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POLICY REGARDING DISCLOSURE OF EXCULPATORY AND

IMPEACHMENT INFORMATION [NEW SECTION] USAM section 9-5.001

U.S. Dept. of Justice

(

2006

)

at p.

This DOJ policy supplement to the US Attorneys' Manual "is intended to ensure timely disclosure of an

appropriate scope os exculpatory and impeachment information so as to ensure that trials are fair. The

policy, however, recognizes that other interests, such as witness security and national security are also

critically important..and that disclosure may be delayed or restricted (e.g. pursuant to the Classified

Information Procedures Act." Because disclosure of material exculpatory and impeachment evidence are

Constitutional obligations, Brady v Maryland and Goglio v. United States evidence must be disclosed

regardless of whether the defendant makes a request for such evidence. "While ordinarily, evidence tha

would not be admissible at trial need not be disclosed, this policy encourages prosecutors to err on the side

of disclosure if admissibility is a close question." … "It is the obligation of federal prosecutors, in preparing

for trial, to seek all exculpatory and impeachment information from all the members of the prosecution team

[including] federal, state and local law enforcement officers and other government officials participating in

the investigation and prosecution of the criminal case against defendant." (Kyles, 514 U.S. at 437.) This

policy "requires disclosure by prosecutors of information beyond that which is 'material' to guilt as

articulated in Kyles v. Whitley, 514 U.S. 419 (1995) and Strickler v. Greene, 527 U.S. 263, 280-81 (1999)."

… "A prosecutor must disclose information that is inconsistent with any element of any crime charged

against the defendant or that establishes a recognized affirmative defense, regardless of whether the

prosecutor believes such information will make the difference between conviction and acquittal." … "A

presecutor must disclose information that either casts a substantial doubt upon the accuracy of any

evidence -- including but not limited to witness testimony -- the prosecutor intends to rely on to prove an

elment of any crime charged, or might have a significant bearing on the admissibility of presecution evidence.

This information must be disclosed regardless of whether it is likely to make the difference between

conviction and acquittal of the defendant for a charged crime." … "Unlike the requirements of Brady and its

progency, which focus on evidence, the disclosure requirement of this section applies to information

regardless of whether the information subject to disclosure would itself constiture admissible evidence." If

several items of information when taken together have a cumulative impact, all such items must be

disclosed. … "Exculpatory information must be disclosed reasonably after it is discovered." Impeachment

information may be made at a time and in a manner consitent with Jencks Act, 18 U.S.C. section 3500.

Exculpatory or impeachment information casting doubt upon sentencing factors, but does not relate to

proof of guilt, must be disclosed no later that the court's initial presentence investigation. Supervisory

approval not to disclose impeachment information before trial or exculpatory information reasonably

promptly because of its classified nature must be noticed to defendant of the time and manner by which

disclosure of such information will be provided to defendant. Under this policy, the government's

disclosure will exceed its constitutional obligations.

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Wednesday, January 17, 2007

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