Friday, October 9, 2009
A suspect is interrogated by law enforcement agents. During the interrogation, those agents take "rough notes." The suspect is later charged, and a trial date is set. The defendant thereafter requests an order requiring the government to preserve the rough notes and disclose them to him at least 2 weeks prior to trial. The government claims that the court should deny the motion because it doesn't plan to use the notes at trial. Should the court grant the motion? As the recent opinion of the United States District Court for the District of Connecticut in United States v. Jacobs, 2009 WL 2710233 (D. Conn. 2009), makes clear, some courts say "no," while some courts say, "yes," with courts in the Second Circuit falling into the latter category.
The facts in Jacobs were as stated above, with Dwayne Jacobs, a.k.a. "Stretch," being charged with two drug-related offenses. The District of Connecticut granted Jacobs motion for preservation and production, noting that in United States v. Ferguson, 478 F.Supp.2d 220 (D. Conn. 2007). it had found that while there is a circuit split on the issue, the Second Circuit has held that under Federal Rule of Criminal Procedure 16, upon the defendant's request, the government must disclose even rough notes which it does not intend to use at trial. According to the court in Ferguson, here is the basis of the split.
Upon a defendant's request, the government must disclose to the defendant the substance of any relevant oral statement made by the defendant, before or after arrest, in response to interrogation by a person the defendant knew was a government agent if the government intends to use the statement at trial.
But here's the thing: These courts don't consider Federal Rule of Criminal Procedure 16(a)(1)(B)(ii), which was added in 1991, and which provides that
Upon a defendant's request, the government must disclose to the defendant, and make available for inspection, copying, or photographing, all of the following:...
(ii) the portion of any written record containing the substance of any relevant oral statement made before or after arrest if the defendant made the statement in response to interrogation by a person the defendant knew was a government agent.
The Second Circuit and other courts rely upon this Rule to find that the government has a disclosure obligation in these situations. So, why do some courts ignore Federal Rule of Criminal Procedure 16(a)(1)(B)(ii)? After doing some research, I'm not sure that there is a good answer. The court in Ferguson did note that the Advisory Committee Note to the 1991 amendment could be read as covering or not covering rough notes which the government doesn't plan to use at trial, but, as far as I can tell, these courts aren't using the Note to decide not to apply Federal Rule of Criminal Procedure 16(a)(1)(B)(ii). Instead, they seem to just ignore it.