DOJ Issues Guidelines for Prosecutors Regarding Criminal Discovery

Howard Weiner — Thu, 21 Jan 2010 23:56:23 +0000

Last year, the Department of Justice assembled a working group consisting of senior prosecutors, law enforcement, and information technology professionals to assess the Department’s policies and practices related to discovery. On January 4, 2010, the Deputy Attorney General issued three memos regarding criminal discovery practices, including one which specifically provides guidance for providing discovery in criminal prosecutions.

Attorney General Eric Holder stated, “The Department of Justice’s responsibility is not just to win cases, but to do justice. Along with the increased training for prosecutors we have already instituted, these new guidelines will ensure that we strive to meet that standard every day and in every case.”

The Guidelines are being released in the wake of several recent cases which have been dismissed based upon prosecutorial misconduct. These include:

- U.S. v. Stein, et al. (Indictments against former KPMG partners dismissed based upon the government’s violation of their right to counsel);

- U.S. v. Ted Stevens (Indictment against former Senator dismissed due to government’s failure to turn over potentially exculpatory evidence to the defense); and

- U.S. v. Slough et al. (Indictments against five former Blackwater security guards for shootings that left 17 civilians dead dismissed based upon, “a reckless violation of defendants’ civil rights” where, among other things, prosecutors withheld, “substantial exculpatory evidence” from the grand jury and presented, “distorted versions” of witnesses’ testimony.

The memos are available here:

• Issuance of Guidance and Summary of Actions Taken in Response to the Report of the Department of Justice Criminal Discovery and Case Management Working Group

• Requirement for Office Discovery Policies in Criminal Matters

• Guidance for Prosecutors Regarding Criminal Discovery

Chemists Must Testify, Supreme Court Says

Howard Weiner — Mon, 21 Sep 2009 02:28:23 +0000

A lab chemist must be called to testify in order to admit a lab analysis as evidence at trial, the Supreme Court recently held in Melendez-Diaz v. Massachusetts, 07-591 (June 22, 2009). This case effectively ends the government’s routine practice of entering into evidence one sided, conclusory reports prepared by government lab technicians for the sole purpose of trial, which essentially allowed the prosecution to present its some of its strongest evidence without allowing a defendant to conduct any cross-examination. In the case of Melendez-Diaz, the report in question contained no information about the qualifications or experience of the analyst who conducted the testing, the identity of the testing methods used to arrive at the analyst’s conclusions (and accompanying error rates), or whether any record-keeping or storage measures had been taken to preserve the integrity of the items for testing, among other things, which the defendant should have been able to cross examine the chemist who authored the report about. To admit the report without the testimony of the chemist violated the defendant’s right of confrontation, affirmed by the Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004).

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DOJ Issues Guidelines for Prosecutors Regarding Criminal Discovery

Chemists Must Testify, Supreme Court Says