May Prosecutors Bar Note Taking of Witness Interviews?
Consider this: In all the episodes of Perry Mason that you ever watched, Perry—the iconic cross-examiner—never, ever once gained one of his famous "You got me, I did it" case-ending admissions, by cross-examining from a prior witness statement given to him by (that constantly losing-prosecutor) Hamilton Burger. In fact, Perry seemed to never cross-examine at all from prior witness statements.
Why? Was it because the witness statements in Burger's cases never revealed anything worthy of cross-examination? Not likely. Was it because all of those episodes were taped before the Congress adopted Title 18 U.S. Code, Section 3500 directing prosecutors to turn over so-called "3500 material."1 Or before state courts, such as New York, adopted rules such as "Rosario," requiring prosecutors to turn over so-called "Rosario material," including prior statements of prosecution witnesses?2 Maybe.
Or, more pertinent to what follows here, was it simply because Burger directed the hapless Lieutenant Tragg to keep in his head everything (including exculpatory —so-called Brady3 or Giglio—material) he learned from potentially vulnerable witnesses and not commit it to writing, lest Perry pull it out of his hat in one of his moments which would result in another defeat for Burger and the People of California?
No question, most prosecutors are fair-minded and want to be sure that they convict only defendants whom they believe are truly guilty. That said, many prosecutors believe—and rightly so—that able defense lawyers can capably use prior witness statements to so undermine a prosecution case, that truly guilty people will end up acquitted.
Witness Accounts Change
The fact is that truth-telling witnesses will indeed remember probative events differently on different occasions. For example, one's recollection the second time around, say May 25, particularly after being refreshed by memory-enhancing memoranda, may be far more accurate than the first time around, on Jan. 2. Even the most honest prosecutor would hardly want to see a memorandum or notes of the Jan. 2 interview in the hands of an able defense lawyer who could, dramatically, use the memorandum or notes to skillfully poke holes in the witness' account thusly: "But didn't you say on January 2nd that three other people were present during the incident, whereas on May 25th you told the FBI (as you now do at trial), that it was just you and my client, the defendant, present? So, were you lying on January 2nd, or are you lying now?" Or, alternatively, "Is your recollection of the event better now than it was 12 months ago?"
Small wonder that the answering message on the voicemails of many prosecutors direct callers to not leave any substantive information in their message. Prosecutors would probably argue that their purpose is to ease the problems of discovery production which would require them to search the voicemail histories of all relevant prosecutors who might have received calls from witnesses on a case (even if they have since left the office for another job). Truth told, some also don't want to be burdened with prior inconsistent witness statements that may have to be produced to the defense.
Although there may not be much case law addressing it, it is one thing to direct lay or law enforcement telephone callers to not leave substantive messages on the prosecutor's voicemail, and quite another to direct police or other law enforcement agents present when they conduct prosecution interviews to simply put their pencils down during such interviews. After all, the prosecutor's obligations spawned by Brady or Giglio "requires" the prosecutor to turn over exculpatory or impeaching material, irrespective of whether it is reduced to writing.
If, for example, a witness in his prior statement said that the perpetrator had blond hair, whereas his trial prep account was that the "perp" had brown hair, the (likely) exculpatory nature of the inconsistency exists whether or not the blond hair account was reduced to writing by the prosecutor (or an attending law enforcement witness), or not. Meaning, the prosecutor would at least theoretically be obliged to turn over the existence of the statement either way. Still, one can easily understand why the prosecutor—full disclosure, myself included in my day—might prefer not to have to transmit a contemporaneous-to-the-inconsistency piece of paper directly into the hands of a skillful defense lawyer who could dramatically, even if with some degree of subtlety, suggest to the jury that he holds in his hand a document showing a serious inconsistency with the witness' current testimony.
Federal Case Law
But what law exists on this issue, given that no federal case law affirmatively obligates prosecutors or their witnesses to take notes?4 Interestingly, both the First and Second circuits have considered the problem with neither directly ruling on it, even though they both recognize the potential abuse implicated. In United States v. Houlihan,5 a drug racketeering case decided by the U.S. Court of Appeals for the First Circuit in 1996, the government agents who led the investigation instructed all but the most senior prosecutors to refrain from taking notes during pretrial interviews (although it would be the prosecutor giving the instruction). In affirming the district court's determination that the Jencks Act (Title 18, U.S. Code, Section 3500), did not impose an obligation on government agents to take notes during witness interviews, the circuit went on to say that it did not mean to imply that it endorsed the practice of not taking notes:
Eschewing tape recordings and ordering law enforcement agents not to take notes during pretrial interviews is risky business and not guaranteed to redound either to the sovereign's credit or to its benefit. By adopting a "what we don't create can't come back to haunt us" approach, prosecutors demean their primary mission: to see that justice is done. In more parochial terms, the government also loses the advantage of records that it may subsequently need to safeguard against witnesses changing their stories or to refresh recollections dimmed by the passage of time. By and large, the legitimate interests of law enforcement will be better served by using recording equipment and/or taking accurate notes than by playing hide-and-seek.6
The U.S. Court of Appeals for the Second Circuit, in its 2007 decision in United States v. Rodriguez,7 took a slightly different view, although it, too, declined to find a Brady, Giglio, Jencks Act or Sixth Amendment Confrontation Clause violation when the government deliberately refrained from note taking calculated to evade an obligation to turn over exculpatory or impeaching information to the defense. Rodriguez had actually equated the government's behavior with the "destruction of evidence."8
In following the First Circuit's ruling in Houlihan, and noting that Brady and Giglio9 obligate prosecutors in certain circumstances to disclose exculpatory and impeaching information, the Second Circuit noted that those cases "have not been generally construed to require the Government to make written notes to the defendant's benefit."10 The footnote to that comment, however, did leave the door slightly open in certain circumstances not present in Rodriguez: