. Cir. 2006) (no obligation to disclose recordings of alleged, non-testifying, coconspirator’s trial in Costa Rica
because authority to seek tapes or transcripts through treaty is not possession, custody, or control).
Statements held by the court or probation officers are not usually considered to be within the possession of the government for
discovery purposes because the government’s disclosure obligations focus primarily on activities of the prosecutor. See, e.g., U.S.
v. Trevino, 556 F.2d 1265, 1271 (5th Cir. 1977) (no obligation to disclose materials in possession of probation officer because
probation officer is not affiliated with prosecution, and neither Jencks Act nor Rule 16 requires disclosure of materials in
possession of probation officer); U.S. v. Sherlin, 67 F.3d 1208, 1218 (6th Cir. 1995) (no obligation to disclose presentence report
because presentence report is report to the court, not evidence available to prosecution); U.S. v. Zavala, 839 F.2d 523, 528 (9th Cir.
1988) (per curiam) (no obligation to disclose because probation reports held by probation officers are not within possession of
government for discovery purposes).
1116 See FED. R. CRIM. P. 16(a)(1)(B)(i); see, e.g., U.S. v. Matthews, 20 F.3d 538, 550 (2d Cir. 1994) (failure to disclose letter written
by defendant violated Rule 16 because government attorney withheld the letter instead of disclosing within a reasonable time);
U.S. v. Bailleaux, 685 F.2d 1105, 1113-14 (9th Cir. 1982) (failure to disclose statement violated Rule 16 because government
attorney could have discovered existence of statements in FBI’s possession by exercising reasonable diligence).
1117 FED. R. CRIM. P. 16(a) (1)(B)(ii); see, e.g., U.S. v. Brown, 303 F.3d 582, 590 (5th Cir. 2002) (government’s duty to disclose
statements made by defendant to FBI agent during fraud investigation was discharged when government provided defendant with a
“302 report” derived from agent’s interview notes that contained the substance of defendant’s statements); U.S. v. Holloway, 740
F.2d 1373, 1381 (6th Cir. 1984) (government’s duty to disclose was discharged by report released to defendant that provided
substance of defendant’s oral statement); U.S. v. Coe, 220 F.3d 573, 583 (7th Cir. 2000) (government’s duty to disclose was
discharged by typewritten reports that provided accurate reflection of handwritten notes of conversation between defendant and
federal agents); U.S. v. Hernandez-Muniz, 170 F.3d 1007, 1010 (10th Cir. 1999) (government’s duty to disclose defendant’s
statement discharged when agent testified to statement at preliminary hearing). But see, e.g., U.S. v. Clark, 385 F.3d 609, 619 (6th
Cir. 2004) (government’s duty to disclose not discharged by officer’s interview summary because government failed to turn over
“rough” interview notes that were considered part of written record).
1118 See FED. R. CRIM. P. 16(a)(1)(B)(ii); see, e.g., U.S. v. Kusek, 844 F.2d 942, 948-49 (2d Cir. 1988) (defendant’s oral statement not
in response to government interrogation; defendant, after being arrested and signing Miranda warning card, blurted out that he had
never seen the cash police discovered in his bedroom); U.S. v. Scott, 223 F.3d 208, 212 (3d Cir. 2000) (defendant’s unrecorded
spontaneous oral statements given after arrest not made in response to interrogation); U.S. v. Carter, 300 F.3d 415, 423-24 (4th Cir.
2002) (per curiam) (defendant’s oral statement to person who later became government witness not made in response to

government interrogation); U.S. v. Flores, 63 F.3d 1342, 1365 (5th Cir. 1995) (defendant’s oral angry outburst, directed at third
person, not made in response to government interrogation); U.S. v. Godinez, 114 F.3d 583, 589 (6th Cir. 1997) (defendant’s
response to booking questionnaire not made in response to interrogation because routine information elicited during booking does
not constitute interrogation); U.S. v. Young, 875 F.2d 1357, 1358-59 (8th Cir. 1989) (defendant’s oral statement over telephone not
made in response to interrogation when defendant, after hearing that wife was in jail for assault, told investigator: “She had nothing
to do with it, I did it.”); U.S. v. Taylor, 417 F.3d 1176, 1181-82 (11th Cir. 2005) (per curiam) (defendant’s voluntary confession to
fellow prisoner not made in response to interrogation). For further discussion, see CUSTODIAL INTERROGATIONS in Part I.
1119 See FED. R. CRIM. P. 16(a)(1)(B)(ii); see, e.g., U.S. v. Burns, 15 F.3d 211, 213-14 (1st Cir. 1994) (defendant’s statements to U.S.
Postal Service supervisor not discoverable because supervisor had no criminal law enforcement responsibilities and was not acting
as law enforcement agent when incriminating statements were made); In re U.S., 834 F.2d 283, 285-87 (2d Cir. 1987) (defendant’s
statements to third party who then repeated statements to government agent not discoverable); U.S. v. Carter, 300 F.3d 415, 423-24
(4th Cir. 2002) (per curiam) (defendant’s statements not discoverable because person to whom they were made was not government
agent at time they were made); U.S. v. Zarattini, 552 F.2d 753, 757 (7th Cir. 1977) (defendant’s statements to brother not
discoverable because brother was neither government agent nor witness); U.S. v. Gibson, 105 F.3d 1229, 1234 (8th Cir. 1997)
(defendant’s statement to drug courier not discoverable because courier was not government agent at time defendant made
statement); U.S. v. Whitworth, 856 F.2d 1268, 1276 n.3 (9th Cir. 1988) (defendant’s statements to third party not discoverable
because third party was not government agent conducting interrogation); U.S. v. Taylor, 417 F.3d 1176, 1181-82 (11th Cir. 2005)
(per curiam) (defendant’s voluntary confession to fellow prisoner not discoverable because prisoner was not a government agent).
1120 See FED. R. CRIM. P. 16(a)(1)(B)(iii). Rules 6(e), 16(a)(3), and 26.2(f)(3) also deal with grand jury disclosure provisions.
1121 See FED. R. CRIM. P. 16(a)(1)(C).
1122 See FED. R. CRIM. P. 16(a)(1)(C)(i). The ability of the person making the statement to legally bind the organizational defendant
must be rooted in the person’s employment status as the organization’s “director, officer, employee, or agent.” Id.
1123 See FED. R. CRIM. P. 16(a)(1)(C)(ii). Whether the person was legally able to bind the organizational defendant with respect to the
conduct also must be derived from the person’s employment status as the “[organizational] defendant’s director, officer, employee,
or agent.” Id.
1124 See FED. R. CRIM. P. 16(a)(1)(D). But see, e.g., U.S. v. Hourihan, 66 F.3d 458, 463 (2d Cir. 1995) (government not required to
correct defense counsel’s mistaken belief that defendant’s previous conviction was for theft of clothing rather than theft of meat
and groceries for resale, since only the conviction itself is part of the criminal record and not the underlying facts of the
conviction); U.S. v. Reed, 724 F.2d 677, 680 (8th Cir. 1984) (government not required to inform defense counsel of another
ongoing, but unrelated criminal proceeding against defendant because this information is not considered a part of defendant’s prior
criminal record); U.S. v. Audelo-Sanchez, 923 F.2d 129, 130 (9th Cir. 1991) (per curiam) (government not required to disclose
defendant’s speeding ticket because it was a minor infraction not appearing on criminal record or rap sheet). As with a defendant’s
request for written or recorded statements, defendant’s request for prior criminal record triggers a government duty to search its
files with due diligence. See FED. R. CRIM. P. 16(a)(1)(D).
1125 See FED. R. CRIM. P. 16(a)(1)(E). But see, e.g., U.S. v. Tindle, 808 F.2d 319, 322-23 (4th Cir. 1986) (government not required to
copy and release thousands of business and financial records when court permitted defendant access to all records and opportunity
to copy those that were relevant); U.S. v. Kimbrough, 69 F.3d 723, 731 (5th Cir. 1995) (government can refuse to allow defendant
to copy child pornography pictures because government gave defendant sufficient access to the pictures); U.S. v. White Horse, 316

F.3d 769, 773 (8th Cir. 2003) (government not required to produce copies of forensic report or videotaped interview because
defendant obtained copy of report from another source and was allowed to view videotaped interview in advance of trial).
1126 See FED. R. CRIM. P. 16(a)(1)(E). The Fifth Circuit has held that although tangible objects themselves are discoverable, a
government witness’s intended testimony about those objects is not discoverable under Rule 16(a)(1)(E). See U.S. v. Ridlehuber,
11 F.3d 516, 525 (5th Cir. 1993) (government officer’s testimony about location of ammunition clip, which defendant’s counsel had
seen during discovery, was not discoverable).
1127 See FED. R. CRIM. P. 16(a)(1)(E); see, e.g., U.S. v. Santiago, 46 F.3d 885, 894 (9th Cir. 1995) (defendant entitled to inmate files
held by Bureau of Prisons because prosecutor had knowledge of and access to files, including defendant’s file). But see, e.g., U.S.
v. Hughes, 211 F.3d 676, 688 (1st Cir. 2000) (defendant not entitled to disclosure of missing crime scene photos taken by Mexican
police officer because federal government did not have control of them); U.S. v. Cotroni, 527 F.2d 708, 712 (2d Cir. 1975)
(defendant not entitled to disclosure of wiretap recordings because recordings were in possession of Canadian officials, not the
federal government); U.S. v. Pinto, 905 F.2d 47, 50 (4th Cir. 1990) (defendant not entitled to disclosure of bail bond applications
and related documents because government did not have actual knowledge, control, or possession of evidence); U.S. v. Hach, 162
F.3d 937, 947 (7th Cir. 1998) (defendant not entitled to disclosure of medical and psychiatric records of government witness
because such evidence was never in government’s possession or control); U.S. v. Mejia, 448 F.3d 436, 444 (D.C. Cir. 2006)
(defendant not entitled to disclosure of recordings of nontestifying, alleged coconspirator’s trial in Costa Rica because authority to
seek tapes or transcripts through treaty is not possession, custody, or control).
The Ninth Circuit has interpreted Rule 16(a)(1)(E) more narrowly than 16(a)(1)(B)(i), requiring disclosure only of documents
within the government’s actual control under 16(a)(1)(E), but requiring disclosure of statements within the government’s actual or
constructive control under 16(a)(1)(B)(i). See U.S. v. Gatto, 763 F.2d 1040, 1048 (9th Cir. 1985) (Rule 16(a)(1)(E) contains no due
diligence language and therefore creates an obligation to disclose only documents within federal government’s actual possession,
custody, or control).
1128 See FED. R. CRIM. P. 16(a)(1)(E). Some circuits have expressed an unwillingness to include certain entities within the definition
of “government.” See, e.g., U.S. v. Hughes, 211 F.3d 676, 688-89 (1st Cir. 2000) (no obligation to disclose photos that were in
possession of Mexican government); Thor v. U.S., 574 F.2d 215, 220-21 (5th Cir. 1978) (no obligation to disclose address book
that was in possession of Oregon county police, not federal prosecutor); U.S. v. Sherlin, 67 F.3d 1208, 1218 (6th Cir. 1995) (no
obligation to disclose presentence report because it is directed to the court, not evidence available to prosecution at trial); U.S. v.
Chavez-Vernaza, 844 F.2d 1368, 1375 (9th Cir. 1987) (no obligation to disclose defendant’s financial records because documents
were in control of state official, not federal government), amended by 1988 U.S. App. LEXIS 14407 (9th Cir. 1988); U.S. v. Brazel,
102 F.3d 1120, 1150 (11th Cir. 1997) (no obligation to disclose defendants’ guilty pleas from state court because evidence was in
possession of state officers, not federal government); U.S. v. Marshall, 132 F.3d 63, 68 (D.C. Cir. 1998) (no obligation to disclose
records in possession of local police department; federal prosecutor had not yet discovered records and did not act in bad faith).
But see, e.g., U.S. v. Santiago, 46 F.3d 885, 894 (9th Cir. 1995) (disclosure of inmate files required because prosecutor had
knowledge of and access to files); U.S. v. Jordan, 316 F.3d 1215, 1249 (11th Cir. 2003) (disclosure of materials in the hands of the
FBI required because the FBI is a governmental investigatory agency closely connected to the prosecutor).
1129 See FED. R. CRIM. P. 16(a)(1)(E)(i); see, e.g., U.S. v. Rodriguez-Rivera, 473 F.3d 21, 27 (1st Cir. 2007) (co-conspirators’ case
files showing 3-years’ time between indictments not discoverable because files would not benefit defense); U.S. v. Stevens, 985
F.2d 1175, 1179-80 (2d Cir. 1993) (telephone record not discoverable because disclosure would not have countered government’s
case or bolstered defense and would only have impacted defendant’s strategy decisions); U.S. v. Fowler, 932 F.2d 306, 311 (4th
Cir. 1991) (documents including Department of Defense financials not discoverable in case involving unauthorized conveyance of
classified material because documents were immaterial); U.S. v. Webster, 162 F.3d 308, 336-37 (5th Cir. 1998) (information
regarding investigator’s inducement of prosecution witness’s testimony not discoverable because witness was only 1 of many who
testified to rebut defendant’s claim of mental retardation); U.S. v. Kincaide, 145 F.3d 771, 780 (6th Cir. 1998) (information on

