On Monday, January 4, 2010, Deputy Attorney General David Ogden issued three memoranda summarizing the actions taken by the US Department of Justice (DOJ) to identify and improve the agency’s resources, training and policy guidance regarding criminal discovery. The new guidance is the result of a Working Group of senior level prosecutors, information technology personnel and law enforcement representatives, who conducted a review of existing practices related to the sharing of information with criminal defense lawyers. Attorney General Eric Holder announced the creation of the Working Group last April, partly in response to the high-profile loss and ensuing rebuke of the prosecution team assigned to the case against Alaska Senator Ted Stevens.

In a summary memorandum, Ogden stated that the Working Group’s survey showed that “incidents of discovery failures are rare in comparison to the number of cases prosecuted,” but he also noted that “even isolated lapses can have a disproportionate effect on public and judicial confidence in prosecutors and the criminal justice system.” Ogden reminded prosecutors that their duty is “to seek justice.” He explained, “In many cases, broad and early disclosures might lead to a speedy resolution and preserve limited resources for the pursuit of additional cases. In other cases, disclosures beyond those required by relevant statutes, rules and policies may risk harm to victims or witnesses, obstruction of justice, or other ramifications contrary to our mission of justice.”

In addition to the overall guidance to prosecutors (summarized below), Ogden announced several other reform efforts. DOJ will:

  • direct every office to develop a formal discovery policy by the end of March 2010;
  • create an online directory of discovery resources available to all prosecutors;
  • produce a discovery handbook for prosecutors’ reference;
  • implement mandatory training for paralegals and law enforcement personnel; and
  • potentially adopt new practices relating to case management and the cataloguing of electronically stored information.

Formalization of Office Policies on Criminal Discovery

In a memorandum to all United States Attorneys and heads of criminal litigating components, Ogden directed each office to establish a uniform discovery policy to be followed by all prosecutors handling criminal cases in their office. He noted that “some local variation in discovery practices is inevitable,” but explained that inconsistent discovery practices within the same office “can lead to burdensome litigation over the appropriate scope and timing of disclosures, judicial frustration and confusion, and disparate discovery disclosures to a defendant based solely on the identity of the prosecutor who happens to have been assigned a case.” Ogden stressed that the policies must reflect controlling precedent, local rules and office practice, but allowed for procedures where prosecutors may depart from the uniform discovery policy in appropriate cases after obtaining supervisory approval.

New Guidance for Prosecutors on Criminal Discovery

In a memorandum issued to all DOJ prosecutors, Ogden issued guidance “intended to establish a methodical approach to consideration of discovery obligations that prosecutors should follow in every case to avoid lapses that can result in consequences adverse to the Department’s pursuit of justice.” Ogden explained that the discovery obligations of federal prosecutors are governed by Supreme Court precedent, the Federal Rules and federal statute, but he also indicated that USAM §9-5.001 provides for disclosure of exculpatory and impeachment information that in some cases is broader than that required by those authorities. Ogden stated that all prosecutors should be familiar with their obligations and he outlined the steps that they should take to comply with them “to achieve a just result in every case.” When making disclosures to defense counsel, Ogden encourages prosecutors to “provide discovery broader and more comprehensive” than their obligations. Regarding timing, Ogden declares that “[p]roviding broad and early discovery often promotes the truth-seeking mission” of DOJ, but he also notes that there may be “countervailing concerns” in particular cases.

Potential Concerns with the New Guidance

Despite the promise of the guidance described above, there are several areas where the memoranda might be lacking. For example, the memorandum to prosecutors states that the guidance “is not intended to have the force of law or to create or confer any rights, privileges, or benefits.” This is not abnormal language for DOJ policy guidance. Nonetheless, there are many, including prominent federal judges, who believe that a stronger mandate—perhaps in the form of a change to the Federal Rules of Criminal Procedure—is necessary. Critics of the DOJ guidance say that a neutral party, such as the federal judiciary, should determine whether prosecutors should be able to withhold evidence from the defense. The current policy allows prosecutors to continue to make their own determinations of materiality. Finally, the new guidance allows for broad discretion in delaying disclosure of discoverable material, and the extensive review process contemplated by the memorandum may be used to further postpone sharing information with the defense. The memoranda issued by Ogden are a welcome reform effort after a troubling series of discovery missteps by federal prosecutors, but only time will tell if defense counsel will see real improvement in practice.

For information about Mayer Brown's White Collar Defense & Compliance practice, please visit mayerbrown.com. 

Learn more about our White Collar Defense & Compliance practice.