Jencks Act

In the United States, the Jencks Act () requires the prosecutor to produce a verbatim statement or report made by a government witness or prospective government witness (other than the defendant), but only before cross or adverse examination.

Jencks material is evidence that is used in the course of a federal criminal prosecution in the United States. It usually consists of documents relied upon by government witnesses who testify at trial. The material is described as inculpatory, favoring the United States government's prosecution of a criminal defendant.

The Jencks Act also covers other documents related to the testimony, or relied upon by government witnesses at trial. Typically, the material may consist of police notes, memoranda, reports, summaries, letters, related to an indictment or verbatim transcripts used by government agents or employees to testify at trial. This also includes a witness's grand jury testimony, if the witness testified at trial.Fed. R. Crim. Pro. 6

After the government's witness testifies, the court must, upon motion of the defendant, order the government to produce any statement of the witness in the government's possession relating to the subject matter as to which the witness testified. The court's denial of such a motion by a defendant is reversible error, although the court need not order the disclosure sua sponte.Government of the Virgin Islands v. Jamil Isaac, 2005 U.S. Dist. LEXIS 11038. The usual remedy for failure of the government to produce the documents is a mistrial and dismissal of criminal charges against the defendant.Jencks v. United States, 353 U.S. 657 (1957).

Overview

The Jencks Act was enacted by the United States Congress in response to the 1957 Supreme Court decision in Jencks v. United States,353 U.S. 657, 1 L. Ed. 2nd 1103, 77 S. Ct. 1007, 75 Ohio L Abs. 465, 40 BNA LRRM 2147, 32 CCH LC P 70731 in which the Court established various rules for the availability and production of statements of prosecution witnesses in federal criminal trials.

Clinton Jencks, born in Colorado Springs, Colorado in 1918, was a labor organizer in New Mexico. In 1954, he was convicted of lying about being a member of the Communist Party of the United States. During his trial, the government refused to produce documents relied upon by prosecution witnesses who were FBI informants, a move that prompted the passage of the act.

Clinton Jencks starred in the 1954 movie Salt of the Earth which was a dramatized version of his struggles organizing labor.

The Jencks Act

By the Act, Congress exercised its power to define the rules that should govern this particular area in the trial of criminal cases instead of leaving the matter of lawmaking to the courts.Palermo v. United States, 360 U.S. 343, 3 L. Ed. 2d 1287, 79 S. Ct. 1217, 59-2 U.S. Tax Cas. (CCH) parag. 9532; 3 A.F.T.R. 2d 1680 (1959), rehearing denied, 361 U.S. 855, 4 L. Ed. 2d 94, 80 S. Ct. 41 (19__). The Act, and not the Supreme Court decision in the Jencks case, governs the production of statements of government witnesses in a federal criminal trial.Rosenberg v. United States, 360 U.S. 367, 3 L. Ed. 2d 1304, 79 S.Ct. 1231 (19__). The Jencks Act is constitutional as an exercise of congressional power to prescribe rules of procedure for the federal courts.Palermo v. United States. In some instances however, the statute may be overridden by an accused's constitutional right to disclosure of exculpatory evidence.United States v. Gleason, 265 F. Supp. 880, 67-1 U.S. Tax Cas. (CCH) paragr. 9297, 19 A.F.T.R. 2d 1615 (S.D.N.Y.).United States v. Quinn, 364 F. Supp. 432 (N.D. Ga. 19__)

The Jencks Act governs production of statements and reports of prosecution witnesses during federal criminal trials. The Act provides that in any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a government witness or prospective government witness (other than the defendant) shall be the subject of subpoena, discovery or inspection until the witness called by the United States has testified on direct examination in the trial of the case.18 U.S.C. section 3500(a). After testimony of the witness, called by the government on direct examination, the court must, on motion of the defendant, order the United States to produce any statement of the witness in the possession of the government. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.

Definition Under the Jencks Act, a "statement" of a prosecution witness is:

A written statement made by the witness and signed or otherwise adopted or approved by him; A stenographic, mechanical, electrical or other recording, or a transcription of it, which is substantially verbatim recital of an oral statement made by the witness to an agent of the Government and recorded contemporaneously with the making of such oral statement; or A statement, however taken or recorded, or a transcription of it, made by the witness to a grand jury.18 U.S.C.S. section 3500(e).

If the government does not deliver a witness's Jencks statement to the defendant, the court may strike the witness's testimony or declare a mistrial.18 U.S.C.S. section 3500(d).

