‘Brady Wrapped in Jencks Packaging’, How Categories of Exculpatory Evidence Can Be Conflated to Delay Production, and How Defense Counsel Can Fight Back

I. Introduction

Rooted in the due process clauses of the Fifth and Fourteenth Amendments, Brady requires the govern­ment to disclose exculpatory evidence, that is, “ev­idence favorable to the accused” which is “material to either guilt or punishment.”1 Numerous decisions, many local rules, and even Justice Department policy recognize two basic categories of exculpatory informa­tion: (1) “core” Brady material; and (2) impeachment material. Jencks2 material — statements of a witness that “relates to the subject matter as to which the wit­ness testified” — is a separate category of discovery that can, and often does, contain core Brady, impeach­ment material, both, or neither.

Both core Brady and impeachment material must be produced in time for the defendant to make effec­tive use of the information at trial. By contrast, Jencks material need not be produced “until after the wit­ness has testified on direct examination in the trial of the case.”3 Because the character of the exculpatory evidence categories — and the time needed to make effective use of them — differs, so too does the re­quired timing of disclosure. But too often — partic­ularly in jurisdictions where “Jencks trumps Brady” — prosecutors attempt to lump all exculpatory evi­dence together, producing core Brady on an impeach­ment timeline. By wrapping core Brady in “Jencks packaging” — interview memoranda and grand jury transcripts — prosecutors can utilize “Jencks trumps Brady” authorities to justify delaying production. In so doing, prosecutors sometimes claim benevolence by producing “early Jencks,” even while potentially producing tardy impeachment material and late core Brady. Defense counsel unfamiliar with these tac­tics are often challenged to overcome the blending of these categories and their repackaging, typically when judges rely on decisions that fail to make clear the difference between the two categories of exculpa­tory information.

“Core” Brady evidence is evidence that can be used directly to exonerate the defendant. This category in­cludes information suggesting that the charged offense did not occur, was committed by another individual, or tends to show the defendant lacked the requisite mental state. Impeachment material includes information that can be used to attack the credibility of witnesses to sup­port the inference that the government’s proof is insuffi­cient. It includes prior inconsistent statements, evidence of a witness’s difficulty in perceiving, articulating or remembering certain events, and infor­mation demonstrating a witness’s bias, whether based on financial interest, ra­cial, religious, gender or other animus, or some additional factor.

The lines of demarcation among these categories are not always clear. For example, evidence that an eyewit­ness initially picked a different indi­vidual out of a lineup constitutes core Brady to the extent it shows that some­one other than the defendant could have committed the offense. But such evidence could also constitute im­peachment material if the witness lat­er changed her story and identified the defendant as the culprit.

As articulated in this article, core Brady should always drive production schedules because more time is need­ed to effectively make use of that ma­terial. Since core Brady can be used directly to exonerate the defendant, the government seldom includes it in its case-in-chief or rebuttal. Instead, the defendant must make affirmative use of the information, and that often requires defense counsel further in­vestigate to understand the full scope and import of the evidence, locate and subpoena all relevant witnesses and documents, and fully integrate the ev­idence into the defense theory to make effective use of that information.

In this context, timing of pro­duction matters greatly: the longer the government waits to produce core Brady, the less likely defense counsel will be able to utilize it fully and prop­erly. But unless defense counsel under­stands the legal issues in time to avert the delayed production of blended discovery, a prosecutor and an unin­formed court can combine to deprive the defendant of the right to make ef­fective use of core Brady. Lumping the two categories together and producing both on an impeachment timeline cre­ates a façade of compliance with the effective use standard. Even worse, combining both categories with other witness statements produced as “ear­ly Jencks” enables the government to portray itself as being overly generous to the defense. Particularly in juris­dictions where “Jencks trumps Brady,” this tactic can serve to inoculate the government from later allegations of discovery violations on a range of is­sues. This article seeks to help defense counsel better understand how those problems can unfold, and how to chal­lenge this unfair disclosure tactic.

