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Judicial Review of Disputed Jencks Act Materials

Upon a motion by the defendant, the Jencks Act requires the Government to disclose a witness’s prior statement directly relating to the witness’s direct testimony. It is also required that the Government must be in possession of the prior statement. There must be a direct link between the prior statement requested and the witness’s direct testimony. The defendant should file his or her motion after the witness testifies on direct examination. The trial court is precluded from ordering the Government to disclose the witness’s prior statement prior to trial. The Jencks Act specifically requires disclosure of the witness’s statement after the witness has testified. The Government may on its own volition disclose the witness’ prior statement to the defendant before formally requested to do so.

Dispute Regarding Jencks Act Materials

If a dispute arises with respect to disclosure of Jencks materials, judicial review is necessary. The trial court may be required to conduct a review of the materials. The trial court may also be required to take more extrinsic evidence to determine whether the requested materials fall under the guise of the Jencks Act. The Act itself requires the trial court to conduct an in camera or private review of the materials requested if the Government claims that any prior witness statement ordered to be produced would not relate to the witness’s direct testimony.

Judicial Standard

The defendant’s allegation that a violation of the Jencks Act has occurred should be viewed under the harmless error standard. The harmless error standard is basically whether there is a reasonable probability if the evidence requested would have been disclosed; the outcome of the defendant’s trial would have been different. If the outcome would not have been different, then harmless error may have resulted from the Government’s failure to disclose the witness’s prior statement. The harmless error analysis should hinge on the significance of the undisclosed statements to the defendant in the context of the other material available to impeach the witness’s credibility following the direct testimony of the witness.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.


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