history of slavery in United States not discoverable because irrelevant); U.S. v. Baker, 453 F.3d 419, 424-25 (7th Cir. 2006) (sealed
information about gun’s history not discoverable because immaterial); U.S. v. Robinson, 439 F.3d 777, 781 (8th Cir. 2006) (internal
government tax liability computations not discoverable because immaterial); U.S. v. Olano, 62 F.3d 1180, 1203 (9th Cir. 1995)
(government’s intent to introduce “scrambler telephone” as evidence not discoverable because defendant did not explain how
disclosure would have benefited defense); U.S. v. Nash, 482 F.3d 1209, 1217 (10th Cir. 2007) (DEA memoranda indicating
possible false report in other cases from police officer who testified not discoverable because overwhelming evidence of
defendant’s possession of cocaine made memoranda immaterial); U.S. v. Graham, 83 F.3d 1466, 1473-74 (D.C. Cir. 1996) (results
of government witness’s polygraph test in which he admitted to 2 murders not discoverable because immaterial where witness had
admitted to murders on direct examination and ample evidence for impeachment existed in addition to polygraph results). But see,
e.g., U.S. v. Cedano-Arellano, 332 F.3d 568, 571 (9th Cir. 2003) (drug-detection dog’s certification tests and training logs subject
to disclosure because material to defendant’s ability to assess dog’s reliability and cross-examine government witness); U.S. v.
Marshall, 132 F.3d 63, 67-68 (D.C. Cir. 1998) (jail visitation records, county police records, and pager call records subject to
disclosure despite government’s contention that materials were neither helpful nor exculpatory to defendant).
In United States v. Armstrong, the Supreme Court indicated that the phrase “material to the preparation of the defendant’s defense”
may be limited to discovery of evidence to rebut the government’s case-in-chief rather than discovery of evidence to support any
affirmative defense, 517 U.S. 456, 462 (1996). The Court stated that “in the context of Rule 16 ‘the defendant’s defense’ means the
defendant’s response to the Government’s case-in-chief.” Id. Three justices, however, filed concurring opinions reasoning that the
phrase should include discovery in support of the affirmative defense of selective prosecution. Id. at 471-76; see, e.g., U.S. v. Sued-
Jimenez, 275 F.3d 1, 8 (1st Cir. 2001) (defendant not entitled to discovery of evidence that government used nonconventional
weapon in apprehending defendants because materials would only support an affirmative defense properly precluded by trial
court); In re U.S., 397 F.3d 274, 284 (5th Cir. 2005) (per curiam) (defendant not entitled to discovery for selective prosecution
claim after failure to provide evidence of discriminatory effect or purpose of prosecution of African-American defendant); U.S. v.
Barlow, 310 F.3d 1007, 1012 (7th Cir. 2002) (defendant not entitled to discovery under Rule 16(a)(1)(C), now Rule 16(a)(1)(E), for
claim of selective prosecution); U.S. v. Turner, 104 F.3d 1180, 1184 (9th Cir. 1997) (same); U.S. v. Alcaraz-Arellano, 441 F.3d
1252, 1265-66 (10th Cir. 2006) (defendant not entitled to discovery for selective prosecution claim after failure to establish
discriminatory intent where trial judge made factual finding that stop resulted from radar reading before defendant’s ethnicity was
known); U.S. v. Rashed, 234 F.3d 1280, 1285-86 (D.C. Cir. 2000) (defendant not entitled to discovery because defendant sought
evidence related to independent constitutional bar to prosecution and not to government’s case-in-chief).
1130 See FED. R. CRIM. P. 16(a)(1)(E)(ii); see, e.g., U.S. v. Middleton, 246 F.3d 825, 839-40 (6th Cir. 2001) (Rule 16 not violated by
government’s failure to disclose intent to rely on court opinions in which views of self-proclaimed tax guru were criticized as
“blatant nonsense” because opinions were not intended to be used in government’s case-in-chief); U.S. v. Dennis, 115 F.3d 524,
534 (7th Cir. 1997) (though government conceded that it had violated Rule 16, court was uncertain whether government’s failure to
obtain results of fingerprint analysis until after defendant’s trial violated Rule 16 because evidence had only slight, if any,
exculpatory value and because government did not use evidence); U.S. v. McCourt, 468 F.3d 1088, 1093 (8th Cir. 2006) (Rule 16
not violated by government’s failure to disclose mistakes in detective’s report concerning time-stamps and number of child
pornography computer images because government did not rely on these numbers in its case-in-chief); U.S. v. Taghipour, 964 F.2d
908, 910-11 (9th Cir. 1992) (per curiam) (Rule 16 not violated by government’s failure to release tape of conversation between
government informant, DEA agent, and defendant because tape not relevant to government’s case-in-chief and government did not
call informant as witness). But see, e.g., U.S. v. Johnson, 713 F.2d 633, 649 (11th Cir. 1983) (Rule 16 violated by government’s
failure to furnish notice of intent to introduce defendant’s duffel bags abandoned at airport because evidence was material to
government’s case-in-chief).
1131 See FED. R. CRIM. P. 16(a)(1)(E)(iii); see, e.g., U.S. v. Gaddis, 877 F.2d 605, 610-11 (7th Cir. 1989) (Rule 16 not violated by
government’s nondisclosure of altered money order because money order did not belong to defendant; government obtained it from
Postal Service). But see, e.g., U.S. v. Rodriguez, 799 F.2d 649, 652 (11th Cir. 1986) (per curiam) (Rule 16 violated by
government’s failure to disclose materials taken from defendant’s wallet after arrest though prosecution intended to use materials
only during cross-examination).

1132 See FED. R. CRIM. P. 16(a)(1)(F); see, e.g., V.I. v. Fahie, 419 F.3d 249, 257 (3d Cir. 2005) (government required to disclose ATF
trace report about seized gun prepared for police department because it was not work product exempted from discovery); U.S. v.
Stevens, 380 F.3d 1021, 1025-26 (7th Cir. 2004) (government required to disclose fingerprint expert’s report, which is a
“scientific” report under Rule 16(a)(1)(F)); U.S. v. Cedano-Arellano, 332 F.3d 568, 571 (9th Cir. 2003) (government required to
disclose drug-detection dog’s certification tests and training logs). But see, e.g., U.S. v. Uzenski, 434 F.3d 690, 709 (4th Cir. 2006)
(no requirement to disclose laboratory notes because final report had already been disclosed); U.S. v. Iglesias, 881 F.2d 1519,
1523-24 (9th Cir. 1989) (no requirement to disclose log notes recorded for disclosed lab analysis because notes lacked finality and
were likely to be distorted); U.S. v. Price, 75 F.3d 1440, 1445 (10th Cir. 1996) (no requirement to disclose information about
processes used by lab to obtain test results because results themselves already disclosed); U.S. v. Holloway, 971 F.2d 675, 680
(11th Cir. 1992) (no requirement to disclose fingerprint and handwriting tests on documents disclosed to defendant because
defendant could have independently done same analysis).
Only written reports are subject to Rule 16(a)(1)(F) discovery. See, e.g., U.S. v. Smith, 101 F.3d 202, 209 (1st Cir. 1996) (no
requirement to disclose test result because expert prepared no written report of comparison between pistol casing found at crime
scene and government’s test-fire casings); U.S. v. Shue, 766 F.2d 1122, 1135 (7th Cir. 1985) (no requirement to disclose expert
witness’s use of magnifying glass to compare photo of defendant with photo of bank robber because expert prepared no written
report of examination or conclusions and defendant had access to photos before trial); U.S. v. Glaze, 643 F.2d 549, 552 (8th Cir.
1981) (per curiam) (no requirement to disclose unrecorded results of inconclusive field test because laboratory test later proved
unknown substance was cocaine and government disclosed written results of second test).
1133 See FED. R. CRIM. P. 16(a)(1)(F)(i). A discovery request for examination and test reports, like requests for statements and prior
criminal records, triggers the government’s duty to search its files with due diligence. See FED. R. CRIM. P. 16(a) (1) (F) (ii).
1134 See FED. R. CRIM. P. 16(a)(1)(F)(iii); see, e.g., U.S. v. Quintero, 872 F.2d 107, 114 (5th Cir. 1989) (no requirement to produce
chemist’s reports on heroin in weapons prosecution because no physical evidence of heroin was introduced at trial); U.S. v. Di
Carlantonio, 870 F.2d 1058, 1062-63 (6th Cir. 1989) (no requirement to produce locksmith test results because results offered to
rebut defense testimony, not as part of prosecution’s case-in-chief); U.S. v. Frazier, 387 F.3d 1244, 1269 (11th Cir. 2004) (no
requirement to produce test results because results used for rebuttal testimony).
1135 See, e.g., U.S. v. Griffin, 194 F.3d 808, 823 (7th Cir. 1999) (testimony of government expert witness admissible despite
government’s failure to disclose until 3 days before trial because defendant did not request discovery of expert witnesses); U.S. v.
Johnson, 228 F.3d 920, 924 (8th Cir. 2000) (testimony of government expert witness admissible despite government’s failure to
make promised disclosure because defendant failed to make necessary request). But see, e.g., U.S. v. Cruz, 363 F.3d 187, 196 (2d
Cir. 2004) (government must disclose according to Rule 16 despite defendant’s failure to request if government had previously
indicated it would comply with Rule 16).
1136 See FED. R. CRIM. P. 16(a)(1)(G); see, e.g., U.S. v. Soto-Beniquez, 356 F.3d 1, 37-38 (1st Cir. 2003) (government fulfilled
disclosure duty by informing defense that expert would testify on pathology reports he authored and providing copies of those
reports despite fact that different pathologist testified); U.S. v. Tin Yat Chin, 476 F.3d 144, 146 (2d Cir. 2007) (disclosure required
because government’s witness testified as a handwriting expert, opining that signatures on receipts were not defendant’s); U.S. v.
Cuellar, 478 F.3d 282, 293 (5th Cir. 2007) (en banc) (disclosure required because government agent testified as expert witness
regarding the usual practices of drug couriers); U.S. v. Ganier, 468 F.3d 920, 925-27 (6th Cir. 2006) (disclosure required because
interpreting forensics reports required complex technical knowledge and thus constituted expert testimony); U.S. v. Kenyon, 481
F.3d 1054, 1061-62 (8th Cir. 2007) (disclosure required because medical expert gave testimony about specific typical
characteristics of sexual abuse); U.S. v. Figueroa-Lopez, 125 F.3d 1241, 1242-47 (9th Cir. 1997) (disclosure of DEA agent as
expert witness required because agent’s testimony, applying drug-trafficking profile to defendant, constituted expert opinion

involving specialized knowledge); U.S. v. Martinez, 476 F.3d 961, 967 (D.C. Cir. 2007) (government fulfilled disclosure duty by
informing defense that witness would testify about the method of importing cocaine from Colombia). But see, e.g., U.S. v. Maher,
454 F.3d 13, 24 (1st Cir. 2006) (no disclosure required because officer’s testimony that post-it notes were probably drug orders was
lay opinion based on observations and personal experience, not expert testimony); U.S. v. Perry, 438 F.3d 642, 650 (6th Cir. 2006)
(no disclosure required because agent was not offered as expert and defense counsel did not challenge agent’s qualifications to
offer lay testimony); U.S. v. Caballero, 277 F.3d 1235, 1247 (10th Cir. 2002) (no disclosure required because INS agents’
testimony involved only personal experiences, not expert or lay opinions); U.S. v. Hamaker, 455 F.3d 1316, 1330-32 (11th Cir.
2006) (no disclosure required because financial analyst’s testimony regarding fraudulent billing was not expert testimony and
conclusion did not require specialized knowledge).
1137 See FED. R. CRIM. P. 16(a)(1)(G).
1138 See FED. R. CRIM. P. 16(a)(2); see, e.g., U.S. v. LiCausi, 167 F.3d 36, 51 (1st Cir. 1999) (government not required to disclose
projected testimony of FBI agent because report of FBI investigation was exempt from discovery as material prepared in
connection with the investigation of a case); U.S. v. Mann, 61 F.3d 326, 330-31 (5th Cir. 1995) (government not required to
disclose IRS agent’s report because government did not waive right to nondisclosure by providing defendants limited access to
report and later refusing access when defendants violated informal agreement); U.S. v. Miller, 161 F.3d 977, 986 (6th Cir. 1998)
(government not required to disclose report comparing handwriting samples); U.S. v. Robinson, 439 F.3d 777, 780 (8th Cir. 2006)
(government not required to disclose internal tax liability computations because they were reports created for investigation and thus
immune to discovery); U.S. v. Fort, 472 F.3d 1106, 1119-20 (9th Cir. 2007) (government not required to disclose state police
reports created prior to federal involvement but later used to support federal prosecution for same crime). But see, e.g., V.I. v.
Fahie, 419 F.3d 249, 257 (3d Cir. 2005) (government violated Rule 16 by failing to disclose computer-generated printout from
government database because printout did not reveal any confidential information pertaining to government’s prosecution
strategy); U.S. v. Cedano-Arellano, 332 F.3d 568, 571 (9th Cir. 2003) (government violated Rule 16 by failing to disclose drug-
detection dog’s certification tests and training logs because documents not prepared in anticipation of litigation).
1139 See FED. R. CRIM. P. 16(a)(2); see, e.g., U.S. v. Bros. Constr. Co., 219 F.3d 300, 316 (4th Cir. 2000) (written summaries and
interview notes of government witnesses’ statements not discoverable); U.S. v. Mills, 810 F.2d 907, 910 (9th Cir. 1987) (pretrial
statements not discoverable even if witnesses ultimately did not testify); U.S. v. Mendoza-Salgado, 964 F.2d 993, 1001 (10th Cir.
1992) (statements by government informant who introduced suspected drug traffickers to narcotics agent not discoverable); U.S. v.
Haire, 371 F.3d 833, 841 (D.C. Cir. 2004) (statements made by cooperating defendants at trial not discoverable until witnesses
testified on direct examination), vacated on other grounds, 543 U.S. 1109 (2005).
1140 Under the Jencks Act, for example, the defendant may discover a government witness’s pretrial statements after the witness has
testified on direct examination if the statements are in the government’s possession and relate to the subject matter of the witness’s
testimony. See 18 U.S.C. § 3500. The Jencks Act is discussed in Rule 26.2: Production of Witness Statements in this section. The
Brady doctrine also requires the production of exculpatory statements by government witnesses under some circumstances. For
further discussion, see Government’s Constitutional Disclosure Duties in this section.
1141 See 18 U.S.C. § 3432; see, e.g., U.S. v. Lee, 374 F.3d 637, 652 (8th Cir. 2004) (no violation of § 3432 when defense counsel had
access to list of government witnesses though defendant barred from access through court order). A defendant in a noncapital case
has no constitutional right to discover the identity of prospective government witnesses. See Weatherford v. Bursey, 429 U.S. 545,
559 (1977) (no due process requirement exists to provide names of witnesses unfavorable to defendant).
1142 See, e.g., U.S. v. Pervaz, 118 F.3d 1, 9-10 (1st Cir. 1997) (discovery denied because defendant’s request for independent
examination of tracking information not made until suppression hearing); U.S. v. Fullwood, 86 F.3d 27, 32 (2d Cir. 1996)