II. Categories of Exculpatory Evidence

There is a clear difference between core Brady and impeachment materi­al. Defense counsel advancing some of the arguments and strategies reviewed below should expect to encounter a threshold challenge: convincing the government, and often the court, that such a distinction exists. In a dispute over that question, prosecutors might rely on United States v. Bagley, in which the Court recognized that “impeach­ment evidence … as well as exculpatory evidence, falls within the Brady rule.”4

Read without context, Bagley’s lan­guage including impeachment within the Brady rule might be interpreted as precedent that both categories may be produced on the same schedule. But timing was not at issue in Bagley. In­stead, the case turned on whether to grant relief where the government sub­mitted affidavits that two significant government witnesses had not been given a benefit for their testimony when in fact each received a cash payment. On appeal, the Ninth Circuit deemed the failure to disclose this information — which was clearly impeachment ma­terial — as “even more egregious” than the deprivation of exculpatory evidence i.e., Brady.5 The Supreme Court dis­agreed, but nevertheless acknowledged the significance of the evidence. Bagley simply holds that both exculpatory and impeachment evidence can have sub­stantial value — not that both should be turned over at the same time.6

Numerous cases recognize the dis­tinction between core Brady and im­peachment material with regard to the timing of production, either explicitly or implicitly. Courts sometimes use dif­ferent terms to define these categories but adhere to the same basic distinc­tions.7 In addition, numerous local rules differentiate between core Brady and impeachment material when setting discovery production deadlines.8 The Justice Manual — while not creating any enforceable rights — also distinguishes exculpatory evidence from impeach­ment material when considering the timing of production.9

No Supreme Court case dictates exactly when exculpatory evidence — whether core Brady or impeachment material — must be produced. Even so, virtually every circuit adheres to the “effective use” standard.10 As ap­plied to the two categories of excul­patory evidence, this standard should produce an adjustable touchstone. In theory, because core Brady may re­quire significant pretrial investiga­tion for the defendant to use it effec­tively, earlier production is required. By contrast, impeachment material is typically witness-specific, and thus a shorter lead time might be sufficient to make effective use.

But a standard of flexibility can fos­ter subjective interpretations by prose­cutors, some of which could be conve­niently disingenuous. Regardless, the effective use standard gives counsel a foothold to argue for earlier production, and voice objection — with a request for proportionate sanctions — when insuf­ficient lead time compromises a defen­dant’s right to utilize the exculpatory evidence effectively.

III. Jencks Trumps Brady — But Under What Circumstances?

The Jencks Act covers statements that relate to the subject matter of the witness’s testimony — whether those statements are exculpatory is irrelevant. As a result, Jencks material is almost al­ways broader than the range of exculpa­tory evidence required to be produced. When the statement is neither exculpa­tory nor impeaching, however, courts lack statutory authority to order disclo­sure before the witness testifies.

Most courts recognize that strict ad­herence to the Jencks Act would disrupt trials. Defense counsel presented with hundreds of pages of Jencks material would need a continuance to read and utilize its contents. Thus, the govern­ment routinely provides “early Jencks,” producing statements for anticipated witnesses often 7-10 days before trial.

While early Jencks helps the de­fense when the statements contain neither exculpatory nor impeaching material, problems arise when prose­cutors blend these categories and pro­duce them both as “early Jencks.” Lat­er production of core Brady and even some impeachment material — even if provided earlier than the Jencks Act requires — can compromise a defen­dant’s ability to make effective use of that exculpatory evidence.

To deal with this serious dilemma, defense counsel must recognize the conditions that foster its creation. At the outset, understanding controlling law is essential. Clear lines exist among circuits on the issue of whether “Jencks trumps Brady.” Three circuits (the Fifth, Sixth and Ninth) expressly hold that Jencks trumps Brady;11 three others (the Second, Third and D.C. Circuits) ex­pressly hold that Brady trumps Jencks;12 and the remaining six circuits (the First, Fourth, Seventh, Eighth, Tenth, and Eleventh) have not ruled on the mat­ter.13 A deeper analysis, however, pro­duces a more nuanced conclusion.

Before attacking the underly­ing ambiguity, counsel practicing in “Jencks trumps Brady” jurisdictions should, as an initial matter, challenge the primary proposition. To be sure, adverse precedent at the circuit level all but ensures that these efforts will fail in the district court. Nevertheless, the existing circuit split makes the issue ripe for Supreme Court review, and parties seeking to take advantage of any subsequent ruling overturning that adverse precedent must have pre­served the issue.

To do so, counsel must cite the adverse controlling precedent at the outset. In addition, counsel should at least advance the primary argument in support of the “Brady trumps Jencks” view: that it “is inconceivable that a statutory obligation should supersede a constitutional one, especially where even the statutory obligations [have] a constitutional Due Process basis.”14

Once that objection is preserved, counsel should address the relatively limited impact of Jencks trumps Brady decisions decided in the impeachment — as opposed to core Brady — context. The type of Brady matters, and most, if not all, of the holdings asserting that principle arise from cases where the Brady material was impeachment material, not core Brady; some circuits even note that fact and limit their holdings accordingly.15 When prose­cutors endeavor to read Jencks trumps Brady cases broadly, defense counsel should hold the line and make sure the court distinguishes the factual set­tings underlying those rulings.

