Consider this: In all the episodes of Perry Mason that you ever watched, Perry—the iconic cross-examiner—never, ever once gained one of his famous “You got me, I did it” case-ending admissions, by cross-examining from a prior witness statement given to him by (that constantly losing-prosecutor) Hamilton Burger. In fact, Perry seemed to never cross-examine at all from prior witness statements.

Why? Was it because the witness statements in Burger’s cases never revealed anything worthy of cross-examination? Not likely. Was it because all of those episodes were taped before the Congress adopted Title 18 U.S. Code, Section 3500 directing prosecutors to turn over so-called “3500 material.”1 Or before state courts, such as New York, adopted rules such as “Rosario,” requiring prosecutors to turn over so-called “Rosario material,” including prior statements of prosecution witnesses?2 Maybe.

Or, more pertinent to what follows here, was it simply because Burger directed the hapless Lieutenant Tragg to keep in his head everything (including exculpatory —so-called Brady3 or Giglio—material) he learned from potentially vulnerable witnesses and not commit it to writing, lest Perry pull it out of his hat in one of his moments which would result in another defeat for Burger and the People of California?

No question, most prosecutors are fair-minded and want to be sure that they convict only defendants whom they believe are truly guilty. That said, many prosecutors believe—and rightly so—that able defense lawyers can capably use prior witness statements to so undermine a prosecution case, that truly guilty people will end up acquitted.

Witness Accounts Change

The fact is that truth-telling witnesses will indeed remember probative events differently on different occasions. For example, one’s recollection the second time around, say May 25, particularly after being refreshed by memory-enhancing memoranda, may be far more accurate than the first time around, on Jan. 2. Even the most honest prosecutor would hardly want to see a memorandum or notes of the Jan. 2 interview in the hands of an able defense lawyer who could, dramatically, use the memorandum or notes to skillfully poke holes in the witness’ account thusly: “But didn’t you say on January 2nd that three other people were present during the incident, whereas on May 25th you told the FBI (as you now do at trial), that it was just you and my client, the defendant, present? So, were you lying on January 2nd, or are you lying now?” Or, alternatively, “Is your recollection of the event better now than it was 12 months ago?”

Small wonder that the answering message on the voicemails of many prosecutors direct callers to not leave any substantive information in their message. Prosecutors would probably argue that their purpose is to ease the problems of discovery production which would require them to search the voicemail histories of all relevant prosecutors who might have received calls from witnesses on a case (even if they have since left the office for another job). Truth told, some also don’t want to be burdened with prior inconsistent witness statements that may have to be produced to the defense.

Although there may not be much case law addressing it, it is one thing to direct lay or law enforcement telephone callers to not leave substantive messages on the prosecutor’s voicemail, and quite another to direct police or other law enforcement agents present when they conduct prosecution interviews to simply put their pencils down during such interviews. After all, the prosecutor’s obligations spawned by Brady or Giglio “requires” the prosecutor to turn over exculpatory or impeaching material, irrespective of whether it is reduced to writing.

If, for example, a witness in his prior statement said that the perpetrator had blond hair, whereas his trial prep account was that the “perp” had brown hair, the (likely) exculpatory nature of the inconsistency exists whether or not the blond hair account was reduced to writing by the prosecutor (or an attending law enforcement witness), or not. Meaning, the prosecutor would at least theoretically be obliged to turn over the existence of the statement either way. Still, one can easily understand why the prosecutor—full disclosure, myself included in my day—might prefer not to have to transmit a contemporaneous-to-the-inconsistency piece of paper directly into the hands of a skillful defense lawyer who could dramatically, even if with some degree of subtlety, suggest to the jury that he holds in his hand a document showing a serious inconsistency with the witness’ current testimony.

Federal Case Law

But what law exists on this issue, given that no federal case law affirmatively obligates prosecutors or their witnesses to take notes?4 Interestingly, both the First and Second circuits have considered the problem with neither directly ruling on it, even though they both recognize the potential abuse implicated. In United States v. Houlihan,5 a drug racketeering case decided by the U.S. Court of Appeals for the First Circuit in 1996, the government agents who led the investigation instructed all but the most senior prosecutors to refrain from taking notes during pretrial interviews (although it would be the prosecutor giving the instruction). In affirming the district court’s determination that the Jencks Act (Title 18, U.S. Code, Section 3500), did not impose an obligation on government agents to take notes during witness interviews, the circuit went on to say that it did not mean to imply that it endorsed the practice of not taking notes:

