Reciprocal Discovery for Defense Lawyers – The Dangers of Rule 26.2 or “Reverse Jencks”

October 18, 2022

By Sara Kropf

The Department of Justice increasingly makes aggressive requests for reciprocal discovery from defendants in white-collar criminal cases. Most defense lawyers think only of Rule 16’s provisions for reciprocal discovery. But Rule 26.2 provides a second, dangerous, avenue of discovery for the government into a defense lawyer’s strategy, particularly if you have a judge that seeks to give the government every possible advantage of at trial.

I wrote about reciprocal discovery back in 2010 (warning: paywall) for the National Association of Criminal Defense Lawyers. Not much has been written about this topic since then, but I’ve seen the Department of Justice be increasingly aggressive in requesting it, so beware.

If you read no further in this post, please please please, for the love of Pete, read Rule 26.2. Know that it exists and understand its relationship to Rule 16.

This post will first describe the differences between Rule 16 and Rule 26.2 and then describe a few dangers of Rule 26.2.

Rule 16 Versus Rule 26.2

Rule 16 requires, upon the government’s request, that the defense disclose to the government documents that are (1) “within the defendant’s possession, custody, or control,” and (2) “the defendant intends to use the item in the defendant’s case-in-chief at trial.” It expressly excludes from disclosure “a statement made to the defendant, or the defendant’s attorney or agent, by: (i) the defendant; (ii) a government or defense witness; or (iii) a prospective government or defense witness.”

Rule 26.2(a) provides: “After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, must order an attorney for the government or the defendant and the defendant’s attorney to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter of the witness’s testimony.”

Note that the definition of a witness “statement” in Rule 26.2 would include emails. It is defined as:

“Statement” Defined. As used in this rule, a witness’s “statement” means:

(1) a written statement that the witness makes and signs, or otherwise adopts or approves;

(2) a substantially verbatim, contemporaneously recorded recital of the witness’s oral statement that is contained in any recording or any transcription of a recording; or

(3) the witness’s statement to a grand jury, however taken or recorded, or a transcription of such a statement.

Rule 16 and Rule 26.2 differ in two crucial ways.

First, Rule 26.2 cannot be triggered by a government request to the defense before trial. Rather, it requires the court to order a party’s compliance to it.

Second, Rule 26.2 mandates disclosure of any statement of a witness only if the witness “testifie[s]” in the party’s case-in-chief, as opposed to Rule 16’s requirement to disclose documents that the defense “intends to use” in its case-in-chief. Compare Fed. Crim. R. 16(b)(1)(a)(iii) (requiring production of documents if “the defendant intends to use the item in the defendant’s case-in-chief at trial”), with Fed. Crim. R. 26.2 (a) (providing that court must order disclosure “[a]fter a witness other than the defendant has testified on direct examination”).

Rule 26.2 contains one other important limitation: it requires disclosure by the party who called the witness to testify, not disclosure by the party who will cross-examine the witness. Fed. Crim. R. 26.2(a) (requiring disclosure only “on motion of a party who did not call the witness”). Rule 26.2 therefore should not (in theory) require the defense to disclose statements by a witness that it intends to use to cross-examine a government witness during the government’s case.

When the government demands witness statements under Rule 26.2, this is sometimes referred to as “reverse Jencks.”

Danger #1: Disclosure of Government Discovery Back to the Government?

in most white-collar criminal cases, the exhibits the defense uses at trial come from the government’s own discovery. Sophisticated databases allow for sifting through hundreds of thousands of emails using focused search terms in a few seconds. There are always some gems to be found in the government’s production—documents that the government (of course) never highlighted as Brady material.

Rule 26.2 requires a party disclose to the other side “any statement of the witness that is in their possession and that relates to the subject matter of the witness’s testimony.” In theory, this could be interpreted as requiring the defense to produce back to the government a list of documents that the defense plans to use in its case-in-chief, even if they are also in the government’s possession.

But I think most defense lawyers (and I count myself in this group) would say that it is not necessary or prudent to identify for the government any documents that the government already has in its possession. Be aware that an aggressive prosecutor may demand this type of disclosure and a judge who leans towards the government may grant such a motion.

Danger #2: A Government Witness Who May Also Be a Defense Witness

There are times when a witness on the government’s list may also be a potential defense witness and so the defense discloses that person on its witness list before trial. This creates a potential danger under Rule 26.2.