In addition, weighing the import of a “Jencks trumps Brady” ruling requires a determination of whether and to what extent the purposes un­derlying the Jencks Act are implicat­ed in a given scenario. Among other purposes, the Jencks Act seeks to pro­tect potential government witnesses from threats, harm, or intimidation before trial.16 Decisions allowing the government to withhold production of impeachment material often rest on the risk of such harm.17 When that risk does not exist — such as in most white collar cases — no need exists to delay production of Jencks material, especially that which may also be im­peachment material, to effectuate the statute’s purpose. Ultimately, the most helpful decisions are those recogniz­ing the need to balance the defendant’s right to exculpatory evidence with the potential dangers the Jencks Act seeks to minimize.18

IV. Effect on Discovery Production Methodology

The Supreme Court has long rec­ognized that “[t]here is no general constitutional right to discovery in a criminal case, and Brady did not cre­ate one.”19 Counsel seeking discovery of any type should expect the gov­ernment to note that “[a] defendant’s right to discover exculpatory evidence does not include the unsupervised authority to search through the [gov­ernment’s] files.”20 At the same time, prosecutors are cognizant of their obligation to disclose exculpatory ev­idence, and most take heed of the Su­preme Court’s expectation that when application of the “inevitably impre­cise standard” for identifying exculpa­tory evidence fails to identify clearly that which must be turned over, “the prudent prosecutor will resolve doubt­ful questions in favor of disclosure.”21

The manner and timing of that dis­closure runs a wide spectrum among — and sometimes within — different prosecutorial offices. There is a range of approaches by prosecutors making exculpatory evidence available. In or­der of the greatest to least transparen­cy, those options include the following:

1. Full and immediate production of everything — Under this approach, the government simply provides copies of all grand jury transcripts and all in­terview memoranda generated during the investigation. The government makes no effort to sift through the materials to determine which is core Brady, which is impeachment material, which is Jencks, and which is none of the above. Instead, if the transcript or memoranda was generated during the investigation, the government produc­es a copy to defense counsel.
2. Production on “viewer” basis on USAfx — Here, the government utilizes a feature of USAfx, the file sharing tool typically used, to allow defense counsel to review all grand jury transcripts and all interview memoranda generated during the in­vestigation, but not to download or print copies. Under this approach, de­fense counsel are permitted to spend as much time as they want reading the materials. Their ability to do so efficiently is constrained, howev­er, because they can only look at the documents — not download or print them. To make more extensive use of the information contained, counsel would have to dictate the contents of the documents and generate their own copies or make notes. Addition­ally, depending on the government’s attention to detail when uploading the documents on an ongoing basis, creating a spreadsheet of which doc­uments were made available can help counsel keep track of which materials have already been reviewed and which are new.
3. Limiting counsel to review on­site — While less common in the wake of COVID and with the advent of file-shar­ing services, defense counsel in past cas­es have been limited to reviewing tran­scripts and memoranda onsite at the U.S. Attorney’s Office. This method of production combines the worst aspects of viewing materials on USAfx and adds time constraints — counsel can only conduct the review during normal busi­ness hours. In addition, prosecutors em­ploying this approach frequently have a paralegal or agent in the room during the review to prevent counsel from dic­tating or taking pictures of the materials. When counsel conducts the review with the client, this arrangement hinders the ability to discuss the significance of par­ticular items. Depending on the pros­ecution’s approach, counsel operating under this arrangement are sometimes limited to “attorney notes” lest defense teams simply send over support staff or others to recopy the materials on a ver­batim or near- verbatim basis.
4. Selected production of certain materials — Under this method, pros­ecutors endeavor to make qualitative judgments about which parts of the in­formation in the transcripts and inter­view memoranda they need to produce. This approach is fraught with peril for several reasons, including the subjective nature of determining whether infor­mation qualifies as exculpatory. To be sure, some universally applicable defi­nitions exist, and some information is readily identifiable. The devil is often in the details, however, and prosecutors unfamiliar with the nuances of defend­ing cases — and perhaps uninterested in learning them — often fail to appreciate the significance of certain information. In the eyes of too many prosecutors, ex­culpatory information must have two components: (1) it must unequivocally state that the defendant did not commit the offense; and (2) the prosecutor must find the information genuine or, at least, credible. Most times, very little informa­tion meets that standard.22
5. Withholding of everything un­der production made as “early Jencks” — In “Jencks trumps Brady” jurisdictions, this is the most common method pros­ecutors use to produce exculpatory evi­dence. Under this approach, production of core Brady is delayed until disclosed as early Jencks. Because the material is ultimately produced, the prosecution has limited exposure for violating its discovery obligations — particularly when no hard and firm deadlines exist for the production of such information. As a result, defense counsel has limited remedies beyond seeking a continuance of the trial.23 As a practical matter, this approach can throw trial preparation into upheaval by taxing defense resourc­es needed to both review the newly pro­duced material and integrate changes as necessary into the defense theory.