Eschewing tape recordings and ordering law enforcement agents not to take notes during pretrial interviews is risky business and not guaranteed to redound either to the sovereign’s credit or to its benefit. By adopting a “what we don’t create can’t come back to haunt us” approach, prosecutors demean their primary mission: to see that justice is done. In more parochial terms, the government also loses the advantage of records that it may subsequently need to safeguard against witnesses changing their stories or to refresh recollections dimmed by the passage of time. By and large, the legitimate interests of law enforcement will be better served by using recording equipment and/or taking accurate notes than by playing hide-and-seek.6

The U.S. Court of Appeals for the Second Circuit, in its 2007 decision in United States v. Rodriguez,7 took a slightly different view, although it, too, declined to find a Brady, Giglio, Jencks Act or Sixth Amendment Confrontation Clause violation when the government deliberately refrained from note taking calculated to evade an obligation to turn over exculpatory or impeaching information to the defense. Rodriguez had actually equated the government’s behavior with the “destruction of evidence.”8

In following the First Circuit’s ruling in Houlihan, and noting that Brady and Giglio9 obligate prosecutors in certain circumstances to disclose exculpatory and impeaching information, the Second Circuit noted that those cases “have not been generally construed to require the Government to make written notes to the defendant’s benefit.”10 The footnote to that comment, however, did leave the door slightly open in certain circumstances not present in Rodriguez:

We need not and do not consider whether, in some cases, the preservation of exculpatory or impeaching information in a concrete form—as by note taking—may be necessary to ensure that the information can be relayed accurately to the defense. In this case, there is no reason to doubt the ability of the AUSA to inform the defense of any of the witnesses’ prior statements that were materially exculpatory or impeaching…We do not reach here the issue of whether the Government, for the purpose of avoiding the disclosure of the initial falsities and inconsistencies of persons who may become Government trial witnesses, may permissibly instruct an agent not to follow the customary practice of taking notes of witness interviews.11

The court noted that that question was not before the court precisely because, although the district court had offered defense counsel the opportunity to examine that issue with the jury absent, defense counsel did not take the court up on its offer. Obviously, the lesson of Rodriguez is simple. If counsel, for example, is given no FBI 302 reports for critical interviews at which FBI agents apparently were present—given the FBI manual’s unequivocal requirement that whenever an individual interviewed could be called upon to testify, “the results of the interview shall be reported on FD-302″12—counsel shouldn’t drop the ball. Perhaps counsel in Rodriguez did, not asking the trial court for the opportunity to see whether the omissions of note-taking were accidental or deliberate. So, even though the Second Circuit hasn’t yet reached the question whether telling agents to ignore their agency’s policy and not take notes constitutes a violation, there may be a window of opportunity to claim government misconduct in not being provided with potentially exculpatory information.

Prosecutors should also beware of possible criticism if a case goes awry. Following the prosecution of U.S. Senator Ted Stevens in the District of Columbia,13 trial Judge Emmet G. Sullivan commissioned the Schuelke Report,14 which strongly criticized the practice of no note taking at prosecution witness interviews.

New York Case Law

Federal case law obviously does not side with the defense on this issue. Although, the door is at least somewhat ajar under the Rodriguez footnote, supra,15 if a defendant can make a case of a deliberate effort to maintain secrecy over potentially exculpatory material. New York state case law, however, is even less helpful. Local district attorneys don’t typically have practice manuals that address such issues. Meaning, no New York state prosecutor handbook that we are aware of says, in effect, “Don’t Bar Note Taking During Prosecution Witness Interviews.” (We are mindful that in the state system, unlike the federal system, prosecutors frequently must interview witnesses alone without a police officer or detective present. In such instances, the disconcerting nature of note-taking during the interview may undermine the relationship that the prosecutor seeks to gain with the witness. Accordingly, there, as perhaps in a trial prep session with a witness on the verge of testifying, a no-note-taking protocol may be appropriate, as long as a memo of some kind is made soon after the interview, particularly if a significant event occurred at the interview).

Notably, the ethics handbook authored by the District Attorneys Association of the State of New York (DASNY), “The Right Thing,”16 which contains a valuable set of guidelines to underscore a prosecutor’s legal and ethical duties to disclose exculpatory and impeaching material,17 doesn’t, as in the case of a number of other nitty gritty issues, address the importance of note taking, as described in the FBI manual and the language of Houlihan above. That omission probably warrants rethinking the next go round.

Defense counsel, of course, might seek to rely on New York case law, as might a federal defender on federal case law articulated above. At best, though, all there is to rely on is that state case law addresses the destruction or failure to preserve Brady or Rosario material.18 Clearly, like a federal duty19 there is a New York duty “to preserve evidence until a request for disclosure is made.”20 Still, while an argument relying on such case law might be superficially appealing, it probably won’t go far enough.