(discovery denied because defendant made request less than 1 month before scheduled trial, 5 months after suppression hearing on
admissibility of material, and more than 13 months after defendant knew material existed); U.S. v. De La Rosa, 196 F.3d 712, 715-
16 (7th Cir. 1999) (discovery denied because defendant’s request for summary of own statement not timely); U.S. v. Mikaelian,
168 F.3d 380, 389 (9th Cir. 1999) (discovery denied because request made 9 months after guilty plea was entered), amended by 180
F.3d 1091 (9th Cir. 1999); U.S. v. Apperson, 441 F.3d 1162, 1194 (10th Cir. 2006) (discovery denied because request for classified
information was untimely and information was irrelevant).
1143 See, e.g., U.S. v. Price, 75 F.3d 1440, 1444-45 (10th Cir. 1996) (discovery denied because defendant’s motion contained only “bare
references” to subparagraphs and was “entirely without detail”); U.S. v. Jordan, 316 F.3d 1215, 1250 (11th Cir. 2003) (discovery
denied because overly vague; “defendant must make a specific request for the item” and explain how it will benefit defense).
Specificity under the Jencks Act is discussed in Rule 26.2: Production of Witness Statements in this section.
1144 See FED. R. CRIM. P. 16(c); see, e.g., U.S. v. Matthews, 20 F.3d 538, 550 (2d Cir. 1994) (government’s continuing duty to
disclose breached when prosecutor became aware of statement subject to disclosure and did not immediately produce to defense
counsel); U.S. v. Chestang, 849 F.2d 528, 532-33 (11th Cir. 1988) (government’s continuing duty to disclose breached when
defendant requested all offers of immunity to government witnesses and government knew, but did not reveal, that witness would
soon accept written immunity offer; no prejudice to defendant, however, because defense counsel knew of immunity offer and used
information to full advantage on cross-examination). But see, e.g., U.S. v. Valentine, 984 F.2d 906, 910 (8th Cir. 1993)
(government’s continuing duty to disclose satisfied by prosecutor’s open file policy, pretrial release of witness’s name, and
indication in opening statement that witness would give expert testimony regarding drug paraphernalia and street value of drugs).
1145 See FED. R. CRIM. P. 16(d)(1); see, e.g., U.S. v. Rodriguez, 63 F.3d 1159, 1168 (1st Cir. 1995) (request for material damaging to
witness’s credibility properly denied because witness had already admitted prior perjury conviction and little likelihood that
requested material would further aid jury in assessing witness’s credibility); U.S. v. Madori, 419 F.3d 159, 164, 169 (2d Cir. 2005)
(request for information regarding witness’s cooperation with FBI properly denied because it was immaterial to the defense); U.S.
v. Polan, 970 F.2d 1280, 1285 (3d Cir. 1992) (request for prosecution witness’s psychiatric records properly denied because in
camera inspection revealed that they contained no exculpatory information); U.S. v. Dumeisi, 424 F.3d 566, 577-78 (7th Cir.
2005) (request for classified information regarding witness’s grand jury testimony properly denied because disclosed unclassified
summary was sufficient substitute for impeachment purposes); U.S v. Horn, 187 F.3d 781, 792 (8th Cir. 1999) (request for
disclosure of videotapes to defendant for use by expert witness properly denied because government offered to let defendant’s
expert witness view tapes); U.S. v. Matta-Ballesteros, 71 F.3d 754, 770 (9th Cir. 1995) (request for confidential CIA records
properly denied though defendant asserted public authority defense because other evidence showed connection between defendant
and CIA), amended by 98 F.3d 1100 (9th Cir. 1996); U.S. v. LaVallee, 439 F.3d 670, 692 (10th Cir. 2006) (request for witness’s
psychiatric records properly denied because privileged documents not subject to discovery for use as impeachment evidence); U.S.
v. Simms, 385 F.3d 1347, 1359 (11th Cir. 2004) (request for tracking device and related information properly denied because
defendant “made no showing of entitlement”); U.S. v. Mejia, 448 F.3d 436, 453, 456 (D.C. Cir. 2006) (request for classified
information “related to the defendants and arguably subject to discovery” properly denied because information was not sufficiently
helpful to defense to overcome governmental privilege). But see, e.g., U.S. v. Dominguez-Villa, 954 F.2d 562, 565 (9th Cir. 1992)
(no abuse of discretion to require government to review personnel files of each federal law enforcement witness whom prosecution
intended to call at trial and supply defense with information relating to dishonest conduct by those witnesses despite government’s
concern that burden of searching every file outweighed prospect that something useful would be found).
1146 See Pa. v. Ritchie, 480 U.S. 39, 41 (1987) (defendant’s right to discover exculpatory evidence and state’s interest in ensuring fair
trial can be protected fully by trial court conducting in camera review of confidential information); see, e.g., U.S. v. Rosario-
Peralta, 175 F.3d 48, 56 (1st Cir. 1999) (court should have reviewed records and logs of communications agencies before denying
discovery); U.S. v. Pena, 227 F.3d 23, 28 (2d Cir. 2000) (court did not err by reviewing government’s pretrial services reports in
chambers to determine whether they contained discoverable information and whether need for such information was compelling);

U.S. v. Hsu, 155 F.3d 189, 204-06 (3d Cir. 1998) (court should conduct in camera inspection if defendant raises issue of materiality
in regard to company trade secret information redacted from documentary evidence by employees with no oversight by court,
government, or defense); U.S. v. Alvarez, 358 F.3d 1194, 1207-09 (9th Cir. 2004) (court should have conducted in camera review
of probation files of critical coconspirator witness). But see, e.g., U.S. v. Rodriguez-Rivera, 473 F.3d 21, 26 n.1 (1st Cir. 2007)
(mere suggestion that coconspirator’s files could contain exculpatory evidence not sufficient to require in camera inspection);
U.S. v. Mitchell, 178 F.3d 904, 907 (7th Cir. 1999) (mere speculation that government file may contain discoverable information
not sufficient to require in camera inspection). The government, however, is not excused from discovery obligations by its good
faith belief that the defendant’s written statements are not discoverable. See, e.g., U.S. v. Scafe, 822 F.2d 928, 936 (10th Cir. 1987)
(government’s good faith belief that documents are not discoverable when intended to be used only for impeachment is irrelevant).
1147 See, e.g., U.S. v. Hansen, 434 F.3d 92, 102 (1st Cir. 2006) (no abuse of discretion to refuse new trial despite government’s failure to
disclose evidence because defendant failed to demonstrate that the evidence in question would produce a different result at trial);
U.S. v. Wecht, 484 F.3d 194, 212 (3d Cir. 2007) (no abuse of discretion to require disclosure of FBI personnel records because
district court properly balanced public interest in disclosure and private interest in confidentiality); U.S. v. Cuellar, 478 F.3d 282,
293-94 (5th Cir. 2007) (en banc) (no abuse of discretion when court refused full disclosure of expert testimony because defendant
already had sufficient testimonial evidence for rebuttal); U.S. v. Blood, 435 F.3d 612, 627 (6th Cir. 2006) (no abuse of discretion
when court did not compel production of criminal history because government already disclosed that witness had no criminal
history and defense made no showing that requested documentation was material to defense); U.S. v. Baker, 453 F.3d 419, 424-25
(7th Cir. 2006) (no abuse of discretion when court refused discovery of sealed information of gun’s history because it was not used
in government’s case-in-chief, obtained from defendant, and immaterial to defense because it was not inculpatory, exculpatory, or
helpful for impeachment); U.S. v. Robinson, 439 F.3d 777, 780 (8th Cir. 2006) (no abuse of discretion when court refused
discovery of government’s internal investigative documents because disclosure of work product not required by Rule 16); U.S. v.
Zone, 403 F.3d 1101, 1107 (9th Cir. 2005) (per curiam) (no abuse of discretion when court refused discovery of law enforcement
task force’s decisionmaking process because defendant failed to make necessary showing of undue collusion between federal
authorities); U.S. v. Alcaraz-Arellano, 441 F.3d 1252, 1265-66 (10th Cir. 2006) (no abuse of discretion denying discovery of
records of deputy’s arrests and charges because defendant already possessed relevant information relating to selective stops); U.S.
v. Stanfield, 360 F.3d 1346, 1358 (D.C. Cir. 2004) (no abuse of discretion where court determined 9 minutes was sufficient time to
review Jencks materials). But see, e.g., U.S. v. Ganier, 468 F.3d 920, 928 (6th Cir. 2006) (district court abused its discretion in
excluding expert testimony that was not timely disclosed because the court did not consider the reasons for the delay, the prejudice
to the defendant and whether a less severe sanction would be more appropriate).
In exceptional circumstances, the district court may grant the government an ex parte hearing. See FED. R. CRIM. P. 16(d)(1); see,
e.g., U.S. v. Madori, 419 F.3d 159, 171 (2d Cir. 2005) (no abuse of discretion to grant government’s motion for ex parte hearing
because concern for witness’s safety outweighed any prejudice resulting from withholding immaterial information from defense);
U.S. v. Napue, 834 F.2d 1311, 1320-21 (7th Cir. 1987) (no abuse of discretion to grant government’s motion for ex parte hearing
because government presented ample evidence of defendant’s violent nature and danger to witnesses if identities were disclosed
before trial); U.S. v. Klimavicius-Viloria, 144 F.3d 1249, 1261-62 (9th Cir. 1998) (no abuse of discretion for court to conduct ex
parte hearing for purpose of classified material review under Rule 16(d)(1) and CIPA).
1148 See FED. R. CRIM. P. 16(d)(2); see, e.g., U.S. v. Soto-Beniquez, 356 F.3d 1, 38 (1st Cir. 2003) (no abuse of discretion to impose
sanction limiting expert witness’s testimony to ballistics and not firearms because government disclosed witness would testify but
did not disclose witness’s expertise); U.S. v. Miller, 116 F.3d 641, 681 (2d Cir. 1997) (no abuse of discretion to consider granting
continuance because state belatedly produced document); V.I. v. Blake, 118 F.3d 972, 977 (3d Cir. 1997) (no abuse of discretion to
exclude photos and physical evidence produced on morning of trial); U.S. v. Muse, 83 F.3d 672, 674-76 (4th Cir. 1996) (no abuse
of discretion where court declined to sanction government and admitted photo identification that government had not disclosed
before trial because government did not knowingly withhold information and identification not central to defense strategy); U.S. v.
Katz, 178 F.3d 368, 372 (5th Cir. 1999) (no abuse of discretion where court excluded testimony of government’s witness given
government’s “unprofessional conduct” in failing to disclose information); U.S. v. Clark, 385 F.3d 609, 621 (6th Cir. 2004) (no
abuse of discretion to deny mistrial as a result of government’s willful refusal to disclose agent’s rough interview notes because

court compelled disclosure and provided defense counsel opportunity to cross-examine witness); U.S. v. Breland, 356 F.3d 787,
797 (7th Cir. 2004) (no abuse of discretion though court denied defendant’s motion to suppress additional conviction on
defendant’s record that was not disclosed by government because Rule 16 does not mandate suppression as sanction); U.S. v.
Hyles, 479 F.3d 958, 967 (8th Cir. 2007) (no abuse of discretion in admitting undisclosed phone recordings because district court
would have allowed a continuance if issues regarding the recordings came up at trial); U.S. v. Danielson, 325 F.3d 1054, 1075 (9th
Cir. 2003) (no abuse of discretion though court denied defendant’s motions for mistrial and for new trial based on government’s
alleged Rule 16 violation because court’s suppression of evidence and curative instructions adequately addressed any violation);
U.S. v. Bishop, 469 F.3d 896, 904 (10th Cir. 2006) (no abuse of discretion where court allowed continuance instead of excluding
evidence and defense counsel never indicated that time allotted for continuance would be insufficient to review improperly
disclosed e-mails); U.S. v. Accetturo, 966 F.2d 631, 636 (11th Cir. 1992) (no abuse of discretion when court did not sanction
government for failing to disclose victim’s entire testimony because defendant failed to show prejudice to substantial rights); U.S.
v. Marshall, 132 F.3d 63, 69 (D.C. Cir. 1998) (no abuse of discretion when court did not sanction government for not disclosing jail
visitation records). But see, e.g., U.S. v. Lanoue, 71 F.3d 966, 977-79 (1st Cir. 1995) (abuse of discretion when court did not
declare mistrial after government failed to disclose recording of defendant, and substantial prejudice resulted from government’s
use of recording in cross-examining defendant’s alibi witness), abrogated on other grounds by U.S. v. Watts, 519 U.S. 148, 149
(1997) (per curiam); V.I. v. Fahie, 419 F.3d 249, 259 (3d Cir. 2005) (abuse of discretion to dismiss the case with prejudice because
no showing of “willful government misconduct,” and prejudice to defendant could be corrected with lesser remedy of mistrial);
U.S. v. Capers, 61 F.3d 1100, 1104 (4th Cir. 1995) (possible abuse of discretion when court found requested discovery material
irrelevant without conducting in camera inspection; however, defendant not prejudiced because other ways to obtain same
information existed); U.S. v. Garrett, 238 F.3d 293, 301 (5th Cir. 2000) (abuse of discretion to exclude testimony of 25 witnesses
because less severe sanction could have eliminated minor prejudice produced by delay in disclosure); U.S. v. Ganier, 468 F.3d 920,
928 (6th Cir. 2006) (abuse of discretion where court excluded testimony despite the availability of less severe sanctions against the
government, such as a continuance, for not properly disclosing summary of expert testimony); U.S. v. Johnson, 228 F.3d 920, 926
(8th Cir. 2000) (abuse of discretion when court excluded expert testimony and failed to consider less severe sanctions); U.S. v.
Golyansky, 291 F.3d 1245, 1249-50 (10th Cir. 2002) (abuse of discretion to exclude government witness because continuance
could have cured prejudice).
1149 See FED. R. CRIM. P. 16 advisory committee’s note; see, e.g., U.S. v. Sepulveda, 15 F.3d 1161, 1178-79 (1st Cir. 1993) (no abuse
of discretion to deny defendant’s motion for mistrial because prosecution did not know of existence of undisclosed report and it
was outside government’s control); U.S. v. Hammoud, 381 F.3d 316, 336 (4th Cir. 2004) (no abuse of discretion by declining to
sanction defense counsel for not accepting continuance because government informed defense it was seeking expert and informed
defense when expert was retained), vacated on other grounds, 543 U.S. 1097 (2005), and abrogated on other grounds by U.S. v.
Booker, 543 U.S. 220 (2005); U.S. v. Tarwater, 308 F.3d 494, 516 (6th Cir. 2002) (no abuse of discretion to admit expert’s revised
reports that were disclosed day before expert testified because defense was able to review revisions before cross-examination,
revisions were necessitated by information obtained from defendant shortly before trial, and defendant did not show that delay
affected outcome of trial); U.S. v. De La Rosa, 196 F.3d 712, 717 (7th Cir. 1999) (no abuse of discretion for offering continuance
instead of exclusion for alleged Rule 16 violation where no bad faith); U.S. v. Pherigo, 327 F.3d 690, 694-95 (8th Cir. 2003) (no
abuse of discretion to refuse to sanction government for delay in production of phone logs because neither party alleged bad faith);
U.S. v. Martinez, 455 F.3d 1127, 1131 (10th Cir. 2006) (no abuse of discretion to reject defendant’s motion for mistrial where
government failed to disclose government agent’s file on defendant because defendant made no claim of bad faith); U.S. v.
Marshall, 132 F.3d 63, 68 (D.C. Cir. 1998) (no abuse of discretion to admit local police records during trial because government
discovered records during trial, disclosed them to defendant upon discovery, and did not act in bad faith).
1150 See FED. R. CRIM. P. 16 advisory committee’s note; see, e.g., U.S. v. Lanoue, 71 F.3d 966, 977-79 (1st Cir. 1995) (prejudice
found because government’s nondisclosure of recording of defendant deprived defendant of opportunity to investigate
circumstances of statement and to design intelligent litigation strategy), abrogated on other grounds by Watts, 519 U.S. at 148;
U.S. v. Thomas, 239 F.3d 163, 168 (2d Cir. 2001) (prejudice found because government’s failure to produce transcript before
defendant testified adversely affected defendant’s trial strategy including decision to testify); U.S. v. Katz, 178 F.3d 368, 372 (5th