In our experience, and in our pri­mary district, prosecutors as of late typically employ approach number 1 or number 2. In other districts, howev­er, prosecutors consistently utilize ap­proach 4 and approach 5. Because those approaches can significantly impact de­fense strategies, we focus our discussion below on those latter categories.24

V. What Counsel Should Do When the Government Delays Production of Core Brady

When prosecutors conflate core Brady and impeachment material — whether intentionally or otherwise — counsel must take affirmative measures early. First, counsel should memorialize any concerns in a letter to the govern­ment. Absent further evidence, counsel should not assume that prosecutors un­derstand the significance of mixing the two categories of exculpatory evidence. Almost all courts expect the parties to try to resolve these issues on their own, and offering prosecutors an opportunity to directly address the issue serves as a prudent starting point.

If the government remains stead­fast in the view that core Brady and im­peachment material are not only meant to be combined but also produced to­gether closer to trial than is adequate for effective use, counsel’s next step should be a motion to compel. In the early stag­es of that process, the motion should endeavor to educate rather than attack. The motion should recognize that even if convincing prosecutors of the errors of conflating categories is a lost cause, the court may be unaccustomed to such a motion that rests on the distinction.25

In addition to these measures, we suggest the additional steps below.

A. Make Specific Requests Under Agurs

In United States v. Agurs, the Court held that when a defendant makes a “specific and relevant” discovery re­quest for information that is “material” or even “if a substantial basis for claim­ing materiality exists,” the government’s “failure to make any response is seldom, if ever, excusable.”26 As Agurs held, in that situation “it is reasonable to require the prosecutor to respond either by fur­nishing the information or by submit­ting the problem to the trial judge.”27

Defense counsel faced with the government’s refusal to produce core Brady should pose Agurs inquires. Among other requests (including those seeking impeachment material), counsel should consider asking for in­formation which shows:

• the defendant’s good faith with re­spect to any of the allegations in the indictment;
• the defendant’s lack of involvement in any criminal activity alleged in the indictment;
• the involvement of others in the charged criminal activity, even if just to show the relative degree of involvement by the defendant;
• the defendant’s lack of knowledge or intent of any criminal activity alleged in the indictment, including alleged criminal activity engaged in by others; and
• the legitimacy of the defendant’s business or other activities.

In addition to these examples, coun­sel should make a specific request for any “negative exculpatory information” relating to the defendant. While deci­sions on this topic are not widespread, clear and compelling authority supports the proposition that when a witness in a position to know of the defendant’s par­ticipation in wrongdoing fails to con­firm the defendant’s illegal involvement, the statement is exculpatory.28

It may be that the information is also impeachment material if the witness later changes his story and implicates the defendant. Even if that never occurs, the information is due to be produced for a simple reason: a witness who fails to im­plicate the defendant — despite having knowledge of the relevant activity — is highly unlikely to be called by the gov­ernment, and thus the information will not be produced to or discoverable by the defendant. Impeachment material is not produced for witnesses the government does not call.29

Used effectively, Agurs requests achieve one of two purposes: (1) acquir­ing evidence that can be used affirma­tively to attack the government’s case; or (2) forcing the government to effectively declare that no such evidence exists. The value of the latter outcome is clear: no prosecutor wants to be seen as having made a misrepresentation to the court. If required to attest that the Agurs infor­mation sought does not exist, a prudent prosecutor will recognize the risk of later being proven wrong. Even a good faith mistake by the prosecutor can look problematic in that context — where the prosecutor made a conscious choice not to disclose interview memoranda and grand jury transcripts — and that con­cern may well prompt the prosecutor to expand the scope of disclosed evidence.

While Agurs requests can create leverage in some situations, defense law­yers should be mindful of the temptation to overplay their hand. It is often enticing for counsel to make a formal request that the government “certify” that it has pro­duced all responsive material, or that no such material exists. No specific authority mandates such a certification, however. Courts are hesitant to require prosecutors to provide such a guarantee, particularly in larger cases (where full knowledge of all available discovery can be difficult).

