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Card v. United States6/28/2001
a tardy disclosure" but rather to "a complete failure to disclose").
On the other hand, the Jencks Act relates to statements made by government witnesses, regardless of their exculpatory nature or value as impeachment material.
The Jencks Act imposes an affirmative duty upon the government to preserve statements of its witnesses and, on motion of the defendant, to disclose and produce those statements. The Act defines "statement" as either "a written statement made by witness and signed or otherwise adopted or approved by [the witness]" or a "recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by witness and recorded contemporaneously with the making of oral statement." McGriff v. United States, 705 A.2d 282, 287 (D.C. 1997) (quoting 18 U.S.C. ยง 3500(e)(1) & (2)), cert. denied, 523 U.S. 1086 (1998).
A violation of this act will not result in automatic sanctions; rather, "the administration of the Jencks Act must be entrusted to the `good sense and experience' of the trial judges subject to `appropriately limited review of appellate courts.'" Id. (quoting United States v. Augenblick, 393 U.S. 348, 355(1969)) (other internal quotations and citations omitted). "Even though the Jencks Act provides for sanctions when the statement of a witness is not produced, the choice of a sanction is entirely within the trial court's discretion, as is the decision whether to impose any sanction at all. We will not reverse a trial court ruling under the Jencks Act unless that discretion has been abused." Id.
1. Delayed Disclosure
Over the term of the lengthy trial, appellants raised numerous claims under these doctrines. The trial court carefully examined each claimed violation, and, where necessary, took steps to either sanction the prosecution or rectify the alleged inequity. On more than several occasions, the trial court held hearings to determine the extent of any violations, and whether or not sanctions would follow. On two occasions, the trial court sanctioned the prosecutor for discovery violations and informed the jury of the sanctions and the reasons behind them -- namely, that the prosecutor had failed to disclose evidence as required by law. In the relatively rare instances where the trial court ruled that alleged Brady or Giglio material need not be disclosed, appellants were nevertheless not prejudiced because the jury was in fact apprised of claimed exculpations and the witnesses' motives to lie. Although much of the material requested by the appellants was not disclosed initially, the majority of the requested material was turned over to appellants during trial. More importantly, appellants were able to employ those truantly disclosed materials in their cross-examinations of the relevant witnesses. Taken togther, these factors rebut the necessary demonstration that appellants were prejudiced, or that the court abused its discretion. Looking at the claims of abuse in this light, we find no reversible error.
Of the numerous claimed violations, the majority represented late disclosure of Brady and Giglio material. Appellants' counsel were able to exploit this material as part of their defense, and they are unable to show reversible prejudice arising from the tardy disclosure -- they point to no difference earlier disclosures would have made in their respective cases, with the exception of their opening arguments. Where, as here, the defense was able to eventually use Brady evidence to cross-examine government witnesses, the requisite prejudice is lacking, and we will not disturb the trial court's ruling. See Edelen v. United States, 627 A.2d 968, 972 (D.C. 1993) (" he trial judge w
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