Your client’s former colleague client may have some damaging information to share, but she may also be able to provide important context for certain emails or meeting notes. In that circumstance, the defense choose to forego cross examination on a particular point and instead wait to elicit that testimony on direct examination in his own case (with the ability to re-direct) on some topics.

In some circumstances, defense counsel may use Rule 17(c) subpoenas to obtain emails and other communications by government witnesses that were not contained in the government’s discovery. Upon reviewing that material, defense counsel may realize that the witness maybe helpful to the defense case-in-chief to provide substantive testimony.

Also, the defense may need a government witness to testify in its case-in-chief simply to authenticate exhibits and lay a foundation for their admission. I’ve had a judge refuse to let me introduce an exhibit during cross examination because it was “beyond the scope” of the direct, thus forcing me to call that government witness in my case. This circumstance could expose you to a Rule 26.2 disclosure–instead of using an exhibit during cross (which does not require disclosure), you are now using it during a defense case-in-chief.

The danger is that if the defense puts a government witness on its own list for trial, then the government may request that the court order Rule 26.2 disclosure before trial. The judge may grant that motion because of a misguided sense of “fairness.” The judge may think that if it ordered the government to make an early Jencks disclosure before trial (when § 3500/Jencks does not require it), then it should also require the defense to make an early Rule 26.2 disclosure as well. More about the Jencks confusion below.

Be careful when you disclose a government witness as a defense witness. It may open you up to unexpected disclosure obligations.

Danger #3: When the Judge Thinks Impeachment Evidence Is Substantive Evidence

The defendant has no obligation to put on a case-in-chief. Since criminal cases do not have nearly the same open discovery process as civil cases (no depositions! no summary judgment filings! no requests for admission!), it’s nearly impossible from the defense side to plan all of a defense case before seeing how the government’s case play out at trial.

The best we can do from the defense side is to plan a vigorous cross examination of government witnesses. That generally means impeaching their testimony using contemporaneous emails or other documents, even if those documents were obtained outside of discovery from the government. But what about when that evidence has two purposes—to impeach the witness on the stand and to prove a defense in the case?

Reading Rule 26.2 literally, there is no need to disclose that evidence before trial because it is being offered as impeachment evidence during cross examination and not when the defense calls the witness at trial. But be aware that some judges may interpret impeachment evidence as substantive evidence, particularly if the defense seeks to offer impeachment exhibits into evidence. 

Danger #4: Judges Who Conflate Rule 26.2 with Jencks

Danger #3 leads to Danger #4: Judges may conflate the government’s Jencks obligations with the defense’s reciprocal discovery obligations under Rule 26.2.

The Jencks Act, 18 U.S.C. § 3500 applies only to require the government to produce a witness’ statements. It does not apply to the defense. However, by its statutory terms, the government need not produce Jencks material until “[a]fter a witness called by the United States has testified on direct examination.” Many district courts, though not all, require the government to produce Jencks material in advance of trial. This is likely because if such material is voluminous, the defense is entitled to a reasonable delay to review the material and such a delay is inconvenient during a jury trial on a busy court’s docket.

Some judges issue pre-trial orders that require Jencks disclosure by a date certain. However, a judge may later interpret that disclosure date as applying to the defense’s obligations under Rule 26.2, even though Rule 26.2 is separate from the Jencks Act. The Jencks Act, unlike Rule 26.2, does not apply to the defendant. But a judge who wants to be “fair” (see above) may say that this Jencks disclosure date applies to Rule 26.2 disclosure by the defense.

The Element of Surprise

What Rule 16 and Rule 26.2 fail to capture is the essential element of surprise. Surprise is usually the defendant’s only hope to prevail in a complex white-collar case: surprising the government witnesses with helpful emails that the agents did not find and about which the prosecutors did not prep the witness, and then extracting helpful admissions using those exhibits.

A judge who ignores the timing limitations of Rule 26.2 and instead requires pretrial disclosure of statements of witnesses by the defense may eliminate the element of surprise.

At a minimum, if the government seeks an order under Rule 26.2, defense counsel should request that it be permitted to delay production of Rule 26.2 material until the end of the government’s case-in-chief, to protect the element of surprise. See United States v. North, No. CRIM. 88-0080-02, 1989 WL 12031, at *1 (D.D.C. Jan. 23, 1989) (where government made motion for discovery under both Rule 16 and Rule 26.2, court issued order requiring that (a) Rule 16 discovery from the defense was due “immediately at the close of the government’s case-in-chief,” and (b) Rule 26.2 discovery from the defense was due “on the day the government rests its case-in-chief”).

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