A Sensible Solution

It makes sense for prosecutors to minimize the receipt of unguided information—not resulting from official interviews of witnesses—that will likely need to be turned over to the defense, such as voicemails from potential witnesses. Hardly the same thing, however, as prosecutors instructing enforcement personnel: “Don’t Take Notes.” Truthful witnesses often do make inconsistent statements to prosecutors or law enforcers at different times, and prosecutions shouldn’t fail simply because of that.

However, if a prior inconsistent or Brady statement is so consequential, a scrupulous prosecutor would tell the defense about it (whether committed to writing or not)—but only if he knows about it. Still, if the interview occurred under the supervision of his colleague who has left the bureau or even left the office, he probably never knew of it.

How does a fair-minded prosecution office ensure that this scenario doesn’t transpire? Simple: Witnesses shouldn’t be interviewed without notes taken or somehow a memorandum later created to address an important inconsistency or inconsistencies in the witness’ account. The only way a chief prosecutor can ensure that his or her assistants indeed do “The Right Thing,” is to insist that they memorialize in some way what should be turned over.

Notably, the Department of Justice Manual does say that memorializing witness interviews is generally not required.21 Indeed, it says that when a prosecutor and investigative agent participate in an interview they should “discuss note-taking responsibility and memorialization before the interview begins.”22 There’s a big gap there—and it may be high time that the gap is filled. Perhaps, the Justice Department Manual should be modified to reflect that the prosecutor and investigative agent should “discuss who will take note taking responsibility and who will do the memorializing.”

Since the case law is not particularly helpful—Houlihan and Rodriguez, notwithstanding—maybe the defense bar needs to be proactive. Perhaps omnibus motions should routinely ask whether the prosecutor(s) instructed investigating agents or police to refrain from taking notes at witnesses’ interviews. Or motions should be made demanding that—if no notes were taken—a hearing be granted where enforcement agents or police, or prosecutors themselves, would be required to testify concerning what instructions were given. Yes, it is unlikely that the rules of the road will change in the short run. Still, such a practice by the defense bar may help sensitize the courts to what a prosecutor’s practice of “no note-taking,” in instances when it has a negative connotation, may actually mean—and maybe it will discourage prosecutors from such practices going forward. That would be a good thing!

Joel Cohen, a former federal and state prosecutor, is of counsel at Stroock & Stroock & Lavan, and teaches Professional Responsibility at Fordham Law School.

Endnotes:

1. 18 U.S.C. §3500 (2000).

2. People v. Rosario, 9 N.Y. 2d 286 (1961); See People v. Moise, 2013 N.Y. Slip Op. 05550, 970 N.Y.S.2d 220 (1st Dept. 2013); People v. Novak, 2013 WL 3185165 (N.Y. Co. Ct. 2013).

3. Brady v. Maryland, 373 U.S. 83 (1963).

4. United States v. Houlihan, 92 F. 3d 1271 (1st Cir. 2007); See United States v. Lieberman, 608 F.2d 889, 897 (1st Cir. 1979) (rejecting a claim that the government has “a duty to create Jencks Act material by recording everything a potential witness says”), cert. denied, 444 U.S. 1019, 100 S.Ct. 673, 62 L.Ed.2d 649 (1980); accord United States v. Bernard, 625 F.2d 854, 859 (9th Cir. 1980); *1289 United States v. Head, 586 F.2d 508, 511-12 (5th Cir. 1978); United States v. Feilbogen, 494 F.Supp. 806, 814 (S.D.N.Y 1980), aff’d 657 F.2d 265 (2d Cir. 1981) (table).

5. 92 F.3d 1271 (1st Cir. 1996).

6. Houlihan, supra, at 1289.

7. 496 F.3d 221 (2d. Cir. 2007).

8. Id. at 224.

9. Giglio v. United States, 405 U.S. 150 (1972).

10. Id. at 225.

11. See id. at 229 n.3.

12. See FBI Manual of Administrative Operations and Procedures, Part II, §10-13.3.

13. United States v. Stevens, 715 F.Supp. 2d 1 (D.D.C. 2009).

14. Schuelke Report, http://legaltimes.typepad.com/files/stevens_report.pdf.

15. United States v. Rodriguez, 496 F.3d 221. 229 n.3 (2d. Cir. 2007).

16. “The Right Thing” Ethical Guidelines for Prosecutors, Dist. Atty’s Ass’n of the St. of N.Y, August 2012.

17. Id.

18. See e.g. People v. Kelly, 88 N.Y. 2d 248 (1996); People v. Jackson, 171 A.D. 2d 688 (2d Dept. 1991); People v. Geathers, (1st Dept. 1991).

19. United States v. Riley, 189 F.3d 802 (9th Cir. 1999).

20. See n. 18, supra.

21. U.S. Attorneys’ Manual, tit 9, §165, available at http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00165.htm.

22. Id.