Jencks Act - Subpoena of Material

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. 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.

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, or Rule 16 of the Federal Rules of Criminal Procedure.

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. 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. In a related manner, the production of a final report does not exclude the production of preliminary drafts.

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. Composite drawings made from photographs are not producible. Photographs, if they relate to a witness’ statement must be produced. 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.