Can I Get A Witness?: Second Circuit Finds Hearsay Declarants Not Covered By Jencks Act

18 U.S.C. Section 3500(b), part of the Jencks Act, provides that

After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.

Meanwhile, Federal Rule of Evidence 801(d)(2)(E) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

And, Federal Rule of Evidence 806 provides that

When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

So, let's say that two defendants have several alleged co-conspirators. And let's say that that the prosecution does not plan to call these alleged co-conspirators as witnesses at trial but does plan to introduce their statements though other witnesses as co-conspirator admissions. Are the statements of these alleged co-conspirators covered by the Jencks Act because Rule 806 treats such declarants as witnesses? According to the recent opinion of the Second Circuit in United States v. Shyne, 2010 WL 3035519 (2nd Cir. 2010), the answer is "no."

In Shyne, the facts were as stated above, with the prosecution claiming that the alleged co-conspirators were not witnesses and thus not covered by the Jencks Act. Thus, the prosecution

provided defense counsel a three page letter that detailed what the district court characterized as impeachment material for those five coconspirators. The government did not, however, turn over to defense counsel a comprehensive set of notes from its proffer sessions with the non-testifying co-conspirators.

After they were convicted, the defendants appealed, claiming, inter alia, that "because Rule 806 treats a declarant as if he is a testifying witness for the purposes of attacking his credibility, the declarant must also be considered a witness under the Jencks Act." The Second Circuit noted that this was an issue of first impression for it but also noted that the D.C. Circuit had rejected a similar argument, finding that "merely because one set of rules...makes two distinct items equivalent for some specific purpose, it does not follow that they are equivalent for all related purposes."

The Second Circuit agreed with this holding, concluding that

The defendants' argument that because a non-testifying declarant's statement comes into evidence against them somehow converts that declarant into the equivalent of a witness who has appeared and testified under oath is the proverbial comparison of apples to oranges. The production of materials in possession of the Government that a defendant may use to take advantage of the opportunity to impeach a declarant under Rule 806 and the Government's obligation to produce such materials of which its agents have knowledge do not have their roots in the Jencks Act. Rather they arise under due process obligations articulated in Brady and Giglio, obligations with which the Government complied by issuing its letter describing the declarants' various foibles including the fact that one of the declarants lied during his proffer session....Although, for impeachment purposes, Rule 806 treats a declarant speaking in furtherance of the conspiracy as if he were a witness, we do not believe that also means that a declarant whose statement is being repeated and a witness who gives live testimony are equal under the Jencks Act. To hold otherwise would be contrary to the express language of the Jencks Act which states that no disclosure is warranted until "said witness has testified on direct examination in the trial of the case."...Appellants are unable to point to any cases to the contrary.

-CM