Cir. 1999) (prejudice found because government provided defense only with poor quality, black and white images instead of high-
quality, color images); U.S. v. Davis, 244 F.3d 666, 671-72 (8th Cir. 2001) (prejudice found because government provided DNA
evidence on eve of trial, preventing defense from evaluating and confronting evidence); U.S. v. Camargo-Vergara, 57 F.3d 993,
998-99 (11th Cir. 1995) (prejudice found because government failed to disclose defendant’s post-arrest statement that cocaine felt
strange; evidence shattered claim that defendant had no experience with cocaine and corroborated testimony of codefendant). But
see, e.g., U.S. v. Hansen, 434 F.3d 92, 102-03 (1st Cir. 2006) (no prejudice though government failed to disclose evidence of co-
conspirator’s erratic behavior because relevance was unclear and more likely to imply defendant’s guilt); U.S. v. Miller, 116 F.3d
641, 681 (2d Cir. 1997) (no prejudice despite delayed disclosure of drug records because court indicated that defendant could
present expert testimony during defendant’s case); U.S. v. Davis, 397 F.3d 173, 178 (3d Cir. 2005) (no abuse of discretion in
denying new trial in response to government’s failure to disclose summary of expected expert testimony because defendants failed
to argue prejudice); U.S. v. Holmes, 406 F.3d 337, 358 (5th Cir. 2005) (no prejudice despite government’s failure to disclose
summary of interview with defendant because defendant could not “credibly suggest that he would not have testified” if document
produced); U.S. v. Davis, 306 F.3d 398, 421 (6th Cir. 2002) (no prejudice despite delayed disclosure of witness tapes because
defendant given opportunity to review tapes and recall witness); U.S. v. Stevens, 380 F.3d 1021, 1026 (7th Cir. 2004) (no prejudice
despite government’s failure to disclose scientific tests allegedly within government’s possession because defense counsel failed to
request continuance and was able to adequately cross-examine witness); U.S. v. Huber, 404 F.3d 1047, 1062 (8th Cir. 2005) (no
prejudice despite government’s failure to disclose summary of forms and amounts of income because district court ensured all
numbers used in calculating forfeiture were proper); U.S. v. Rivera-Relle, 322 F.3d 670, 678 (9th Cir.) (no prejudice despite
government’s failure to preserve dispatch tape because defendant had opportunity to cross-examine officers and tape was of
dubious relevance), amended by 333 F.3d 914 (9th Cir. 2003); U.S. v. Martinez, 455 F.3d 1127, 1131 (10th Cir. 2006) (no prejudice
though government failed to disclose agent’s potentially exculpatory report because defendant was able to cross-examine agent
effectively); U.S. v. Tinoco, 304 F.3d 1088, 1119-20 (11th Cir. 2002) (no prejudice despite failure to disclose officer’s testimony
concerning market value of seized drugs because defendant failed to show ability to present defense was affected).
If the undisclosed materials are not useful to the defendant or if the defendant already knows of their existence, the discovery
violation is not prejudicial. See, e.g., U.S. v. Vega-Figueroa, 234 F.3d 744, 750 (1st Cir. 2000) (no prejudice despite delayed
disclosure of FBI agent’s notes and photos because defendant did not specify how ability to defend case was impaired or how he
would have altered defense if information was timely disclosed); U.S. v. Yousef, 327 F.3d 56, 146-47 (2d Cir. 2003) (no prejudice
despite failure to disclose witness’s notes regarding defendant’s statements until day before witness testified because government
previously disclosed substance of notes; notes added nothing material to defense); U.S. v. Messerlian, 832 F.2d 778, 795-96 (3d
Cir. 1987) (no prejudice despite failure to disclose medical report because medical expert’s testimony was “cumulative or
incredible” and-thus no substantial rights of defendants were affected), abrogated on other grounds by Graham v. Connor, 490 U.S.
386 (1989); U.S. v. Derrick, 163 F.3d 799, 818 (4th Cir. 1998) (no prejudice despite failure to produce taped conversations because
tape had been produced for inspection even though defense counsel had no opportunity to view it); U.S. v. Whiteside, 810 F.2d
1306, 1308 (5th Cir. 1987) (no prejudice despite failure to disclose flier printed by defendant because flier contributed little weight
to already overwhelming evidence against defendant); U.S. v. Clark, 385 F.3d 609, 616 (6th Cir. 2004) (no prejudice despite
government’s nondisclosure of agent’s interview notes because government disclosed “[m]ost of the essentials” and nondisclosed
information was not exculpatory); U.S. v. Newell, 239 F.3d 917, 921 (7th Cir. 2001) (no prejudice despite failure to disclose
foreign documents because documents were defendant’s own accounts of his activities in Bermuda); U.S. v. McCourt, 468 F.3d
1088, 1093 (8th Cir. 2006) (no prejudice despite failure to disclose mistakes in government agent’s report regarding timestamps on
child pornography computer files and number of files downloaded because defendant’s expert already had the raw data and the
information was immaterial); U.S. v. Ivy, 83 F.3d 1266, 1281 (10th Cir. 1996) (no prejudice despite failure to disclose transcription
of defendant’s interview with government agent because defendant knew of report’s existence and did not request continuance);
U.S. v. Bueno-Sierra, 99 F.3d 375, 380 (11th Cir. 1996) (no prejudice despite late disclosure because government introduced
“significant other evidence” at trial to substantiate that defendant imported cocaine); U.S. v. Brodie, 871 F.2d 125, 128-30 (D.C.
Cir. 1989) (no prejudice despite failure to disclose transcript of secretly recorded conversation between defendant and informant
because defendant knew recording existed and transcript contained nothing exculpatory or supportive of potential line of defense).
Courts sometimes apply harmless error analysis to the issue of prejudice to the defendant. See, e.g., U.S. v. Bruck, 152 F.3d 40, 47
(1st Cir. 1998) (admission of testimony consisting of short exchange between agent and prosecutor that constituted improperly
admitted expert opinion was harmless error in view of other strong evidence indicating defendant’s guilt); U.S. v. Brown, 303 F.3d

582, 592 (5th Cir. 2002) (even if discrepancy between FBI agent’s undisclosed interview notes and disclosed composite report was
significant, district court’s failure to order disclosure of the notes was harmless error in light of defendant’s testimony); U.S. v.
Carr, 965 F.2d 408, 412 (7th Cir. 1992) (failure to disclose government agent’s report of meeting with informant was harmless error
because other documents received by defendant before trial covered contents of missing report); U.S. v. Sanchez, 963 F.2d 152,
156 (8th Cir. 1992) (denial of defendant’s motion for production of documents filed with INS was harmless error because
documents neither enhanced credibility of government witness nor were useful for impeachment purposes and documents had no
bearing on question of defendant’s guilt); U.S. v. Figueroa-Lopez, 125 F.3d 1241, 1246 (9th Cir. 1997) (admission of agent’s expert
testimony regarding drug trafficking profile as lay opinion without giving defendant notice was harmless error because agent was
qualified and defendant did not show verdict would have differed if notice had been given); U.S. v. Sasser, 971 F.2d 470, 481 (10th
Cir. 1992) (prosecution’s failure to disclose presentence reports in possession of prosecution was harmless error because reports
contained nothing substantially inconsistent with evidence offered at trial). For further discussion, see Harmless Error in
APPEALS in Part V.
Although delay in disclosure may violate Rule 16, delay alone is seldom sufficient to create prejudice to the defendant, especially
when the defendant receives the requested materials in time for effective use at trial. See, e.g., U.S. v. Sepulveda, 15 F.3d 1161,
1179 (1st Cir. 1993) (no prejudice despite government’s delayed disclosure of reports on key prosecution witness because
defendants received reports during defendant’s testimony and were able to incorporate contents effectively into cross-examination);
U.S. v. Gaytan, 74 F.3d 545, 556 (5th Cir. 1996) (no prejudice despite government’s delay in disclosing names of kidnapping
victims because defendant waited until month before trial to move for dismissal and court ordered government to disclose names 2
weeks before trial); U.S. v. Warren, 454 F.3d 752, 760 (7th Cir. 2006) (no prejudice despite failure to promptly disclose U.S.
Attorney’s notes from interview with defendant because defendant made use of the notes during cross-examination, did not request
a continuance, and failed to explain what he would have done differently had he had the notes earlier); U.S. v. Anderson, 446 F.3d
870, 875-76 (8th Cir. 2006) (no prejudice despite belated notice of expert’s proposed testimony because court allowed opportunity
to interview witness prior to testimony and limited testimony to general information of gambling operations); U.S. v. Baker, 10
F.3d 1374, 1398 (9th Cir. 1993) (no prejudice despite alleged discovery violations because court routinely granted defense recesses
and continuances to examine newly discovered evidence or to prepare to cross-examine unanticipated witnesses), overruled on
other grounds by U.S. v. Nordby, 225 F.3d 1053 (9th Cir. 2000); U.S. v. Hastamorir, 881 F.2d 1551, 1558-59 (11th Cir. 1989) (no
prejudice despite government’s delay in disclosing evidence of latent fingerprints on drug package because defendant was
informed of fingerprints’ existence 4 days before trial).
1151 See FED. R. CRIM. P. 16 advisory committee’s note; see, e.g., U.S. v. Tin Yat Chin, 476 F.3d 144, 146 (2d Cir. 2007) (1-day
continuance to prepare for cross-examination of government’s surprise expert handwriting witness was sufficient to cure prejudice
where defendant had his own handwriting expert and the court could reasonably infer that counsel “had sufficiently immersed
himself in the technicalities” to be able to prepare adequate cross-examination); U.S. v. Hammoud, 381 F.3d 316, 336 (4th Cir.
2004) (continuance sufficient to cure prejudice caused by government’s failure to disclose expert witness in timely manner),
vacated on other grounds, 543 U.S. 1097 (2005), abrogated on other grounds by Booker, 543 U.S. at 220; U.S. v. Garrett, 238 F.3d
293, 299 (5th Cir. 2000) (continuance sufficient to cure “minor prejudice” from government’s pretrial failure to turn over
documents relating to witnesses because defense counsel could have effectively used material during trial with “some extra
effort”); U.S. v. White, 985 F.2d 271, 276 (6th Cir. 1993) (week-long continuance sufficient to cure potential prejudice from
prosecution’s delayed disclosure 3 days prior to trial of 5 rounds of ammunition found in defendant’s car); U.S. v. Flores-Mireles,
112 F.3d 337, 340 (8th Cir. 1997) (continuance sufficient to cure prejudice after government withheld discoverable tapes because
defendant had time to transcribe, review, and use tapes); U.S. v. Bishop, 469 F.3d 896, 905 (10th Cir. 2006) (continuance sufficient
to cure prejudice caused when government failed to disclose an e-mail that showed defendant threatened to hurt witness if she
agreed to testify); U.S. v. Marshall, 132 F.3d 63, 69 (D.C. Cir. 1998) (continuance sufficient to cure prejudice because defense
knowingly made false opening statements that were contradicted by jail visitation records that government had failed to disclose).
But see, e.g., U.S. v. Davis, 244 F.3d 666, 672 (8th Cir. 2001) (continuance insufficient to cure government’s delayed disclosure of
DNA evidence because scheduling conflicts would have made continuance impossible); U.S. v. Wicker, 848 F.2d 1059, 1061-62
(10th Cir. 1988) (continuance insufficient to cure government’s failure to comply with discovery schedule; suppression of evidence
appropriate because delay was caused by government’s failure to remind expert witness to type and forward report, defendant
could not prepare defense or retain expert witness without government report, court docket was full, trial was postponed once

before, and parties agreed to original discovery schedule).

