Also known as: Fed. R. Crim. P. 26.2 · F.R.Crim.P. 26.2 · Jencks Act · Jencks rule · 18 U.S.C. § 3500
Written by attorneys — see sources below.
A rule of criminal procedure that requires production of a witness's prior statements to the opposing party after the witness testifies on direct examination. The rule applies at trial and at specified hearings including suppression hearings and detention hearings. A statement includes a written statement the witness signs or adopts, a substantially verbatim contemporaneous recording of the witness's oral statement, or grand jury testimony.
Ravi Reddy testified on direct about instructions he gave to subordinates regarding document handling. Defense counsel moved for production of his prior written statement to prosecutors. The court ordered delivery of the entire statement because it related to the subject matter of his testimony.
Ronald Reed testified about warnings he issued concerning regulatory violations. The government produced audit reports containing both related entries and unrelated technical logs from other facilities. The court conducted an in camera inspection and ordered production of only the portions relating to Reed's testimony.
Riley Rivera testified on direct about falsified driver logs. The government refused to produce her prior interview notes after a court order. The court struck her testimony because the government failed to comply with the production requirement.
Ruby Rivera, a law enforcement officer, testified at a suppression hearing. Defense counsel moved for production of her prior statement under the rule. The court ordered production because the rule applies at suppression hearings and treats the officer as a government witness.
Petitioners Alderman and Alderisio, along with Ruby Kolod (now deceased), were convicted in federal court of conspiring to transmit murderous threats in interstate commerce under 18 U.S.C. §§ 371 and 875(c). Their convictions were affirmed by the Tenth Circuit in 1967, and the Supreme Court initially denied certiorari. After denial, the petitioners alleged in a rehearing petition that Alderisio's Chicago business premises had been subjected to government electronic surveillance. The government responded by acknowledging that Alderisio's conversations had been overheard through unlawful eavesdropping. Petitioners Ivanov and Butenko were convicted in separate proceedings of conspiring to transmit national defense information to the Soviet Union under 18 U.S.C. §§ 794(a) and (c) and related charges under 18 U.S.C. § 951. The Third Circuit affirmed most convictions. Following the Alderman rehearing developments, certiorari was granted in Ivanov and Butenko on parallel questions concerning surveillance. After the convictions were affirmed and while the cases were pending, it was revealed that the United States had engaged in electronic surveillance that might have violated Fourth Amendment rights and tainted the convictions. The Supreme Court vacated the judgments and remanded each case to the District Court for adjudication of whether any government evidence supporting the convictions was the product of illegal surveillance. The government moved for modification of the remand order, proposing that surveillance records first undergo in camera inspection by the trial judge, who would disclose to petitioners and counsel only those materials found arguably relevant to the prosecution. Petitioners opposed the in camera procedure and sought full disclosure of all surveillance records to which they claimed standing. The government maintained that none of the overheard conversations were arguably relevant to the prosecutions and that disclosure of irrelevant conversations would endanger third parties or national security. The Supreme Court restored the cases for reargument specifically on the disclosure issue and the question of standing to object to the fruits of illegal surveillance.
Rina Rahman testified about investment committee discussions. Defense counsel requested her grand jury testimony relating to the same topics. The court ordered production of the grand jury transcript because it qualified as a statement relating to her direct testimony.
Robert Rivera testified about phone calls directing falsification of records. Defense counsel sought production of contemporaneous voicemails and text screenshots he had provided to agents. The court ordered production because the recordings constituted substantially verbatim recitals of his oral statements.
After a witness other than the defendant testifies on direct examination, the opposing party may move for production of any statement in the government's possession that relates to the subject matter of the testimony. The court must order delivery of the entire statement if it relates to that subject matter.
Supporting sources
…setting, because defendants’ chief source of information about grand jury proceedings is governmental disclosures under the Jencks Act, 18 U. S. C. §3500, which do not occur until trial is underway. The fact that a prosecutor knows that a Rule 6 violation is unlikely to be discovered gives the Rule little enough bite. To…
…had been made to O'Connor or Mitchell. In apparent reply to a request in the motion's ninth paragraph for "[c]opies of all Jencks Act material," the Government produced a series of affidavits that O'Connor and Mitchell had signed between April 12 and May 4, 1977, while the undercover investigation was in progress.…
…and do not fall within the scope of the Brady rule but are dealt with elsewhere in the Federal Rules of Criminal Procedure, 18 U.S.C. § 3500
…of evidence. The district court also noted that the government had indicated it would “turn over at the appropriate time any Jencks Act or Brady materials.” The defendants now argue that the district court erred in denying their motion. They claim that “
A statement includes a written statement the witness makes and signs or adopts, a substantially verbatim contemporaneously recorded recital of the witness's oral statement, or the witness's grand jury testimony. Draft reports the witness helped prepare may qualify if the witness adopted them.
Supporting sources
If the producing party claims the statement contains privileged or unrelated information, the court must inspect the statement in camera, excise the unrelated or privileged portions, and order delivery of the remainder. The excised portions must be preserved under seal if the defendant objects.
Supporting sources
Yes. The rule applies at suppression hearings, preliminary hearings, detention hearings, and sentencing hearings unless the court finds good cause to rule otherwise in a particular case.
Supporting sources
If the government disobeys a production order, the court must strike the witness's testimony. If justice so requires, the court may declare a mistrial.
Supporting sources