As a practical matter, obtaining a certification provides little additional advantage since even if the prosecu­tor’s representation is later proven in­correct, most courts would afford the government the benefit of the doubt. The disadvantage is obvious: a court might deem the request an attempt to trap the government and reject not only the certification component but the re­quest entirely. Moreover, a certification is often unnecessary because pressing Agurs requests achieves the primary goal: ensuring that the prosecutor has conducted a thorough review of avail­able evidence to determine whether it contains material that should be pro­duced. Accordingly, we do not recom­mend counsel demand a certification in response to Agurs requests.

B. Avoid Categorizing Requests as Seeking “Early” Brady or Jencks

Discussion of Jencks issues inevita­bly triggers the government or the court to note that the timing of production contained in the statute cannot be over­ridden by the court. Similarly, counsel should expect substantial resistance when demanding the immediate pro­duction of impeachment material. In this context — where courts often lack the formal authority or at least obliga­tion to order immediate production of certain discovery — counsel should avoid framing requests for “early” pro­duction of any category of discovery, including core Brady. Such an approach potentially suggests that the timing of Jencks production should be a factor in determining Brady production. The risk is heightened in jurisdictions lacking specific disclosure deadlines, as the ar­gument threatens to cloud the governing standard: whether production occurs on a schedule that allows for “effective use.”

But while effective use of impeach­ment evidence requires a much shorter lead time, core Brady differs entirely. Even if a prior inconsistent statement or evidence of a government witness’s bias can be used effectively against a witness relatively soon after receipt, information regarding the defendant’s lack of involvement in the offense, or lack of criminal intent, requires thor­ough investigation and development in order to be used effectively. Indeed, some witnesses may be scrutinized less closely — or perhaps not at all — ab­sent some hint that keener analysis is necessary.

Everyone understands that the gov­ernment’s disclosure that a different individual committed the offense or af­firmative proof of the defendant’s good faith cannot be instantly integrated into an existing theory of defense. Time is needed to investigate fully such evidence and maximize its value. But a prosecutor or a judge — even those acting in good faith but with a lack of understanding of the practical realties of defending a pros­ecution — may fail to understand how significantly late disclosure of core Brady can require a comprehensive reshaping of the defense case (or at least time to evalu­ate thoroughly whether to do so). To min­imize that risk, counsel should emphasize the importance of core Brady, the manner in which it differs from Jencks material or impeachment evidence, and make clear that, as a result, the production of core Brady carries a much greater urgency and receiving it in an untimely manner car­ries significant consequences.30

C. Seek Affirmative Relief When Late Production Prevents Effective Use

Despite counsel’s best efforts, core Brady is still often produced on an im­peachment timeline. When that oc­curs, counsel’s options are limited. No reported case (and no unreported case of which we are aware) holds that pre­trial dismissal is the proper remedy in that scenario. Despite the absence of af­firmative precedent on the point, coun­sel who receives core Brady late should still seek dismissal under the appropri­ate circumstances, particularly when prejudice has resulted, to preserve claims of error. Whether the delay in production deprived the defendant of the ability to make effective use of the material (e.g., where a witness has died, become unavailable or uncooperative, or when necessary related evidence has been destroyed or otherwise become unavailable) or caused the defendant to lose opportunities that might have otherwise existed (e.g., the expiring of deadlines to file certain motions), counsel should highlight the degree and manner to which the defendant’s ability to present a defense has been undermined by the tardy production.

Regardless of whether some mean­ingful sanction for late disclosure might be available, counsel should almost al­ways consider requesting a continuance. The failure to do so has an outsized impact that reverberates post-trial: it is considered not simply a waiver of the need for more time but also an acknowl­edgement of the evidence’s relative un­importance. That acknowledgment, in turn, serves as the basis to deny post-tri­al relief either because it amounts to a concession that the evidence was not particularly important, that additional time was not necessary to make mean­ingful use, or both. In other words, failing to seek a continuance fails to preserve the record establishing — or at least asserting — prejudice.

Some counsel might believe that re­questing a continuance could effectively waive any objection to the late disclo­sure. To some extent, this could prove true. But the alternative is worse. Failing to object definitely forfeits the right to make that point. For that reason, unless truly compelling — and almost unique — reasons exist not to seek a continu­ance following late disclosure of core Brady, counsel should do so.