In some circuits, a defendant who fails to move for a continuance upon learning that the government failed to comply with a
discovery request waives the issue of prejudice on appeal. See, e.g., U.S. v. Vega-Figueroa, 234 F.3d 744, 751 (1st Cir. 2000) (no
abuse of discretion to admit FBI agent’s notes and photos because defendant did not request continuance); U.S. v. Giraldo, 822
F.2d 205, 212 (2d Cir. 1987) (no abuse of discretion to admit government’s previously undisclosed evidence; right to appeal issue
effectively waived when defendant made no motion for continuance but merely insisted that evidence be excluded); U.S. v. Glover,
846 F.2d 339, 342 (6th Cir. 1988) (same); U.S. v. Stevens, 380 F.3d 1021, 1026 (7th Cir. 2004) (no abuse of discretion to admit
expert fingerprint report because defendant did not request continuance or demonstrate prejudice); U.S. v. Kenyon, 481 F.3d 1054,
1062 (8th Cir. 2007) (no abuse of discretion in permitting doctor to testify about increasing extent of sexual abuse, though
government failed to disclose that the witness would testify about this information, because defendant did not object to testimony
or seek continuance); U.S. v. Wilson, 160 F.3d 732, 741 (D.C. Cir. 1998) (no abuse of discretion to admit witness’s recanted
statement because defendant did not request continuance). But see, e.g., U.S. v. Davis, 244 F.3d 666, 672 (8th Cir. 2001) (finding of
prejudice justified district court’s exclusion of DNA evidence, despite defendant’s failure to request a continuance, because
defendant had no reason to do so after the court excluded the evidence and granting a continuance would have involved significant
scheduling problems).
1152 18 U.S.C. § 3500. The Jencks Act applies only to federal prosecutions. See, e.g., Martin v. Maggio, 711 F.2d 1273, 1283 (5th Cir.
1983) (per curiam) (defendant in state criminal trial is not entitled to Jencks Act discovery); Lincoln v. Sunn, 807 F.2d 805, 816
(9th Cir. 1987) (same).
1153 Rule 26.2(g) extends Jencks Act discovery to proceedings under other Federal Rules of Criminal Procedure. See id. Rule 26.2(g)
was amended to extend the Jencks Act to: (1) trial under Rule 26.2; (2) suppression hearings under Rule 12; (3) preliminary
hearings under Rule 5.1(h); (4) sentencings under Rule 32(i)(2); (5) hearings to revoke or modify probation or supervised release
under Rule 32.1(e); (6) detention hearings under Rule 46(j); and (7) to the extent specified in Rule 8 of the Rules Governing
Proceedings under 28 U.S.C. § 2255. See FED. R. CRIM. P. 26.2(g).
1154 See, e.g., U.S. v. Moore, 452 F.3d 382, 389 (5th Cir. 2006) (per curiam) (recordings of 78 conversations between defendant and
witness were Jencks Act statements); U.S. v. Johnson, 200 F.3d 529, 535 (7th Cir. 2000) (statements read to and approved by
witness were Jencks Act statements). But see, e.g., Ferrara v. U.S., 456 F.3d 278, 292 n.8 (1st Cir. 2006) (detective’s memo
memorializing witness’s recantation of grand jury testimony not Jencks Act statement because it was only a summary of the
recantation and was not “signed or otherwise adopted” by the witness); U.S. v. Bros. Constr. Co. of Ohio, 219 F.3d 300, 316 (4th
Cir. 2000) (written summary of statements not Jencks Act material because witnesses refused to adopt statements as their own);
U.S. v. McGee, 408 F.3d 966, 973 (7th Cir. 2005) (presentence reports of government witnesses not discoverable Jencks Act
statements because reports prepared by probation officers with little input from witnesses); U.S. v. Anwar, 428 F.3d 1102, 1112 (8th
Cir. 2005) (contents of witness interview not Jencks Act statements because no written adoption); U.S. v. Cedeno-Arellano, 332
F.3d 568, 571-72 (9th Cir. 2003) (notes taken in drug-detection dog’s training log not Jencks Act statements); U.S. v. Jordan, 316
F.3d 1215, 1255 (11th Cir. 2003) (investigating agents’ raw notes, summaries of interviews, FBI reports, and internal
communications not Jencks Act statements because not substantially verbatim and no evidence of adoption or approval by
witness); U.S. v. Oruche, 484 F.3d 590, 598 (D.C. Cir. 2007) (detective’s notes recorded during a “debriefing” of witness not
Jencks Act statements because they were not a full transcription of the witness’s statements and no evidence of approval by the
witness).
1155 See 18 U.S.C. § 3500(b); FED. R. CRIM. P. 26.2(a); see, e.g., U.S. v. Neal, 36 F.3d 1190, 1197 (1st Cir. 1994) (defendant entitled
to production of prior statements of government witnesses only after witnesses’ direct examinations); U.S. v. Gluzman, 154 F.3d
49, 51 (2d Cir. 1998) (per curiam) (same); U.S. v. Martinez, 151 F.3d 384, 389 (5th Cir. 1998) (defendant entitled to production of
evidence impeaching witness only after witness’s direct examination); U.S. v. Green, 151 F.3d 1111, 1115 (8th Cir. 1998)
(defendant entitled to production of witness’s grand jury transcript only after witness’s direct examination); U.S. v. Tarantino, 846

F.2d 1384, 1418 (D.C. Cir. 1988) (per curiam) (defendant entitled to production of statements made by coconspirator and
prospective government witness only after coconspirator’s direct testimony). But see, e.g., U.S. v. Nelson-Rodriguez, 319 F.3d 12,
37 (1st Cir. 2003) (no violation where government disclosed FBI agent’s report days before agent’s testimony because defendant
was only entitled to production of report after witness testified); U.S. v. Greer, 939 F.2d 1076, 1098 (5th Cir. 1991) (defendant not
entitled to discover grand jury transcripts of 5 government witnesses who never testified at trial), aff’d on reh’g, 968 F.2d 433 (5th
Cir. 1992); U.S. v. Williams, 165 F.3d 1193, 1195-96 & n.4 (8th Cir. 1999) (defendant not entitled to discover handwriting expert’s
report before witness testified); U.S. v. Barker, 988 F.2d 77, 78-79 (9th Cir. 1993) (defendant not entitled to discover fact before
trial that prosecution witness, who failed to identify defendant in lineup, subsequently identified defendant from photo of lineup;
Jencks Act applies only to discovery following witness’s testimony on direct examination); U.S. v. Schier, 438 F.3d 1104, 1112
(11th Cir. 2006) (defendant not entitled to discover agents’ notes because 1 agent did not testify at trial and defendant failed to
request remaining agents’ notes). The district court has discretion, however, to order production of Jencks Act material before the
witness testifies. See, e.g., U.S. v. Blackburn, 9 F.3d 353, 357-58 (5th Cir. 1993) (no abuse of discretion to order government to
produce Jencks Act material before trial instead of after testimony as statute requires).
1156 See 18 U.S.C. § 3500(b); FED. R. CRIM. P. 26.2(a); see, e.g., U.S. v. Merlino, 349 F.3d 144, 155 (3d Cir. 2003) (no obligation to
disclose recorded statements of witness’s testimony held by Bureau of Prisons because Bureau is not “prosecutorial arm of the
federal government”); U.S. v. Chen, 131 F.3d 375, 378 (4th Cir. 1997) (no obligation to disclose transcript of witness’s prior
testimony in sealed juvenile proceeding because government did not have custody of transcript); U.S. v. Crowley, 285 F.3d 553,
561 (7th Cir. 2002) (no obligation to disclose alleged pretrial statements by witness because nothing on record definitively showed
government possessed any such statements); U.S. v. Durham, 941 F.2d 858, 861 (9th Cir. 1991) (no obligation under Jencks Act to
disclose notes taken by state investigator during witness interview because federal government did not possess notes and no
indication of joint investigation with state officials); U.S. v. Chanthadara, 230 F.3d 1237, 1254-55 (10th Cir. 2000) (no obligation
to disclose expert witness’s testimony at previous trials because transcripts not in government’s possession); U.S. v. Calderon, 127
F.3d 1314, 1334-35 (11th Cir. 1997) (no obligation to provide transcript of prior witness testimony in related matter because
government did not possess transcript).
1157 See 18 U.S.C. § 3500(b); FED. R. CRIM. P. 26.2(a); see, e.g., U.S. v. Schneiderhan, 404 F.3d 73, 80 (1st Cir. 2005) (government
not required under Jencks Act to produce witness’s general letter referring to government’s investigative techniques because
statements did not relate specifically to witness’s testimony); U.S. v. Pacelli, 491 F.2d 1108, 1118 (2d Cir. 1974) (government not
required under Jencks Act to produce witness’s statements about his involvement in narcotics business because statements did not
relate to subject matter testimony); U.S. v. Ramirez, 145 F.3d 345, 356 (5th Cir. 1998) (government not required under Jencks Act
to produce agent’s interview material because it did not relate to subject matter of testimony); U.S. v. Susskind, 4 F.3d 1400, 1404-
05 (6th Cir. 1993) (en banc) (government not required under Jencks Act to produce witness’s statements related to subject matter at
issue in case but not related to witness’s direct testimony); U.S. v. Pittman, 82 F.3d 152, 156 (7th Cir. 1996) (government not
required under Jencks Act to disclose portion of IRS agent’s report not related to agent’s testimony); U.S. v. Kamerud, 326 F.3d
1008, 1015 (8th Cir. 2003) (government not required under Jencks Act to produce officer’s grand jury testimony because it did not
relate to subject matter of testimony); U.S. v. Casamayor, 837 F.2d 1509, 1513 (11th Cir. 1988) (per curiam) (government not
required under Jencks Act to produce tape recording of conversation between government’s witness and defendant’s witness
because conversation not mentioned during direct examination); U.S. v. Oruche, 484 F.3d 590, 599 (D.C. Cir. 2007) (government
not required under Jencks Act to disclose witness’s grand jury testimony admitting she lied in unrelated murder to protect
boyfriend because it did not relate to direct testimony). But see, e.g., U.S. v. Lewis, 35 F.3d 148, 152 (4th Cir. 1994) (government
required to provide portions of investigative report containing agent’s summaries of witness interviews because summaries related
to subject matter of testimony); U.S. v. Brumel-Alvarez, 991 F.2d 1452, 1464-65 (9th Cir. 1993) (government required to release
agent witness’s memorandum because it related to meetings and investigations about which he testified and it could have provided
impeachment evidence to defendant).
Courts occasionally frame the relatedness analysis in terms of prejudice to the defendant. See, e.g., U.S. v. Barlin, 686 F.2d 81, 92
(2d Cir. 1982) (no prejudice to defendant because lost or destroyed Jencks Act statements related to telephone conversation not
mentioned during direct examination); Dickson v. Quarterman, 453 F.3d 643, 648-49 (5th Cir. 2006) (possible prejudice to

defendant when government failed to disclose witnesses’ statements related to subject matter of testimony that could have been
used to impeach); U.S. v. Hamaker, 455 F.3d 1316, 1327 (11th Cir. 2006) (no prejudice to defendants from withheld documents
connected to charges against them).
1158 See Goldberg v. U.S., 425 U.S. 94, 108 (1976) (district courts should make initial determinations of whether statements constitute
Jencks Act material); see, e.g., U.S. v. Rosario-Peralta, 175 F.3d 48, 56 (1st Cir. 1999) (district court should have considered
whether Central Communications Agency logs were Jencks Act material; making initial determination is not role of appellate
court); U.S. v. Johnson, 820 F.2d 1065, 1073 (9th Cir. 1987) (district court’s determination that government possessed no Jencks
Act statements not clearly erroneous when court directed government to provide all existing documents, defendant failed to object
to unsubstantiated hearsay testimony of FBI agent that no written statements existed, and defendant did not request further court
inquiries); U.S. v. Stanfield, 360 F.3d 1346, 1355-56 (D.C. Cir. 2004) (district court should have reviewed probation officer’s files
before denying discovery).
1159 See, e.g., U.S. v. Scotti, 47 F.3d 1237, 1250 (2d Cir. 1995) (Jencks Act discovery waived because defendant did not make request
until cross-examination); U.S. v. Knapp, 25 F.3d 451, 460 (7th Cir. 1994) (Jencks Act discovery waived because defendant failed to
request IRS agent’s report following agent’s testimony); U.S. v. Hanna, 55 F.3d 1456, 1459 (9th Cir. 1995) (Jencks Act discovery
waived because defendant failed to make timely motion for production of grand jury testimony and other witness statements
following their testimony).
1160 See, e.g., U.S. v. Johnson, 200 F.3d 529, 535 (7th Cir. 2000) (defendant’s request for all Jencks Act material sufficiently specific
though he did not identify particular documents); U.S. v. Wallace, 848 F.2d 1464, 1470-71 (9th Cir. 1988) (“no ritual of words”
required to make Jencks Act request; defendant need only raise issue in timely manner and with sufficient precision to identify
statements requested). But see, e.g., U.S. v. Sanchez-Gonzalez, 294 F.3d 563, 568 (3d Cir. 2002) (discovery properly denied
because defendant failed to show with reasonable particularity that requested material existed); U.S. v. Boyd, 53 F.3d 631, 634 (4th
Cir. 1995) (same); U.S. v. Vieth, 397 F.3d 615, 621 (8th Cir. 2005) (same).
1161 See, e.g., U.S. v. Pepe, 747 F.2d 632, 657-58 (11th Cir. 1984) (Jencks Act request overbroad where government would have been
forced to find and produce all statements that witness, a former participant in organized crime, ever made about organized crime
and usury). But see, e.g., U.S. v. Roark, 924 F.2d 1426, 1431 (8th Cir. 1991) (court erred in ruling that 200-300 tapes made by
undercover agent need not be produced under Jencks Act because too voluminous).
1162 See 18 U.S.C. § 3500(b); FED. R. CRIM. P. 26.2(a); see, e.g., U.S. v. Hanna, 55 F.3d 1456, 1459 (9th Cir. 1995) (Jencks Act
discovery waived because request for production of statement was only made in pretrial motion, not after government witnesses
testified). But see, e.g., U.S. v. Newman, 849 F.2d 156, 159 (5th Cir. 1988) (pretrial agreement by government to disclose all
Jencks Act materials obligated government during trial to produce statements made by case-in-chief and rebuttal witnesses; no
burden on defendant to request material during trial).
1163 See 18 U.S.C. § 3500(e)(1); FED. R. CRIM. P. 26.2(f)(1); see, e.g., U.S. v. Richards, 241 F.3d 335, 342 (3d Cir. 2001) (defendant
entitled to discover FBI agent’s report of nontestifying codefendant’s statement because report should have been disclosed after
agent testified); U.S. v. Johnson, 200 F.3d 529, 535 (7th Cir. 2000) (defendant entitled to discover statements read to and approved
by witness because such statements were adopted by witness for Jencks Act purposes); U.S. v. Wallace, 848 F.2d 1464, 1470 (9th
Cir. 1988) (defendant entitled to discover witness’s notes used while testifying because such use constitutes approval of notes as
witness’s own statements). But see, e.g., U.S. v. Marrero-Ortiz, 160 F.3d 768, 775-76 (1st Cir. 1998) (defendant not entitled to
discover written summary of witness interview because lack of evidence that witness adopted it); U.S. v. Scotti, 47 F.3d 1237,
1249 (2d Cir. 1995) (defendant not entitled to discover FBI agent’s rough notes of witness interview because of no indication that
witness signed, adopted, vouched for, or intended to be accountable for contents of notes); U.S. v. Bros. Constr. Co. of Ohio, 219