The Jencks Act has been characterized as intending to assure defendants of their right to confront their accusers under the Sixth Amendment.United States v. Carter, [CA 10 Okla] 613 F. 2d 256 (10th Cir. 19__), cert. denied, 449 U.S. 822, 66 L. Ed. 2d 24, 101 S. Ct. 81 (19__). Its provisions are not a constitutional mandate.United States v. Beasley (CA 5 Ala) 576 F 2nd 626, 78-2 USTC P 9586, 42 AFTR 2nd, 78-6360, reh den (CA 5 Ala) 585, F 2nd 796, 79-1 USTC P 9107, 42 AFTR 2nd 78-6369 and cert den 440 US 947, 59 L Ed 2nd 636, 99 SC 1426 subsequent civil proceeding summary judgment granted (SD Ala) 1993 US Dist LEXIS 16342, clarified. Adopted, dismissed (SD Ala) 1994 US dist Lexus Its requirements do not rise to constitutional stature.United States v. Halderman 181 US App DC 254, 559, F 2nd 31 The Confrontation Clause of the Sixth Amendment is not necessarily violated by the government's failure to produce Jencks Act material,United States v Hart (CA 5 Ala) 526 F 2nd 344, cert den 426 US 937 but may be violated by preventing the ability to confront government witnesses.Krillich v. US (CA 7 Ill) 502 F 2nd 680

Brady material In Brady v. Maryland373 US 83, 10 L Ed 2nd 215, 83 SC 1194 it was ruled that the suppression of evidence favorable to an accused violates due process, irrespective of the good or bad faith of the prosecutor, where such evidence is material to the guilt or punishment of the accused.23 Am Jur 2nd Depositions and Discovery section 450 The failure of the government to produce exculpatory evidence may or may not fall within the confines of the Jencks Act. In some cases, the production of documents must be made at a time prior to that required by the Jencks Act.Chavis v. North Carolina (CA 4 NC) 637 F 2nd 2137 Fed Rules evid Serv 1243United States v. Campagnuolo (CA5 Fla) 592 F 2nd 852 The Brady rule may require the prosecutor to disclose grand jury testimony prior to trial, if the information is exculpatory, as well as other Brady material.Hooper, Laural L.; Marsh, Jennifer E.; and Yeh, Brian. Treatment of Brady v. Maryland Material in United States District and State Courts’ Rules, Orders, and Policies: Report to the Advisory Committee on Criminal Rules of the Judicial Conference of the United States , Federal Judicial Center, October 2004.

In United States v. Anderson,United States v. Anderson (CA 5 Ga) 574 F 2nd 1347 when Brady material is contained within Jencks Act material disclosure is generally timely if the government complies with the Jencks Act.

The Jencks Act applies to statements "in the possession of the United States".18 USCS section 3500 This means in the possession of the federal prosecutor.United States v. Hutcher, CA2 NY 622, F2nd 1083 sert den. 449, US 875United States v. Trevino CA5 Tex, 556, F2nd 1265United States v. Polizzi CA9 Cal 801, F2nd 543United States v. Cagnini Ca 11 Fla 697, F 2nd cert den 464 US 856

Any information in control of the court reporter or the trial court is not subject to the Jencks Act. The Act does not affect material in control of state, as opposed to federal agencies.

It is important that requests made prior to trial which are denied on the basis of a statement by the prosecution that "the material is not in our possession" be reasserted at trial in front of the court. Otherwise, the court will consider the request to have been abandoned.United States v. McKenzie CA5 Tex, 768, F 2nd 602, cert den 474 US 1086

Subpoena of material The Jencks Act provides that no material shall be subject to subpoena, discovery or inspection until the said witness has testified on direct examination in the trial of the case.USCS section 3500 (a) In context, the word trial means a judicial proceeding conducted for the purpose of determining the guilt or innocence of a person, and according to the statutory language, the defense is not entitled to production of a witness' statement under the Act after the witness has testified at a preliminary hearing.United States v. Murphy CA 3 569, F 2nd 771, cert den 435 US 955Robbins v. US CA 10 NM 476 F 2nd 26Gibson v. Halleck DC Dist Col 254, F Supp 159

The bar against compulsory disclosure prior to the testimony of the witness whose statement is sought cannot be circumvented by resort to the Freedom of Information Act,Barceloneta Shoe Corp. v. Compton DC Puerto Rico 271. F. Supp 591 or Rule 16 of the Federal Rules of Criminal Procedure.FR Crim. P. Rule 16 (a)(2)

It is left to the discretion of the trial court to determine whether Jencks material can be delivered before trial. This can be done to expedite a trial involving many witnesses.United States v. Garrison ED La 348 F Supp 1112United States v. Narcisco ED Mich 446 F Supp 252 Disclosure of material may be required because of the Brady doctrine.

Material may not be excluded from production because it is claimed that it is the "work product" of government lawyers.Goldberg v. United States 425, US 94 47 96 S Ct 1338 In a related manner, the production of a final report does not exclude the production of preliminary drafts.United States v. Waldron CA 3 Pa 578, F 2nd 966, cert den 444 US 849

Tape recordings of an interview between a government agent and a government witness is producible under the Jencks Act after the witness has testified, if the recording relates to the witness' testimony.United States v. Esposito CA 7 Ind. 369, F 2nd 474 cert den 386 US 1023 87 US 1517 Composite drawings made from photographs are not producible. Photographs, if they relate to a witness' statement must be produced.United States v. Zurita CA 7 Ind. 369, F 2nd 474 cert den 386, US 1023Simmons v. United States 390 US 377, 88 SC 367 Notes taken by a prosecutor or a law enforcement officer pertaining to an interview with a potential government witness may be subject to production under the Jencks Act if the witness testifies at trial.United States v. Harris (CA 9) Wash 543 F 2nd 12475 ALR 3rd 763 section 13

Oral statements