In addition to seeking a continu­ance, counsel should request addition­al relief for late disclosure. Particularly when the information disclosed falls within the specific Agurs requests made previously, counsel should highlight the fact that the late-produced information was readily identifiable as core Brady — either because of its obvious character­istics, because the defendant identified it as such in making a prior Agurs re­quest, or both. In that scenario, counsel will be better positioned to obtain re­lief beyond a mere continuance (which seldom harms the government and can sometimes be welcomed by prosecu­tors). Such relief can include barring the government from offering certain wit­nesses or other evidence, making cer­tain arguments in closing, or providing jurors with a curative instruction that highlights the government’s failings. Undoubtedly, such remedies are chal­lenging to obtain. But if counsel does not ask, the answer is always no.

VI. Conclusion

Criminal cases are challenging, even under the most favorable condi­tions. When defense counsel are de­prived of the ability to review potential­ly relevant evidence — including that legally required to be produced — those difficulties are compounded. Ultimately, counsel operating in jurisdictions where wrapping Brady in Jencks packaging effectively delays production must em­brace the challenge of making sure the prosecutor and the court understand that, at most, “Jencks trumps Brady” means “Jencks trumps Brady only when the discovery is impeachment materi­al” and not “when the discovery is core Brady.” By better understanding how the most well-intentioned prosecutors can conflate core Brady and impeachment material, and how the worst-intentioned ones can weaponize a lack of clarity on those issues, counsel are best equipped to educate judges, advocate for remedial measures, and preserve claims of error. In the process, those efforts will better protect both counsel’s current and fu­ture clients, as well as other defendants.

Republished with permission. This article,"‘Brady Wrapped in Jencks Packaging’, How Categories of Exculpatory Evidence Can Be Conflated to Delay Production, and How Defense Counsel Can Fight Back," was originally published in The Champion Magazine by the National Association of Criminal Defense Lawyers (NACDL).

Notes

1. Brady v. Maryland, 373 U.S. 83, 87 (1963). While Brady left the term “material” undefined, the Court later described it as that whose “suppression undermines confidence in the outcome of the trial.” United States v. Bagley, 473 U.S. 667, 678 (1985); see id. (“evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different”).

2. 18 U.S.C. § 3500.

3. 18 U.S.C. § 3500(a).

4. Bagley, 473 U.S. at 676 (1985).

5. Bagley v. Lumpkin, 719 F.2d. 1462, 1464 (9th Cir. 1983), rev’d, 473 U.S. 667 (1985).

6. While the Supreme Court has not spoken on the timing of core Brady versus impeachment material prior to trial, it has recognized a distinction in the context of a guilty plea. See United States v. Ruiz, 536 U.S. 622, 633 (2002) (“the Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant”).

7. See, e.g., United States v. Lujan, 530 F. Supp. 2d 1224, 1255 (D. N.M. 2008) (recognizing that “exculpatory evidence will usually require significant pretrial investigation to be useful to a defendant at trial, and thus, disclosure should generally be required well before pure Giglio impeachment evidence, which usually does not require substantial time to prepare for its effective use at trial”); United States v. Beckford, 962 F. Supp.2d 780, 787-88 (E.D. Va. 1997) (“Brady material consists primarily of two types of evidence: (1) exculpatory evidence, which goes to the heart of the defendant’s guilt or innocence, … and (2) impeachment evidence, which may affect the jury’s assessment of the credibility of a prosecution witness”); United States v. Hart, 760 F. Supp. 653, 654 n.1 (E.D. Mich. 1991) (noting that “directly exculpatory evidence refers to evidence that would support a direct inference that the defendant is innocent” while “impeachment information [which] merely supports an inference that there may be insufficient evidence to find guilt beyond a reasonable doubt”). We use the terms “core Brady” and “impeachment material” herein.

8. Many districts’ local rules do not address at all discovery in criminal matters, much less reference a distinction between what this article terms core Brady and impeachment materials. For those that at least recognize such a distinction, several fail to differentiate the timing for production. See, e.g., District of New Hampshire L.Cr.R. 16.1 (requiring both categories be produced at least 21 days prior to trial); District of Connecticut, Standing Order o Discovery (a)(1) (both categories to be produced within 14 days of arraignment); Northern District of Florida, L.Cr.R.26.2 (both categories to be produced within 7 days of arraignment); Southern District of Alabama, L.Cr.R. 16 (both categories at arraignment “or on a date otherwise set by the Court for good cause shown”); Middle District of Alabama, L.Cr.R 16.1(a) (same); District of Columbia, L.Cr.R 5.1 (both categories to be produced “as soon as reasonably possible after its existence is known, so as to enable the defense to make effective use of the disclosed information in the preparation of its case”). Other districts not only recognize the distinction but order that core Brady be produced first — often at arraignment or soon thereafter. See, e.g., District of Massachusetts, L.Cr.R 116.2(b) (core Brady to be produced within 28 days of arraignment; impeachment material at least 21 days prior to trial); District of Vermont, L.Cr.R 16 (core Brady produced within 14 days of arraignment; impeachment material not less than 14 days prior to jury selection); Northern District of New York, L.Cr.R. 14.1 (core Brady within 14 days of arraignment; impeachment material at least 14 days prior to jury selection); Northern District of West Virginia, L.Cr.R. 16.05, 16.06 (core Brady to be produced within 7 days of request, which may be made upon filing of charging document; impeachment material at least 14 days prior to trial); Southern District of Georgia, L.Cr.R. 16B (core Brady to be produced within 7 days of arraignment; impeachment material at least 14 days prior to trial); Middle District of Tennessee, L.Cr.R. 16.01(a)(3) (core Brady “must be disclosed reasonably promptly upon discovering it”; impeachment material “must be disclosed within a reasonable time before trial to allow the trial to proceed efficiently”).