F.3d 300, 316 (4th Cir. 2000) (defendant not entitled to discover notes from witness’s interview because witnesses did not adopt
statements as their own); U.S. v. Martinez, 87 F.3d 731, 734-38 (5th Cir. 1996) (defendant not entitled to discover government
agent’s report from interview with witness because report not “recorded contemporaneously” with interview, report not verbatim
account, and witness never approved it); U.S. v. Medina, 992 F.2d 573, 580 (6th Cir. 1993) (defendant not entitled to discover DEA
interview report because notes were not read back to witness and witness neither read them herself nor otherwise adopted them);
U.S. v. Morris, 957 F.2d 1391, 1402 (7th Cir. 1992) (defendant not entitled to discover reports prepared by FBI agents summarizing
oral interviews with government witness because reports did not contain verbatim recital of any oral statement and were not
adopted by witness); U.S. v. Jordan, 316 F.3d 1215, 1255 (11th Cir. 2003) (defendant not entitled to discover investigating agents’
raw notes, summaries of interviews, FBI reports, or internal communications because statements were neither substantially
verbatim nor otherwise adopted by witnesses); U.S. v. Oruche, 484 F.3d 590, 599 n.1 (D.C. Cir. 2007) (defendant not entitled to
discover witness’s brief notations because witness did not sign or otherwise approve them).
The adoption of a statement is valid only if the witness first reads the statement or has the statements read to him or her and then
unambiguously signals approval. See Goldberg, 425 U.S. at 110 & n.19 (case remanded for inquiry into whether attorney’s notes
from conversation with witness were read to or by witness and whether witness signed, adopted, or approved them); see, e.g., U.S.
v. Marrero-Ortiz, 160 F.3d 768, 775 (1st Cir. 1998) (written summary of witness interview not discoverable because no evidence
that witness adopted notes in question); U.S. v. Smith, 31 F.3d 1294, 1301-02 (4th Cir. 1994) (prosecutor’s notes of witness
interview not discoverable because prosecutor and witness testified that witness had not seen, reviewed, or otherwise adopted
notes as her own); U.S. v. Lindell, 881 F.2d 1313, 1325-26 (5th Cir. 1989) (notes taken by government agent during interview of
codefendant not discoverable because codefendant neither signed nor approved notes); U.S. v. Farley, 2 F.3d 645, 654-55 (6th Cir.
1993) (FBI summaries of interviews with government witness not discoverable because no evidence that statements adopted by
witness); U.S. v. Morris, 957 F.2d 1391, 1402 (7th Cir. 1992) (reports prepared by FBI agents summarizing oral interviews with
government witness not discoverable because witness neither signed nor adopted reports); U.S. v. Grajales-Montoya, 117 F.3d 356,
363 (8th Cir. 1997) (notes taken when Spanish-English translator repeated witness’s answers not discoverable because statements
not read back to witness for approval); U.S. v. Jordan, 316 F.3d 1215, 1255 (11th Cir. 2003) (FBI agent’s raw interview notes and
report not discoverable because no evidence was offered to prove that statements were adopted by witness). But see, e.g., U.S. v.
Johnson, 200 F.3d 529, 535 (7th Cir. 2000) (witness statements discoverable because government had read back the statements to
witness and he assented to them); U.S. v. Boshell, 952 F.2d 1101, 1104 (9th Cir. 1991) (notes by government agent interviewing
witness were discoverable because they were occasionally read back to and confirmed by witness).
An in camera review may be appropriate when there is question as to whether a witness has adopted or approved a statement. See,
e.g., U.S. v. Ogbuehi, 18 F.3d 807, 810-11 (9th Cir. 1994) (in camera review appropriate when defendant had sufficient foundation
that codefendant adopted prosecutor’s notes as her statement); U.S. v. Smith, 984 F.2d 1084, 1086 (10th Cir. 1993) (hearing or in
camera review should have been granted where defendant established existence of interview notes, which may have been
discoverable witness statement under Jencks Act).
1164 See 18 U.S.C. § 3500(e)(2); FED. R. CRIM. P. 26.2(f)(2); see, e.g., Ferrara v. U.S., 456 F.3d 278, 292 n.8 (1st Cir. 2006)
(detective’s memo memorializing witness’s recantation of grand jury testimony not Jencks Act statement because it was only a
summary of the recantation and not substantially verbatim); U.S. v. Ramos, 27 F.3d 65, 69-70 (3d Cir. 1994) (officer’s rough notes
of interview with cooperating coconspirators not Jencks Act statements because not substantially verbatim recitals); U.S. v. Hall,
93 F.3d 126, 131 (4th Cir. 1996) (government’s notes from interview with witness not Jencks Act statement because witness never
saw notes and agents never asserted that notes were verbatim statements or approved by witness), abrogated on other grounds by
Richardson v. U.S., 526 U.S. 813 (1999); U.S. v. Williams, 998 F.2d 258, 269 (5th Cir. 1993) (FBI 302 forms, containing
summaries of interviews with government witness, not Jencks Act statements because they did not contain verbatim statements by
witness); U.S. v. Phibbs, 999 F.2d 1053, 1089 (6th Cir. 1993) (pretrial interview notes not Jencks Act statements because witness
did not adopt notes as substantially verbatim statements of interview); U.S. v. Pisello, 877 F.2d 762, 768 (9th Cir. 1989)
(government did not “admit” handwritten notes contained verbatim statements by producing typed, formal memoranda based on
notes; determination of whether notes taken by FBI agents in interviews with prospective witnesses contained verbatim statements
remained question of fact); U.S. v. Jordan, 316 F.3d 1215, 1255 (11th Cir. 2003) (agent’s raw interview notes and 302 report not
Jencks Act statements because statements not sufficiently verbatim); U.S. v. Oruche, 484 F.3d 590, 598 (D.C. Cir. 2007)
(detective’s notes recorded during witness “debriefing” not Jencks Act statements because they were not a full transcription of

witness’s statements and no evidence of approval by witness).
1165 See 18 U.S.C. § 3500(e)(3); FED. R. CRIM. P. 26.2(f)(3); see, e.g., U.S. v. Montgomery, 210 F.3d 446, 451 (5th Cir. 2000)
(government violated Jencks Act by failing to produce undercover officer’s grand jury testimony). But see, e.g., Ferrara v. U.S.,
456 F.3d 278, 292 n.8 (1st Cir. 2006) (detective’s memo memorializing witness’s recantation of grand jury testimony not Jencks
Act statement because only a summary of the recantation and not substantially verbatim); U.S. v. Susskind, 4 F.3d 1400, 1406 (6th
Cir. 1993) (en banc) (questions lawyer asked grand jury witness not Jencks Act statements); U.S. v. Murphy, 768 F.2d 1518, 1533
(7th Cir. 1985) (agent’s grand jury testimony regarding information that prosecutor expected third party to testify about at trial not
Jencks Act statement of third party and thus not subject to discovery); U.S. v. Kamerud, 326 F.3d 1008, 1015 (8th Cir. 2003)
(officer’s grand jury testimony summarizing testimony of another witness not Jencks Act statement and thus not subject to
discovery).
1166 See Goldberg, 425 U.S. at 105-06 (defendant not entitled to discover government attorney’s notes of mental impressions, personal
beliefs, trial strategy, or legal conclusions); see, e.g., U.S. v. LiCausi, 167 F.3d 36, 50 (1st Cir. 1999) (defendant not entitled to
notes of FBI agent’s investigation); U.S. v. Brown, 303 F.3d 582, 590 (5th Cir. 2002) (defendant not entitled to discover FBI
agent’s preparatory interview notes); U.S. v. Greatwalker, 356 F.3d 908, 911 (8th Cir. 2004) (defendant not entitled to discover
agent’s handwritten notes of witness interviews because typed accounts of interviews were provided); U.S. v. Alvarez, 86 F.3d 901,
906 (9th Cir. 1996) (defendant not entitled to discover police officer’s recorded surveillance notes because recording was intended
supplement to officer’s memory rather than statement about witness made in preparation for litigation); U.S. v. Jordan, 316 F.3d
1215, 1255 (11th Cir. 2003) (defendant not entitled to discover investigating agents’ raw notes, summaries of interviews, 302
reports, or internal communications); U.S. v. Donato, 99 F.3d 426, 433 (D.C. Cir. 1996) (defendant not entitled to agent’s notes
from interview with witness because notes only included agent’s “selection” of pertinent information and could not properly be
called witness’s “own words”).
1167 See, e.g., U.S. v. Welch, 810 F.2d 485, 490-91 (5th Cir. 1987) (defendant entitled to discover government agent’s summaries and
notes because agent testified at trial). But see, e.g., U.S. v. Alvarez, 86 F.3d 901, 906 (9th Cir. 1996) (defendant not entitled to
discover police officer’s recorded surveillance notes because recording was intended to supplement officer’s memory rather than
serve as statement about witness made in preparation for litigation; defendant entitled to discover final report based on tape
recording after officer’s testimony at trial). The Jencks Act does not prevent the government from instructing its agents not to take
notes during meetings with witnesses. See, e.g., U.S. v. Brimage, 115 F.3d 73, 76 (1st Cir. 1997) (no obligation to create Jencks Act
material by recording or taking notes of all aspects of witness interviews); U.S. v. Head, 586 F.2d 508, 511-12 (5th Cir. 1978)
(same); U.S. v. Bernard, 625 F.2d 854, 859 (9th Cir. 1980) (same).
1168 See, e.g., U.S. v. Page, 808 F.2d 723, 730-31 (10th Cir. 1987) (defendant not entitled to discover witness’s corporate records).
1169 See, e.g., U.S. v. Carrillo, 561 F.2d 1125, 1128 (5th Cir. 1977) (defendant not entitled to discover witness’s tax returns).
1170 See, e.g., U.S. v. Alexander, 789 F.2d 1046, 1049 (4th Cir. 1986) (defendant not entitled to discover witness’s computer study
consisting of programs and data printouts).
1171 See 18 U.S.C. § 3500(c); FED. R. CRIM. P. 26.2(c); Goldberg, 425 U.S. at 108 (district courts should make initial determinations
of whether statements constitute Jencks material); see, e.g., U.S. v. Vargas, 931 F.2d 112, 116 (1st Cir. 1991) (no error when court
refused to allow defendant to hear taped conversation involving confidential information because court reviewed tape in chambers
and concluded that search warrant affidavit accurately summarized contents); U.S. v. Gross, 961 F.2d 1097, 1105 (3d Cir. 1992) (no
error when court evaluated evidence in chambers after defendant suggested government’s notes were altered); U.S. v. Smith, 31

