Can Prosecutors Avoid Creating Brady Material in FBI-302 Interview Memos? DOJ Guidance Is Not Enough (Part 2)

June 30, 2021

By Sara Kropf

In the last post, I explored whether bad-actor prosecutors and agents can avoid creating Brady material in interview memos. If an agent doesn’t take notes documenting exculpatory statements made by a witness in a criminal investigation, and those exculpatory statements do not make their way into the 302, then the government will have no clear obligation to disclose the 302 under Brady. It’s like the witness never said anything helpful to the defense at all.

In this post, I’ll describe the apparent lack of binding rules preventing this problem. That’s not an accident. DOJ may want the right thing, but it so far hasn’t mandated it.

302s Are Not Enough

In 1975, the D.C. Circuit decided a case called United States v. Harrison, 524 F.2d 421 (1975). There, the defendants were convicted of robbing a bank. The FBI interviewed several witnesses but did not preserve the agents’ handwritten notes. The government did disclose the 302s from those interviews. The court of appeals initially remanded the case for resolution of several questions, including “what is the FBI regulation on destruction of rough or raw notes?”

In this second appeal, the court considered what happened at the lower court. Ultimately, the evidence showed that the FBI had a policy of destroying handwritten notes after drafting the 302 interview memo. This was a problem.

As far as Brady goes, the Harrison court recognized the problem of permitting the 302 to be the definitive summary of a witness interview:

It seems too plain for argument that rough notes from any witness interview could prove to be Brady material. Whether or not the prosecution uses the witness at trial, the notes could contain substantive information or leads which would be of use to the defendants on the merits of the case. If the witness does testify, the notes might reveal a discrepancy between his testimony on the stand and his story at a time when the events were fresh in his mind. The discrepancy would obviously be important for use in impeaching the witness’ credibility. The possible importance of the rough notes for these purposes is not diminished in cases where the prosecutor turns over to the defense the 302 reports. The 302 reports contain the agent’s narrative account of the witness’s statement, prepared partly from the rough notes and partly from the agent’s recollection of the interview. Although the agents are trained to include all the pertinent information in the 302 report, there is clearly room for misunderstanding or outright error whenever there is a transfer of information in this manner. In the best of good faith, the statement as recorded in the 302 report may, to some degree at least, reflect the input of the agent. In such a situation, the information contained in the rough notes taken from the witness himself might be more credible and more favorable to the defendant’s position.

Id. at 427–28.

The opinion summarized the FBI’s efforts to ensure the accuracy of the 302s:

Other FBI regulations govern final preparation of the 302 report from the rough interview notes. In order to assure the accuracy of the reports, the regulations require that the interviewing agent dictate or prepare a draft 302 report within five working days; it must then be typed and returned to the agent within another five working days. The agent is required to proofread the typed version and compare it with his notes for accuracy. Once this process is completed, the agent initials the report, and, unless the notes fall within one of the categories of the preservation regulation set forth above, it is the practice then to destroy the notes, although no regulation specifically requires this. Every FBI agent who testified at the hearing on remand testified that he routinely destroyed the notes once the final 302 report was prepared and checked for accuracy. In addition, there was testimony at the hearing that new agents are carefully taught in training school just what materials must be retained, and instructors stress that a 302 report must accurately and completely reflect the substance of the agent’s notes.

Id. at 425–26.

The court even recognized that “we cannot consider it beyond the bounds of possibility that a report be distorted because of overzealousness on the part of the agent preparing it, since preparation of the report and the decision whether or not to preserve the notes are entirely within the discretion of a single agent acting alone.” Id. at 430.

Ultimately, the D.C. Circuit held that the FBI had to keep handwritten notes but refused to overturn the convictions.

DOJ Guidance Says All the Right Things But Mandates Nothing

In 2010, Deputy Attorney General David Ogden released the “Ogden Memo” about criminal discovery obligations. It directly addresses some of these issues, though doesn’t mandate that agents write down everything an agent says in an interview. The Ogden Memo refers to Giglio information, which is Brady material that could be used to impeach a government witness.

It has a section about “Information Obtained in Witness Interviews.” That section makes clear that there is no legal requirement that agents memorialize witness statements but says agents “should” do so. It then says that “[a]gent and prosecutor notes and original recordings should be preserved, and prosecutors should confirm with agents that substantive interviews should be memorialized.”

It suggests that the “the prosecutor and agent should discuss note-taking responsibilities and memorialization before the interview begins (unless the prosecutor and the agent have established an understanding through prior course of dealing).” The Ogden Memo also makes clear that witness statements “will vary during the course of an interview or investigation” and mandates that “[m]aterial variances in a witness’s statements should be memorialized, even if they are within the same interview, and they should be provided to the defense as Giglio information.”

This requirement is important because, in theory, an agent should not write down only the witness statements that support the government’s theory of liability and not write down those that contradict it.

Finally, the Ogden Memo states that “[a]gent notes should be reviewed if there is a reason to believe that the notes are materially different from the memorandum, if a written memorandum was not prepared, if the precise words used by the witness are significant, or if the witness disputes the agent’s account of the interview.” Of course, if the agent tells the prosecutor that her notes simply reflect what is in the 302, will the prosecutor take the time to review the notes—in the midst of trial preparation or the laborious process of gathering Rule 16 discovery? It’s impossible to know.

The Ogden Memo is guidance to DOJ attorneys. But it’s important to realize that it is not the law, and defendants do not have a private right of action to enforce its provisions. Plus, the memo is written carefully, using language that the agent or prosecutor “should” do things, not that they “must” do things. So, nothing in it is binding or enforceable on anyone.

Where Are We?

This post is not an academic exercise. There are very real problems with the witness interview process. Witness interview memos are a critical element of a person’s ability to defend himself from criminal charges. Obtaining a copy of those memos as part of the Brady disclosures is likewise a critical part of a defense lawyer’s effort to defend someone in court.

DOJ should require its agents and prosecutors to document everything a witness says in an interview. Everything—not just the “good stuff.” Congress should consider a law to require it; without a legal requirement to do so, it’s too easy for an agent acting in bad faith to avoid creating Brady material, to put her thumb on the scale for the government.

Beyond the narrow Brady issue, there are bigger problems here. Think about it:

In a civil case, when no one’s liberty is at stake, witnesses can be interviewed (deposed) under oath by any party. A court reporter is there. The witness and the participants have the ability to review and offer corrections to the transcript. The deposition can be recorded by video if any party requests it.

In a criminal case, when someone can spend years in jail, no such protections exist. No court reporter, no video camera, no one else present from the other side, no chance to review or correct the witness interview. In fact, there’s a very good chance that the defense may never see the witness interview memo at all.

We need to fix this problem. The first step is for DOJ to require that prosecutors turn over every 302 in a case to the defendant (barring an identified safety or national security interest). That’s only the first step, but it’s a start.

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