9. Compare Justice Manual, § 9-5.001.D.1 (directing that exculpatory evidence be disclosed “reasonably promptly after it is discovered”) with id., § 9-5.001.D.2 (directing that impeachment material “will typically be disclosed at a reasonable time before trial to allow the trial to proceed efficiently”).

10. See United States v. Cruz-Feliciano, 786 F.3d 78, 88 (1st Cir. 2015); United States v. Coppa, 267 F.3d 132, 146 (2d Cir. 2001); United States v. Higgs, 713 F.2d 39, 44 (3rd Cir. 1983); United States v. Smith Grading & Paving, Inc., 760 F.2d 527, 532 (4th Cir. 1985); United States v. Walters, 351 F.3d 159, 169 (5th Cir. 2003); United States v. Crayton, 357 F.3d 560, 569 (6th Cir. 2004); United States v. Higgins, 75 F.3d 332, 335 (7th Cir. 1996); United States v. Taylor, 175 F.3d 1026 (8th Cir. 1999); United States v. Tyndall, 521 F.3d 877, 882 (8th Cir. 2008); United States v. Juvenile Male, 864 F.2d 641, 647 (9th Cir. 1988); United States v. Pollack, 534 F.2d 964, 973 (D.C. Cir. 1976). Only the Tenth and Eleventh Circuits have yet to speak directly on this issue.

11. See United States v. Presser, 844 F.2d 1275, 1283 (6th Cir. 1988); United States v. Jones, 612 F.2d 453, 455 (9th Cir. 1979); United States v. Scott, 524 F.2d 465, 467 (5th Cir. 1975).

12. See United States v. Coppa, 267 F.3d 132, 145–46 (2d Cir. 2001); United States v. Tarantino, 846 F.2d 1384, 1414–15 & n.11 (D.C. Cir. 1988); United States v. Starusko, 729 F.2d 256, 263 (3d Cir. 1984).

13. Some district courts within those circuits have also held that Brady trumps Jencks. See, e.g., United States v. Owens, 933 F. Supp. 76, 84–85 (D. Mass. 1996); Lujan, 530 F. Supp. 2d at 1256; United States v. McVeigh, 923 F. Supp. 1310, 1315 (D. Colo. 1996); United States v. Thevis, 84 F.R.D. 47, 54 (N.D. Ga. 1979).

14. United States v. Snell, 899 F. Supp. 17, 21 (D. Mass. 1995); see United States v. Narciso, 446 F. Supp. 252, 270 (E.D. Mich. 1977) (“when two principles of law conflict with one another the criminal justice system demands that the principle favoring greater discovery in favor the accused must prevail, particularly where, as here, the principle favoring disclosure is of constitutional origin”).

15. See, e.g., United States v. Bencs, 28 F.3d 555, 560 (6th Cir. 1994) (Jencks trumps Brady ruling arising out of defendant’s challenge to “the government’s failure to respond to a pretrial discovery request by producing memoranda of interviews” with two witnesses who testified at trial). Later authority makes clear the point. See United States v. Brazil, 395 F. App’x 205, 216 (6th Cir. 2010) (“[p]ut another way: the Jencks Act trumps Brady where impeachment evidence is Jencks Act material”).

16. See, e.g., United States v. Coppa, 267 F.3d 132, 138 (2d Cir. 2001) (“early disclosure of the identities of potential witnesses could undermine undercover operations and ongoing investigations involving these witnesses”); United States v. Presser, 844 F.2d 1275, 1285 (6th Cir. 1988) (“the protection of potential government witnesses from threats of harm or other intimidation before the witnesses testify at trial”).