F.3d 1294, 1302-03 (4th Cir. 1994) (no error when court inspected notes in chambers, interrogated prosecutor who took notes, and
concluded that notes were not Jencks witness statement); U.S. v. Dale, 374 F.3d 321, 326 (5th Cir. 2004) (no error when court
inspected FBI 302 forms in chambers and concluded forms contained no Jencks statements), vacated on other grounds, 543 U.S.
1113 (2005); U.S. v. Kamerud, 326 F.3d 1008, 1015 (8th Cir. 2003) (no error when court refused to allow defendant access to
witness’s grand jury testimony because court reviewed transcript in chambers and determined it was not related to witness’s
testimony); U.S. v. Bramble, 103 F.3d 1475, 1479 (9th Cir. 1997) (no error when court properly inspected unredacted report in
chambers and refused to compel its production because redacted portions were irrelevant); U.S. v. Hamaker, 455 F.3d 1316, 1327
(11th Cir. 2006) (no error when court concluded that documents created during pretrial interviews of witnesses did not qualify as
Jencks statements because court reviewed documents in chambers and found they did not relate to the witnesses’ testimony). But
see, e.g., U.S. v. Rosario-Peralta, 175 F.3d 48, 55 (1st Cir. 1999) (error not to review records and logs of agencies before denying
discovery); U.S. v. Marshall, 985 F.2d 901, 908 (7th Cir. 1993) (error not to conduct in camera inspection of interview notes upon
reasonable argument by defendant); U.S. v. Smith, 984 F.2d 1084, 1086 (10th Cir. 1993) (error not to grant hearing or in camera
review of government interview notes of alleged coconspirator because defendant established existence of witness statement that
may have been discoverable under Jencks Act); U.S. v. Rivera Pedin, 861 F.2d 1522, 1527-28 (11th Cir. 1988) (error to rely on
government’s assurance that witness’s diary pages already produced were the only pages containing Jencks Act statements without
inspecting diary in chambers for dates covered by period of witness’s involvement in case).
If there is no indication that materials are subject to the Jencks Act, the court may refuse to inspect the disputed material. See, e.g.,
U.S. v. Hall, 93 F.3d 126, 130 (4th Cir. 1996) (no error when court refused to conduct in camera inspection of documents because
agents who took notes never asserted that they were either verbatim statements of witness or approved by witness), abrogated on
other grounds by Richardson v. U.S., 526 U.S. 813 (1999); U.S. v. Madrigal, 152 F.3d 777, 782 (8th Cir. 1998) (no error when
court refused to conduct in camera review of agent’s witness interview notes because defendant provided no basis for belief that
notes contained Jencks Act material); U.S. v. Delgado, 56 F.3d 1357, 1364 (11th Cir. 1995) (no error when court refused to conduct
in camera examination of reports because there was no showing they contained witness statements).
1172 See 18 U.S.C. § 3500(d); FED. R. CRIM. P. 26.2(e); see, e.g., U.S. v. Derrick, 163 F.3d 799, 807 (4th Cir. 1998) (abuse of
discretion to dismiss indictment for government’s discovery violations absent prejudice to defendant); U.S. v. Maples, 60 F.3d 244,
246 (6th Cir. 1995) (abuse of discretion to suppress inculpatory videotape because government’s failure to disclose was neither
deliberate nor prejudicial to defendant); U.S. v. McKoy, 78 F.3d 446, 451-52 (9th Cir. 1996) (abuse of discretion to declare mistrial
and suppress witness’s testimony in second trial because government’s failure to produce statements was unintentional, statements
were produced after mistake realized, and any prejudice was corrected by granting new trial); U.S. v. Golyansky, 291 F.3d 1245,
1250 (10th Cir. 2002) (abuse of discretion to exclude testimony of government witness because government did not act in bad faith
and defendant not greatly prejudiced).
1173 See, e.g., U.S. v. Gonzalez, 110 F.3d 936, 943 (2d Cir. 1997) (defendant not prejudiced by government’s failure to disclose
witness’s testimony because no material inconsistency between testimony and other witnesses’ trial testimony); U.S. v. Maloof,
205 F.3d 819, 827 (5th Cir. 2000) (defendant not prejudiced by failure to produce Jencks Act statement when no “substantial
inconsistency, contradiction or variation” between Jencks Act statement and subsequent testimony); U.S. v. Susskind, 4 F.3d 1400,
1407 (6th Cir. 1993) (defendant not prejudiced by court’s failure to require disclosure of witness’s statements under Jencks Act
because no inconsistencies between statements and witness’s testimony); U.S. v. Pittman, 82 F.3d 152, 156 (7th Cir. 1996)
(defendant not prejudiced by government’s failure to disclose portion of IRS agent’s report relevant to testimony at trial because
undisclosed material contained no impeachment evidence); U.S. v. Manfre, 368 F.3d 832, 843 (8th Cir. 2004) (defendant not
prejudiced by government’s failure to produce minor witnesses’ statements in part because they were consistent with trial
testimony); U.S. v. Sasser, 971 F.2d 470, 481 (10th Cir. 1992) (defendant not prejudiced by government’s failure to disclose
presentence reports in possession of prosecution on 2 key government witnesses because reports substantially consistent with
evidence at trial and not exculpatory); U.S. v. Holton, 116 F.3d 1536, 1546 (D.C. Cir. 1997) (defendant not prejudiced by
government’s failure to disclose detective’s handwritten notes because notes consistent with detective’s trial testimony).

1174 See, e.g., U.S. v. Rosario-Peralta, 199 F.3d 552, 560 (1st Cir. 1999) (defendant not prejudiced by failure to produce flight logs and
therefore no need to determine whether logs were Jencks Act material); U.S. v. Wong, 78 F.3d 73, 76 (2d Cir. 1996) (defendant not
prejudiced by government’s failure to produce statements of government witness because witness contracted himself during cross-
examination and there existed other substantial evidence for impeachment); U.S. v. Hill, 976 F.2d 132, 142 (3d Cir. 1992)
(defendant not prejudiced by failure to disclose agent’s grand jury testimony because material was repetitious and cumulative of
evidence available to defendant at trial and evidence would not have assisted defendant in constructing more effective cross-
examination); U.S. v. Moore, 452 F.3d 382, 389-90 (5th Cir. 2006) (defendant not prejudiced by government’s failure to produce
recordings because tape was recycled in good faith prior to investigation and defendant failed to identify useful information); U.S.
v. Taylor, 13 F.3d 986, 990 (6th Cir. 1994) (defendant not prejudiced by government’s failure to turn over seizure-hearing transcript
in violation of Jencks Act because failure to disclose constituted oversight, not bad faith); U.S. v. Lopez, 6 F.3d 1281, 1289 (7th
Cir. 1993) (defendant not prejudiced by court’s failure to inspect potential Jencks Act material because defendant failed to claim
harm from omission and it was extremely unlikely that failure influenced jury or had more than slight effect on trial); U.S. v.
Manfre, 368 F.3d 832, 843 (8th Cir. 2004) (defendant not prejudiced by court’s failure to ensure disclosure of Jencks material
where it was unclear whether all statements had been disclosed, statements were from minor witnesses, and relevant statements
were consistent with trial testimony); U.S. v. Baker, 10 F.3d 1374, 1398 (9th Cir. 1993) (defendant not prejudiced by alleged
discovery violations because court routinely granted defense recesses and continuances to examine newly-disclosed evidence or to
prepare to cross-examine unanticipated witnesses), overruled on other grounds by U.S. v. Nordby, 225 F.3d 1053, 1059 (9th Cir.
2000); U.S. v. Golyansky, 291 F.3d 1245, 1250 (10th Cir. 2002) (defendant not prejudiced by delayed disclosure because additional
costs of preparing to encounter disclosed materials would have been incurred if disclosure had been prompt); U.S. v. Hamaker, 455
F.3d 1316, 1327 (11th Cir. 2006) (defendant not prejudiced by government’s failure to disclose documents related to pretrial
interviews of witnesses because none of the documents containing Jencks statements could affect the outcome of defendant’s trial);
U.S. v. Oruche, 484 F.3d 590, 598 (D.C. Cir. 2007) (defendant not prejudiced by government’s failure to disclose detective’s and
witness’s notes because the notes did not undermine witness’s credibility and prosecution had sufficient evidence to implicate
defendant).
1175 See, e.g., U.S. v. Elusma, 849 F.2d 76, 79 (2d Cir. 1988) (no Jencks Act violation despite destruction of agent’s handwritten notes
because notes were completely incorporated into typewritten report properly disclosed to defendant); U.S. v. Braggs, 23 F.3d 1047,
1051 (6th Cir. 1994) (no Jencks Act violation despite police officer’s failure to preserve notes taken on scrap paper because, even
if preserved, notes consisting of name and location of suspect would not constitute statements); U.S. v. Bastanipour, 697 F.2d 170,
174 (7th Cir. 1982) (no Jencks Act violation despite destruction of DEA agent’s handwritten notes because agent verified accuracy
of typewritten report prepared from notes and report properly disclosed notes to defendant); U.S. v. Leisure, 844 F.2d 1347, 1360-
61 (8th Cir. 1988) (no Jencks Act violation despite destruction of agent’s handwritten notes because no evidence that handwritten
notes differed from typewritten summary properly disclosed to defendant).
1176 See, e.g., U.S. v. Jobson, 102 F.3d 214, 219 (6th Cir. 1996) (no Jencks Act violation despite destruction of dispatch tape because
defendant’s claim that tape would have been exculpatory was speculative and destruction not in bad faith); U.S. v. Bastanipour,
697 F.2d 170, 174 (7th Cir. 1982) (no Jencks Act violation despite destruction of agent’s handwritten notes because agent unaware
of change in agency procedure requiring preservation of notes and because agent later verified accuracy of typewritten report
prepared from notes and properly disclosed to defendant); U.S. v. Leisure, 844 F.2d 1347, 1360-61 (8th Cir. 1988) (no Jencks Act
violation despite destruction of agent’s handwritten notes because defendant presented no evidence of bad faith destruction); U.S.
v. Simtob, 901 F.2d 799, 808-09 (9th Cir. 1990) (no Jencks Act violation despite destruction of agent’s notes because testimony
revealed information was written to refresh memory and court found no bad faith in destroying notes); U.S. v. Shovea, 580 F.2d
1382, 1389-90 (10th Cir. 1978) (no Jencks Act violation despite destruction of agent’s handwritten notes because agent destroyed
notes pursuant to ordinary agency procedure). But see, e.g., U.S. v. Montgomery, 210 F.3d 446, 451 (5th Cir. 2000) (government
violated Jencks Act by failing to produce grand jury testimony notwithstanding that omission caused by court reporter who quit her
job with transcript in her possession and could not be found).

1177 FED. R. CRIM. P. 12.1(a); see, e.g., U.S. v. Ahmad, 101 F.3d 386, 392 & n.3 (5th Cir. 1996) (defendant not required to give
government notice of alibi that defendant was not at scene of crime because notice not specifically requested by government). The
defendant’s duties under Rule 12.1 are discussed under Defendant’s Statutory Disclosure Duties in this section.
1178 See FED. R. CRIM. P. 12.1(b). The government, however, may not be required to disclose the identities of witnesses whose
testimony does not directly rebut the defendant’s alibi. See, e.g., U.S. v. Pace, 833 F.2d 1307, 1314-15 (9th Cir. 1987) (defendant
not entitled to discover identity of witness whose testimony indirectly linked defendant with automobile used to commit crime but
did not establish defendant’s presence at scene of crime). But see, e.g., U.S. v. Llinas, 373 F.3d 26, 36 (1st Cir. 2004) (no Rule
12.1(b) violation where government did not disclose name of accountant witness who interpreted payroll records that rebutted
defendant’s alibi, since government did not know it would need that witness’s testimony until defendant testified).
Additionally, the government is not obligated to furnish the names of rebuttal witnesses if the defendant’s disclosure of alibi
witnesses is not in response to a government request. See, e.g., U.S. v. Portela, 167 F.3d 687, 704 (1st Cir. 1999) (Rule 12.1 not
applicable because court itself set deadline for defense to disclose intent to offer alibi defense); U.S. v. Clark, 988 F.2d 1459, 1466
(6th Cir. 1993) (Rule 12.1 not applicable because government never submitted written demand for notice of alibi and unsolicited
disclosures of alibi witnesses do not obligate government to furnish names of rebuttal witnesses); U.S. v. Braxton, 877 F.2d 556,
560 (7th Cir. 1989) (Rule 12.1 not applicable because government did not make written demand for alibi notice but defendant
nonetheless provided notice in response to magistrate’s grant of time extension to file notice).
Further, Rule 12.1(b) only requires disclosure of rebuttal witnesses, not all rebuttal evidence. See, e.g., U.S. v. Llinas, 373 F.3d 26,
36 (1st Cir. 2004) (no Rule 12.1(b) violation where government did not disclose payroll records rebutting defendant’s alibi that she
was at work at the time of the drug transaction); U.S. v. Jones, 255 F.3d 916, 918 (8th Cir. 2001) (no Rule 12.1(b) violation where
government did not disclose document showing defendant’s alibi witness was in jail during offense).
1179 See FED. R. CRIM. P. 12.1(c); see, e.g., Lewis v. U.S., 771 F.2d 454, 456 (10th Cir. 1985) (government satisfied continuing duty
to disclose because, after learning on opening day of trial that police sergeant could rebut defendant’s alibi, it notified defendant
immediately and did not call sergeant to testify until second day).
1180 See FED. R. CRIM. P. 12.1(e). Before sanctioning the government for failing to disclose an alibi rebuttal witness, the district court
will consider whether the defendant was prejudiced. See, e.g., U.S. v. Quesada-Bonilla, 952 F.2d 597, 603 (1st Cir. 1991) (no abuse
of discretion to permit government rebuttal witness to testify, although not disclosed to defense within 10 days after disclosure of
alibi witness, because defendant knew of witness and any harm was cured by continuance); U.S. v. Causey, 834 F.2d 1277, 1280-
82 (6th Cir. 1987) (no prejudice though government notified defendant of alibi witness’s identity 1 day before presenting witness at
trial because defendant made no objection to testimony and no motion for continuance); U.S. v. Bissonette, 164 F.3d 1143, 1145
(8th Cir. 1999) (no abuse of discretion to allow alibi rebuttal witness to testify because defendant knew substance of witness’s
testimony prior to formal disclosure and defendants failed to ask for continuance).
1181 See FED. R. CRIM. P. 12.1(d); see, e.g., U.S. v. Wills, 88 F.3d 704, 710 (9th Cir. 1996) (good cause to delay disclosure of alibi
witness because witness feared for safety and defendant had history of violence). But see, e.g., U.S. v. Myers, 550 F.2d 1036, 1042
(5th Cir. 1977) (court abused its discretion in finding good cause for government’s failure to disclose witnesses because court failed
to describe the basis of its finding). Rule 12.1(e) does not require a particular type of proceeding to determine whether good cause
exists, but use of ex parte hearings has been upheld. See, e.g., U.S. v. Wills, 88 F.3d 704, 710 (9th Cir. 1996) (ex parte hearing
appropriate because necessary to keep identity of witness from defense).
1182 FED. R. CRIM. P. 12.1(a); see, e.g., U.S. v. Nelson-Rodriguez, 319 F.3d 12, 36-37 (1st Cir. 2003) (no abuse of discretion to
exclude defendant’s alibi witness because defendant did not file alibi notice until 1.5 years after government requested information
with no good cause for delay); U.S. v. Henderson, 241 F.3d 638, 650 (9th Cir. 2000) (no abuse of discretion to exclude defendant’s
alibi witness because defense did not advise government of witness until day 3 of 4-day trial); U.S. v. Pearson, 159 F.3d 480, 484

