The Department of Justice (DOJ) falls within the ambit of the federal government. It is responsible for the enforcement and administration of federal law. The prosecutors are United States Attorneys and members of the Office of the Attorney General.

The DOJ has both judicial and investigative elements, including many federal agencies, such as the FBI, the Drug Enforcement Administration (DEA) and the Department of Homeland Security (DHS).

The prosecutor in charge of cases will very often work with the investigating agencies for the crimes to be prosecuted. The DOJ covers investigations from both civil issues (such as child support issues and tort actions) and criminal matters (murders or federal drugs crimes, for example).

I. Gathering Evidence

The DOJ and its subsidiaries will be responsible for gathering evidence to prosecute a crime. Sometimes, this might involve searching the property. This will require a warrant issued by a judge. If the evidence leads to an arrest, it must be an arrest stemming from probable cause. Many times, the DOJ will obtain an arrest warrant to ensure the arrest conforms to the Constitutional requirements.

II. Grand Jury

After the agencies have gathered sufficient evidence, the prosecutor will evaluate the case to decide whether the case should be presented to the Federal Grand Jury who will determine whether or not to issue an indictment. An indictment means that there is enough evidence for a grand jury to believe that the person committed a crime, with the basic charges lodged against him or her. The evidence and testimony presented to the grand jury is secret, and so is the ultimate vote by the grand jury of whether or not to indict the suspect. In New York, all felony cases must be presented to the grand jury.

This requirement is true of the DOJ – all felony crimes must be submitted to the federal government. Just like the district attorney’s office in New York represents the state government in cases that arise under state law, the U.S. Attorney’s office represents the United States in federal cases, which arise from federal law. They do not represent individuals, and therefore members of the DOJ or the U.S. Attorney’s office cannot give civilians legal advice.

III. Initial Hearings

Once the grand jury has indicted the suspect, the defendant will proceed to the initial hearing. The defendant will then proceed to a hearing where he or she will hear the formal charges, enter a plea, and determine whether bail or bond is required for his or her release. The defendant should be appointed an attorney before the hearing.

IV. Witness Investigations

The DOJ can unilaterally decide if the target lied during the interview, and then, that target faces liability. If the DOJ believes the target, then they merely become a witness in the primary target’s case and receive some immunity or lowered sentence. Either way, most attorneys are uncomfortable with this arrangement because the DOJ then gets unfettered access to information while the client faces imprisonment.

Regardless, DOJ investigations usually involve multiple federal agencies, and should not be taken lightly. Whether you are a suspect, a target or a witness, it is always a good idea to seek legal counsel to determine the process, how to behave, and what your rights are. The DOJ has the full power of the federal government behind it, and it is not a good idea to test their efficiency.

V. Proffer Interviews

Notably, the DOJ does not just seek out evidence from suspects – sometimes targets or witnesses will also be required to speak to the DOJ or other agencies. Sometimes, the prosecutor might suggest for a witness or target to come in for a ‘proffer interview.’ These interviews require the target to give information to the DOJ, and they will not use the information against this person – only if the person is truthful.

Federal Prosecutions

In federal prosecutions, one of the key discovery mechanisms is the Jencks Act, 18 U.S.C. § 3500. 

The Jencks Act? – 18 U.S.C. § 3500 

The Jencks Act stems from the United States Supreme Court decision in Jencks v. United States, 353 U.S. 657 (1957).   

In light of the Supreme Court decision in Jencks, the United States Congress codified almost all major portions of the decision into federal statute 18 U.S.C. § 3500. 

What Does the Jencks Act Apply To? 

Basically, the Jencks Act applies to any witnesses who the government intends to call the trial (or actually calls at trial) and what statements of a government witness are required to be made available to a defendant in order for the defendant to have a fair trial. 

The Act makes it so that any prior statements made by the witness must be turned over to the defense at the commencement of trial or as soon as the government has decided to call that witness during the trial. 

Are There Any Problems with How the Jencks Act is Applied? 

One of the major problems with the Jenks Act is that it gives defense counsel very little time to investigate the allegations made by a government witness in a prior statement.   

This is because the materials are not handed over until the commencement of the trial. At that point, defense counsel should have fully prepared a strategy and began to execute the trial strategy. 

Why Does the Prosecution Withhold Jencks or “3500” Material? 

The reasoning originally used for the withholding of 3500 material until the commencement of trial operates on the assumption that defendants are likely to tamper with witnesses and encourage perjury based upon information learned from 3500 material.  

However, in a day in time where it is well known that all defendants that are placed on trial are not in fact guilty and that innocent individuals have been convicted after seemingly fair trials, it begs the question of whether maintaining this reasoning for withholding 3500 material until the commencement of trial is highly prejudicial and almost nonsensical. 

Why Would Withholding Jencks or “3500” Material be Prejudicial? 

For example, many defendants are offered guilty pleas based upon indictments which were presented to grand juries solely by the prosecution.   

During these grand jury hearings, the prosecution presents witnesses to testify before the grand jury. Based upon this witness testimony, the jury will decide whether to indict the individual.   

In this case, the jury would only have received a one-sided review of the evidence.   

This means that defense counsel has not had an opportunity to: 

  • investigate the witnesses’ background/criminal history; or 
  • assess the consistency and accuracy of the witness’s statement. 

What is Your Experience With Jencks or “3500” Material? 

In a number of cases that we’ve handledwe’ve found – as a general practice – that a lot of prosecutors tend to believe their witnesses antheir witness’s version of events and tend to overlook material facts that can unravel a witness’ story or their version of events.  

The issue is that defense counsel does not have an opportunity to test the truth and veracity of the witness’s statement until he or she is actually at trial with the defendant. 

Can You Give Us an Example? 

There was one particular federal case that we handled in the Southern District of New York.  What we learned when we did obtain the prior statements made by the cooperating witnesses was thatwhile each witness had a pretty consistent version of events when compared to other witnesses that the prosecution had listed as trial witnessesthe accounts were materially different and irreconcilable. 

While attempting to conduct a trial we ultimately had to request a postponement for a few days in order to hash out the reasons behind the governments presentation of witnesses with materially conflicting versions of events and which witness the government actually found most credible. 

Under the circumstances, in that particular case, our client was offered an opportunity to enter a plea – which is almost unheard of in the middle of a federal trial – or to proceed to trial with the possibility that the jury will focus on the material conflicts. 

What Should Be Done? 

Despite most states in the country having similar discovery statutes as it relates to the disclosure of prosecution witnesses prior statements and thosstates have revised their statutes to mandate that the discovery of 3500 material be turned over within between 15 and 30 days of the commencement of the prosecution in federal trials3500 still applies with its antiquated provisions. 

In shortuntil Congress decides to amend the 3500 statuesfederal trials in the United States will continue to be conducted where the government will withhold statements of government witnesses until a pretrial hearing is granted or a trial is actually commenced. 

What Can Defense Attorneys Do? 

In order to combat this imbalance, it is always important for defense attorneys to conduct extensive pretrial investigations and, most importantly, to encourage their clients to be as open and honest with them as possible.  This will allow them to discover any possible inconsistencies or inaccuracies in a witness’s statement prior to trial. 

By knowing what happened before going to trialwho allegedly saw what eventswhat vantage point they saw it from, all of this information is very advantageous to defense counsel when finally receiving 3500 material because by at that point usually there’s a wealth of information through which to filter the 3500 material and the large facts contained therein.