17. See, e.g., United States v. Beckford, 962 F. Supp. 780, 794-95 (E.D. Va. 1997) (“the defendants here are alleged to be members of an extensive drug trafficking organization that routinely murdered those who impeded their drug trafficking objectives”) compare United States v. Shifflett, 798 F. Supp. 354, 357 (W.D. Va. 1992) (“the witnesses are government agents … not likely candidates for threats or bribery”).

18. See, e.g. United States v. Tarantino, 846 F.2d 1384, 1416–1417 (D.C. Cir. 1988) (recognizing overlap between Brady and Jencks in attempting to balance interests underlying both doctrines); United States v. Martino, 648 F.2d 367, 384 (5th Cir.1981) (“when alleged Brady material is contained in Jencks Act material, disclosure is generally timely if the government complies with the Jencks Act”); United States v. Pollack, 534 F.2d 964, 973–74 (D.C. Cir. 1976) (“Disclosure [of Brady information] by the government must be made at such a time as to allow the defense to use the favorable material effectively in the preparation and presentation of its case, even if satisfaction of this criterion requires pre-trial disclosure”); Shifflett, 798 F. Supp. at 356-57 (“The rationale that emerges, therefore, is that the due process requirements of Brady must be met early enough to allow the defense to make effective use of the exculpatory statements at trial, while at the same time the dangers that the Jencks Act seeks to control must be minimized”).

19. Weatherford v. Bursey, 429 U.S. 545, 559 (1977).

20. Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987).

21. United States v. Agurs, 427 U.S. 97, 108 (1976).

22. Some prosecutors use “summary letters” to produce exculpatory information. Because these derivative documents reflect the government’s characterizations of statements made by witnesses — rather than simply producing the statements themselves — they are often helpful to the defendant only by accident. While we are not aware of any court that has prohibited the use of summary letters, authority exists that criticizes the practice. See, e.g., United States v. Stevens, Case No. 1:08-cr-00231 (D.D.C.) Doc. 373 at 8-9 (April 7, 2009 Hearing Transcript); United States v. Poindexter, No. 88-0080, 1990 U.S. Dist. Lexis 2023 (D.D.C., Mar. 5, 1990).

23. We discuss further below the options counsel should consider when faced with the production of core Brady as early Jencks.

24. This is not to suggest that counsel handling a case in which the government employs number 2 or number 3 should concede defeat. Even if that form of production ultimately comports with the government’s obligations, counsel may still find it beneficial to seek relief from the court. A significant number of judges are wholly unaware of the process by which the government makes discovery available. Most likely, courts assume if counsel does not voice complaint, the defendant is satisfied with the manner and timing of production. By detailing the way in which discovery has been provided — particularly when the government’s approach rests on tenuous reasoning (such as nonexistent concerns about witness safety) — counsel can ensure that the court is fully aware of the government’s approach. Most often, this is done in a motion to continue which explains that counsel needs more time to review available evidence — including that which the government is constitutionally obligated to produce — because prosecutors have employed a production methodology that would impress Rube Goldberg.

25. In this context, it is particularly important that defense counsel avoid framing the motion so that it can be interpreted as a request for “early” production of anything. See § V(B), infra. Judges see plenty of those types of motions, and nothing about them signals a need for an exhaustive review before a cursory denial.

26. Agurs, 427 U.S. at 106.

27. Id.

28. See, e.g., Jones v. Jago, 575 F.2d 1164, 1168 (6th Cir. 1978) (where government failed to disclose “[t]he statement of an eyewitness to a crime which makes no reference even to the presence of the defendant or his participation[,]” court granted habeas relief, deeming such evidence “potentially powerful exculpation”); United States v. Mansker, 240 F. Supp. 2d 902, 912 (N.D. Iowa 2003) (where nondisclosed interview reports contained statements of witnesses listing their drug suppliers and customers but notably failed to identify defendant, court excluded three government witnesses from testifying as sanction); United States v. Berchtold, No. 1:21-cr-39, 2024 WL 2834056, at *6 (W.D. Pa, June 3, 2024) (court recognized in health care fraud prosecution that “if a PT or PTA stated, or plainly suggested, that no one in the billing department instructed them how to document treatment services or told them what billing codes to use, that information would be favorable to Berchtold and should be produced”).

29. Requests for negative exculpatory information are particularly important in two instances: (1) when the government’s case relies on eyewitness testimony; (2) when defense rests to any degree on lack of knowledge.

30. When applicable local rules distinguish between core Brady and impeachment material, counsel may find success highlighting that fact.