(10th Cir. 1998) (no abuse of discretion to exclude defendant’s alibi evidence because defendant gave notice nearly 2 months after
government request for notice and only 4 days prior to start of trial without offering good cause for delay).
1183 See FED. R. CRIM. P. 12.1(a)(2).
1184 See FED. R. CRIM. P. 12.1(c).
1185 See FED. R. CRIM. P. 12.1(e). But see, e.g., U.S. v. Sarracino, 340 F.3d 1148, 1170-71 (10th Cir. 2003) (court erred in excluding
defense witness’s testimony despite discovery violation because court did not consider defendant’s reason for delay, prejudice to
government, or remedies other than exclusion). Preventing the defendant from testifying as a penalty for discovery violations has
been held unconstitutional. See Faretta v. Cal., 422 U.S. 806, 819 n.15 (1975) (defendant’s right to testify not explicit in
Constitution but essential to due process); see also Brooks v. Tenn., 406 U.S. 605, 612 (1972) (defendant’s right to offer testimony
protected by Constitution).
1186 See FED. R. CRIM. P. 12.1(d). But see, e.g., U.S. v. White, 583 F.2d 899, 902 (6th Cir. 1978) (defendant failed to show good cause
for not informing government of the name of alibi witness despite not knowing the location of the witness, since witness’s name
must still be disclosed and government could have helped in finding the witness); U.S. v. Barron, 575 F.2d 752, 756-58 (9th Cir.
1978) (defendant failed to show good cause for disclosing intention to use alibi 1 day late, since defendant had refused to speak
with his court-appointed lawyer and government’s case was already very strong); U.S. v. Pearson, 159 F.3d 480, 484 (10th Cir.
1998) (defendant failed to show good cause for not informing government of an alibi witness where witness was defendant’s
mother and defendant should have known alibi existed well in advance of deadline to submit an alibi defense).
1187 See Williams v. Fla., 399 U.S. 78, 82-83 (1970). The Williams Court reasoned that the defendant was not compelled to offer an
alibi defense, the notice-of-alibi rule affected only the timing, not the substance, of the defendant’s trial strategy, and nothing in the
Fifth Amendment entitled the defendant to wait until the end of the government’s case to announce the nature of his or her defense.
Id.
1188 See Wardius v. Or., 412 U.S. 470, 472 (1973) (Oregon notice-of-alibi rule, which did not allow defendant reciprocal discovery of
government’s alibi rebuttal witnesses, violated due process). But see, e.g., Fox v. Mann, 71 F.3d 66, 71 (2d Cir. 1995) (state’s
nondisclosure was acceptable because rebuttal witnesses’ testimony did not become relevant until defendant’s alibi witnesses
provided testimony materially different from prior statements).
1189 FED. R. CRIM. P. 12.2(a)-(b); see also Dixon v. U.S., 126 S. Ct. 2437, 2445 (2006) (discussing the notification requirement of
Rule 12.2); see, e.g., U.S. v. Shay, 57 F.3d 126, 136-37 (1st Cir. 1995) (no error to refuse to allow defendant’s expert to testify
about defendant’s diminished capacity because defendant withdrew notice of insanity defense prior to trial); V.I. v. Charleswell,
115 F.3d 171, 176 (3d Cir. 1997) (no error to refuse to allow defendant’s expert to testify about defendant’s mental condition
because defendant waited until trial to give notice of potential insanity defense); U.S. v. King, 75 F.3d 1217, 1225 (7th Cir. 1996)
(no error to refuse to give jury instruction on insanity defense when defendant did not give notice of intent to rely on insanity
defense before trial, though defendant had notified government of intent to use expert testimony indicating depression); U.S. v.
Beers, 91 F.3d 1201, 1203 (8th Cir. 1996) (no error to refuse to allow insanity defense because defendant missed deadline to file
notice of intent though defendant claimed she did not realize her own insanity until after deadline); U.S. v. Nichols, 169 F.3d 1255,
1269 (10th Cir. 1999) (no error to refuse to allow defense expert to testify about defendant’s mental condition because expert’s
name was omitted from defense’s pretrial witness list); U.S. v. Word, 129 F.3d 1209, 1212 (11th Cir. 1997) (no error to refuse to
allow defense to present expert testimony that defendant suffered from Battered Woman Syndrome because defendant failed to
give timely notice of intent to present such testimony). But see, e.g., U.S. v. Fazzini, 871 F.2d 635, 640 (7th Cir. 1989) (error to

exclude as “vague” expert testimony of mental condition when defendant informed government of intention to defend on basis of
unconsciousness caused by chronic alcoholism because Rule 12.2(a) does not require disclosure of specific condition; however,
evidence properly excluded because irrelevant to defense); U.S. v. Finley, 301 F.3d 1000, 1017-18 (9th Cir. 2002) (error to exclude
expert testimony of mental condition because defendant’s disclosure supplied government with notice of general nature of expert’s
testimony).
1190 FED. R. CRIM. P. 16(b)(1)(A); see, e.g., U.S. v. Moore, 208 F.3d 577, 579 (7th Cir. 2000) (defendant not obligated to disclose note
that he did not intend to use in case-in-chief at trial but merely to impeach government witness); U.S. v. Medearis, 380 F.3d 1049,
1057 (8th Cir. 2004) (same). Discoverable documents and objects include “books, papers, documents, data, photographs, tangible
objects, [and] buildings or places.” FED. R. CRIM. P. 16(b)(1)(A). Either side may discover identical types of documents or
objects from the other. See FED. R. CRIM. P. 16(a)(1)(E), (b)(1)(A).
1191 See FED. R. CRIM. P. 16(b)(1)(B); see, e.g., U.S. v. Peters, 937 F.2d 1422, 1426 (9th Cir. 1991) (conclusions reached by medical
expert when examining victim were not recorded in tangible form and therefore were not required to be disclosed to government);
U.S. v. Dennison, 937 F.2d 559, 566 (10th Cir. 1991) (verbatim notes taken by doctor while interviewing defendant were not
medical reports or results and therefore were not required to be disclosed to government).
1192 See FED. R. CRIM. P. 16(b)(1)(C); see, e.g., U.S. v. Rettenberger, 344 F.3d 702, 706 (7th Cir. 2003) (no error to refuse to allow
expert witness’s testimony on subject not revealed to prosecution in pretrial disclosure).
1193 See FED. R. CRIM. P. 16(b)(2)(A). But see, e.g., U.S. v. Nobles, 422 U.S. 225, 239-40 (1975) (by electing to present investigator
to rebut testimony of prosecution witness, defendant waived work-product privilege with regard to matters covered in
investigator’s testimony).
1194 See FED. R. CRIM. P. 16(b)(2)(B).
1195 See FED. R. CRIM. P. 16(b)(1)(A)-(C).
1196 See FED. R. CRIM. P. 16(c).
1197 See FED. R. CRIM. P. 16(d)(1).
1198 FED. R. CRIM. P. 26.2(a). Although the Jencks Act, 18 U.S.C. § 3500, grants only the defendant the power to discover opposing
witness’s pretrial statements, Rule 26.2 grants this power to both the defendant and the government. See FED. R. CRIM. P. 26.2
advisory committee’s note.
1199 See FED. R. CRIM. P. 26.2(a).
1200 See FED. R. CRIM. P. 16(d)(2); see, e.g., U.S. v. Iskander, 407 F.3d 232, 239 (4th Cir. 2005) (no abuse of discretion when court
excluded defendant’s expert testimony because defendant failed to timely disclose his intent to use the expert); U.S. v. Hamilton,
128 F.3d 996, 1003-05 (6th Cir. 1997) (no abuse of discretion when court excluded defendant’s receipts because disclosure of the
receipts happened 2 years after request for discovery and after the government had rested its case-in-chief); U.S. v. Scholl, 166 F.3d
964, 972 (9th Cir. 1999) (no abuse of discretion when court excluded copies of cashier’s checks because defendant deliberately

failed to disclose them); U.S. v. Nichols, 169 F.3d 1255, 1268-69 (10th Cir. 1999) (no abuse of discretion when court excluded
defendant’s expert testimony because defendant seemed to have acted in bad faith and the court had legitimate scheduling
concerns). But see, e.g., U.S. v. Finley, 301 F.3d 1000, 1018-19 (9th Cir. 2002) (abuse of discretion when court excluded
defendant’s expert testimony because discovery violation was not willful); U.S. v. Sarracino, 340 F.3d 1148, 1170-71 (10th Cir.
2003) (abuse of discretion when court excluded defendant’s expert testimony without analyzing defendant’s intent and prejudice to
government; however, error was harmless).
1201 484 U.S. 400, 406 (1988). In Taylor, the defendant’s attorney moved during trial to amend his discovery answer to include two
more witnesses whom he claimed had just been located and had “probably seen the ‘entire incident.”’ Id. at 403. Pursuant to
Illinois Supreme Court Rule 413(d), the defendant was required to notify the prosecution of the names, addresses, and statements of
all defense witnesses. Id. at 403 n.2. After a hearing, at which only one of the two new witnesses appeared, the court found that the
defendant’s attorney had lied about the unavailability of the witness and that the witness had lied about what transpired on the night
of the incident. Id. at 404-05. The trial court excluded the witness’s testimony. Id. at 405.
1202 Taylor, 484 U.S. at 410-16. The Court also rejected defendant’s argument that he should not be held responsible for his attorney’s
misconduct, stating “[w]henever a lawyer makes use of the sword provided by the Compulsory Process Clause, there is some risk
that he may wound his own client.” Id. at 418. The First Circuit has noted that the defendant’s attempt in Taylor to present false
testimony was not critical to the decision, and the determination of truth was thwarted just as easily by presenting a “surprise”
witness as by presenting perjured testimony, particularly when the witness’s testimony was of a highly technical nature. See
Chappee v. Vose, 843 F.2d 25, 31-32 (1st Cir. 1988).
1203 Taylor, 484 U.S. at 417. Although declining to “draft a comprehensive set of standards,” the Court enumerated several factors that
the trial judge should weigh against the defendant’s right to compulsory process: (1) “the integrity of the adversary process”; (2)
“the interest in the fair and efficient administration of justice”; (3) “the potential prejudice to the truth-determining function of the
trial process”; (4) the reason for failure to comply with discovery requests, including whether the violation was “willful and
motivated by a desire to obtain a tactical advantage”; and (5) the relative “simplicity of compliance with the discovery rule.” Id. at
414-15.
Circuit courts have differed over whether a willful violation of a discovery request is necessary for exclusion. Compare U.S. v.
Johnson, 970 F.2d 907, 911 (D.C. Cir. 1992) (“[A]ny requirement of bad faith as an absolute condition to exclusion would be
inconsistent with the Taylor Court’s reference to trial court discretion and its extended discussion of the relevant factors.”), with
U.S. v. Peters, 937 F.2d 1422, 1426 (9th Cir. 1991) (exclusion of witness as a remedy for discovery violations should only be used
when violations are “willful and blatant”).
Nonetheless, the courts have used the broad Taylor framework to determine the appropriateness of exclusion as a sanction. See,
e.g., U.S. v. Weiss, 914 F.2d 1514, 1525 (2d Cir. 1990) (exclusion of document justified because defendant did not disclose
document to government); U.S. v. Barile, 286 F.3d 749, 758-59 (4th Cir. 2002) (exclusion of defense witness’s testimony
concerning witness’s opinions justified because proper summary of witness’s opinions not disclosed by defense); U.S. v. Hamilton,
128 F.3d 996, 1004 (6th Cir. 1997) (exclusion of documents justified because defendant attempted to obtain tactical advantage by
failing to disclose documents for 2 years and then “spr[ung] them on the prosecution” near conclusion of government’s case-in-
chief with excuse that documents had been misplaced); U.S. v. Mason, 902 F.2d 1314, 1315 (8th Cir. 1990) (exclusion of wife as
defense witness justified because defense omitted wife from list in order to obtain tactical advantage); U.S. v. Nash, 115 F.3d 1431,
1439 (9th Cir. 1997) (exclusion of expert testimony justified because failure to disclose was willful because defendant avoided
continuing obligation to disclose); U.S. v. Petrie, 302 F.3d 1280, 1288-89 (11th Cir. 2002) (exclusion of expert testimony justified
because defendant, who had been indicted 1.5 years earlier, waited until 3 days before trial to disclose expert to government). But
see, e.g., U.S. v. Levy-Cordero, 67 F.3d 1002, 1013-15 (1st Cir. 1995) (imposition of sanction not justified because time frame
provided by government before trial was changed at trial by testimony of government witness, government did not issue request for
notice-of-alibi defense under Rule 12.1(a), court’s discovery order was confusing, and court erroneously found defense counsel’s
delay in establishing alibi defense intentional); U.S. v. Bahamonde, 445 F.3d 1225, 1228, 1231-32 (9th Cir. 2006) (exclusion of

defense witness’s testimony for untimely notice not justified because court failed to weigh countervailing interests).
End of Document © 2012 Thomson Reuters. No claim to original U.S. Government Works.

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DISCOVERY AND ACCESS TO EVIDENCE, 37 Geo. L.J. Ann. Rev. Crim. Proc.

37 Geo. L.J. Ann. Rev. Crim. Proc. 334

Georgetown Law Journal Annual Review of Criminal Procedure

Annual Review of Criminal Procedure

Copyright © 2008 by Georgetown University and The Georgetown Law Journal

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 1

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 2

obtained from the defendant.1131

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 3

the agent’s motivation *365 for destroying the notes.1176

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 4

Wardius v. Or., 412 U.S. 470, 474 (1973)).

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 5

location of drugs in car).

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 6

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 7

1077 See U.S. v. Ruiz, 536 U.S. 622, 629-33 (2002).

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 8

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 9

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prosecution team was unaware of order).

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 11

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 12

1092 Roviaro v. U.S., 353 U.S. 53, 59 (1957).

1093 See id. at 60.

1094 See id. at 62.

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 13

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 14

1101 Id. at 311.

1106 FED. R. CRIM. P. 12.1 (a)-(e), 16(a)(1)-(3), 26.2(a)-(g).

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 15

1109 See FED. R. CRIM. P. 16(a)(1)(A)-(C).

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 16

1113 See FED. R. CRIM. P. 16(a)(1)(B).

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 17

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 18

1121 See FED. R. CRIM. P. 16(a)(1)(C).

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 19

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 20

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 21

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1137 See FED. R. CRIM. P. 16(a)(1)(G).

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© 2012 Thomson Reuters. No claim to original U.S. Government Works. 24

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 25

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 26

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 27

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 28

before, and parties agreed to original discovery schedule).

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 29

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 30

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 31

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 32

witness’s statements and no evidence of approval by witness).

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 33

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 34

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 35

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 36

1183 See FED. R. CRIM. P. 12.1(a)(2).

1184 See FED. R. CRIM. P. 12.1(c).

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 37

1194 See FED. R. CRIM. P. 16(b)(2)(B).

1195 See FED. R. CRIM. P. 16(b)(1)(A)-(C).