Government’s Duty to Disclose Witness Statements


Every criminal defendant needs to know who has given a statement in the case and the information that has been stated. The Jencks Act outlines the Government’s duty to disclose witness statements. The act provides that, upon a motion by the defendant, the Government is required to disclose a witness’s prior statements that are in the Government’s possession at the time the request is made.

In order for the Government to be compelled to disclose a witness’s prior statements, the statements must relate to the subject matter of the direct testimony of the witness. Under the Jencks Act, the Government has a duty to preserve all statements that are required to be produced. The Government should never destroy any statements before it is required to be destroyed, usually until after the culmination of the defendant’s case, including an appeal.

Applicability of the Jencks Act

The Jencks Act applies in the following situations:

  • At preliminary proceedings.
  • At trial.
  • At a detention hearing.
  • At a suppression or sentencing hearing.

Requirement for Defendant to File a Motion

The defendant is technically required to file a motion for discovery of a witness’s prior statements before the Government’s obligation to disclose such information arises. The defendant should file his motion at the conclusion of the witness’s direct testimony. If the defendant fails to timely raise this issue, the defendant’s request for production of the witness’s prior statements is deemed waived.

Types of Statements the Government Must Disclose

The Government is required to disclose any type of oral or written prior statement made by a witness that relates directly to the witness’s testimony at the defendant’s trial. A statement may be more than a written statement signed by the witness. A statement may include:

  • A verbatim recording or transcription of a witness’s oral statements.
  • Any witness statement taken or recorded in front of a Grand Jury.
  • Other statements, such as the Government’s notes of a witness interview.

Issues of Concern with Respect to the Jencks Act

It is unclear whether the Government is required to disclose notes, summaries or reports made by government agents of an oral statement made by the witness. Depending upon the circumstances and the facts, the Government materials may qualify as statements that have been adopted by the witness.

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