Jencks Act - Determining If The Documents Should Be Produced - Manner of Determination

Manner of Determination

It is within the discretion of the court to determine in the most appropriate manner whether a requested document is a producible statement. To determine whether a document is a statement under the Act, the court may

– Conduct a voir dire examination of the declarant on the witness stand.

– Conduct a hearing outside the presence of the jury to examine evidence extrinsic to the statement.

– Examine the requested document in camera.

The act requires in camera inspection to resolve any question as to whether or to what extent the document relates to the subject matter of the witness’ testimony.

The determination of the production and admissibility of documents under the Jencks Act is not adversarial in nature, but only a proceeding to discharge the responsibility to enforce the Act. It is not the responsibility of the defense to prove that the document should be produced.

If after in camera inspection, of the requested document the court determines that only part of it relates to the subject matter of the witness’s testimony, the court must excise those parts which do not relate to the witness’ testimony.

The sections to be excluded is in the discretion of the court.

Material cannot be excluded simply because the prosecution claims it is a matter of internal security, or confidentiality of the information.

If the material is deemed to be work product of the prosecution, it can be excluded.

If the defendant objects to the excision of parts of a document, the full text of the document must be preserved on the record for purposes of appeal.

Notes prepared by law enforcement agents of an interview with a potential government witness may be subject to production under the Jencks Act, provided the witness testifies at the trial. Some government practices have led to the destruction of such notes prior to any trial. This is not, of itself, considered to be bad faith.

A judicial hearing may be held to determine if the destruction of the notes was bad faith. If it is the normal procedure of the agency to destroy notes, it will generally not be considered to be bad faith.

The Second Circuit has ruled that agent notes used to prepare a final report must also be preserved.

If the prosecution elects not to comply with the order to produce Jencks Material, the court shall strike the testimony of the witness and continue with the trial. If the interests of justice require such, the trial is properly called a mistrial.

It is incumbent upon the defense to file a motion with the court that it believes that the failure of the prosecution to produce the document is a violation of the Jencks Act. If the interests of justice require such, the trial is properly called a mistrial.

Although rough notes of an interview with a witness are producible, under Jencks Act where such notes are a substantially verbatim recital of the witness’ oral statements, failure to do so is probably harmless where the notes are substantially the same as a report based on the notes and released to the defense.