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In complex federal white-collar criminal cases, witness-interview memoranda prepared by the government can be invaluable to the defense. They assist counsel in deciphering how the government will prove its case and in identifying weaknesses that can be exploited. They also provide information that is critical for identifying, preparing and locking in witnesses who support the defense’s case. Interview memoranda are of course important tools to have at trial. A prior statement can be used to refresh a witness’s recollection, a prior inconsistent statement to impeach a witness’s credibility, and a prior consistent statement to rehabilitate a witness’s credibility. Because depositions are available in federal criminal cases only in exceptional circumstances and only in order to preserve testimony for use at trial, the government’s memos are a critical source for prior statements. The interview memoranda can also have substantial value to defense counsel wholly apart from their utility at trial. They can be critical tools to have during the investigation and trial-preparation stages of a case, too. Interview memoranda may provide information access They can provide leads to other evidence. More importantly, they can also provide counsel with access to information, conversations and recollections of critical events that are otherwise unavailable to the defense � either in their entirety, or at a level of detail and specificity that materially advances the defense’s case. Witnesses forget numerous details with the passage of time. The government’s interview memos are almost always necessary to help recapture lost or faded memories of important events in complex cases because of the lengthy period between the occurrence of relevant events and interviews of witnesses by the government, and the subsequent return of an indictment and preparation of a defense by counsel. Witnesses are also often inaccessible. They may have been told by the government they were subjects of the grand jury investigation and as a result are reluctant to cooperate with the defense. Or they may simply want to remain uninvolved. Disclosure of the government’s interview memos for these witnesses may be the only means by which the defense can discover their helpful statements and determine whether they should be subpoenaed to testify at trial. Disclosure of interview memoranda also increases the defense’s leverage over reluctant witnesses. Testifying at trial “cold” creates risks not only for the defense, but also for witnesses. They are more likely to meet with defense counsel in advance of trial to prepare their testimony if they believe they will be called regardless of their level of cooperation. Once the defense has the government’s memos in hand, it is better equipped to call witnesses, even if they refuse to cooperate. Disclosure thus makes reluctant witnesses more accessible to the defense. The government’s memos are not easy to come by, however, at least not sufficiently in advance of trial in order to make full use of them. The government is required, pursuant to the “Jencks Act” (18 U.S.C. 3500), to disclose prior statements of its trial witnesses relating to their testimony. Although some courts, in order to expedite discovery and trials, encourage early disclosure of these statements, a court may not compel their production until after the conclusion of a witness’s direct testimony. The government is also obligated, pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, to produce direct as well as impeachment information that is materially favorable to the accused. This information must be disclosed in a manner that gives the defendant a reasonable opportunity either to use the evidence in the trial or to obtain evidence for use in the trial. Unlike the Jencks Act, the Brady obligation applies to all witness statements, not just to those of government witnesses. The rub with Brady disclosures is that the government, in responding to requests for Brady material, will often disclose only the name and address of a witness who may have such information without also disclosing the information itself. Because of faded memories or a reluctance to cooperate, these witnesses’ exculpatory information will often be unavailable to the defense for all practical purposes. Notwithstanding these obstacles, defense counsel should seek to obtain the government’s interview memoranda, given their importance. In addition to submitting detailed requests for Brady material in order to educate the government about potential exculpatory evidence that must be disclosed, counsel should aggressively pursue pretrial motions. Developments in the law and policies concerning the government’s disclosure obligations provide defense counsel with new weapons. An amendment in 2002 to Rule 16 of the Federal Rules of Criminal Procedure � which imposes disclosure obligations on the government � provides defense counsel with a persuasive but overlooked argument for early disclosure of government interview memos for nonprospective government witnesses. Significantly, these are memos that would otherwise not be disclosed as Jencks material because that statute applies only to statements of actual government witnesses. Rule 16(a)(1) identifies various categories of information subject to early disclosure by the government, including documents that are “material to preparing the defense.” While Rule 16(a)(2) exempts from discovery “reports, memoranda, or other internal government documents made . . . in connection with investigating or prosecuting the case,” there is an important carve out � “[e]xcept as Rule 16(a)(1) provides otherwise” (emphasis added). Thus, despite the general exemption in Rule 16(a)(2), that provision provides that the government’s interview memos are plainly subject to disclosure if they fall into any category in Rule 16(a)(1), which includes information that is “material to preparing the defense.” Cf. U.S. v. Vallee, 380 F. Supp. 2d 11, 14-15 (D. Mass. 2005). Where interview memos for nonprospective government witnesses reflect statements that corroborate defenses or contradict the government’s factual theories, the government will be hard pressed to argue credibly that these statements are not material to preparing the defense. See, e.g., U.S. v. Stevens, 985 F.2d 1175, 1180 (2d Cir. 1993). There are also changes on the Brady front that defense counsel can use to their clients’ advantage. In October 2006, the U.S. Department of Justice promulgated a new “Policy Regarding Disclosure of Exculpatory and Impeachment Information,” which is included in the United States Attorneys’ Manual. See � 9-5.001. The policy does not address whether the government is required to disclose more that the names and contact information of witnesses who may have exculpatory information. It does emphasize the government’s obligation to disclose exculpatory and impeachment evidence in time to permit the defendant to make effective use of that information at trial. According to the policy, exculpatory information “must be disclosed reasonably promptly after it is discovered” and impeachment information will “typically be disclosed at a reasonable time before trial,” absent significant national security or witness security interests. Although the manual provides only internal guidance, and may not be judicially enforceable, the policy provides defense counsel with additional leverage to press for earlier Brady disclosures. 2d Circuit ruling gives defense counsel a weapon A recent opinion issued by the 2d U.S. Circuit Court of Appeals, U.S. v. Rodriguez, 496 F.3d 221 (2d Cir. 2007), also provides defense counsel with grounds for attacking the adequacy and timing of the government’s Brady disclosures. In Rodriguez, the defendant was convicted in a multidefendant trial in which the government’s case rested primarily on the testimony of two cooperating witnesses. During the direct examination of one of the witnesses, the government elicited that she had lied “about everything” during her initial interviews with the government. In responding to defense requests for the prior statements, the government indicated that no notes had been taken during the interviews and refused to disclose the substance of the statements. The 2d Circuit remanded the case for a hearing on the materiality of the undisclosed information. But it also offered guidance to the trial court in making that determination � and sent a clear message to the government that its practice of advising the defense to contact witnesses directly in order to obtain Brady material will not routinely pass muster. Those considerations provide defense counsel with a powerful argument for obtaining disclosure of government interview memoranda containing Brady material, instead of being forced to rely on the faded memories of witnesses. The 2d Circuit stated that “at least in some circumstances, telling the defendant that a witness lied, but leaving it for defense counsel to find out what the lies were by questioning the witness before the jury, might as a practical matter foreclose effective use of the impeaching or exculpatory information.” Id. at 227. Armed with these developments and detailed Brady requests, defense counsel should pursue disclosure of government interview memoranda, given their importance in complex cases. Dan K. Webb and J. David Reich are partners at Winston & Strawn who concentrate on civil, regulatory and white-collar criminal cases. Webb, the firm’s chairman, previously served as the U.S. attorney for the Northern District of Illinois. Reich, based in New York, previously served as an assistant U.S. attorney for the District of New Jersey.

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