Court rulings limit pre‑trial discovery of privileged records and witness statements under the Jenks Act

Page 39 of 78 2007 Utah L. Rev. 861, *915 evidence, the court reasoned. 327 Similarly, a Maryland appellate court, in Goldsmith v. State, denied a defendant's attempt to obtain access to a witness's psychiatric record. *°> After examining the relevant authorities, the court explained: "We find no common law, court rule, statutory or constitutional requirement that a defendant be permitted pretrial discovery of privileged records held by a third party." 324 Thus, crime victims (and third parties holding information about crime victims) will only rarely - if ever - have information a defendant is constitutionally entitled to examine. Because a defendant has no constitutional right to discovery, any such claim must rest on a statute. Yet the federal statutes, if anything, cut against broad discovery claims. The Jencks Act, 37° for example, restricts access to statements by [*916] government witnesses. 37° It specifically mandates that only after a government witness testifies on direct examination shall the statement of the witness be the subject of discovery. 32” The Jencks Act does not even allow access to all statements - a witness statement need only be produced if the statement "relates to the subject matter "as to which the witness has testified" not if it merely "relates to the subject matter "at issue in [the] case." 378 Even then, only a "substantially verbatim recital of an ont oral statement made by said witness to an agent™ is discoverable under the Jencks Act. 32? Although the Act was meant to preserve defendants’ right to access information that might aid in impeaching government witnesses at trial, "the legislative history expresses a much greater concern with limiting the application of the Jencks decision so that it would not hamper the workings of law enforcement by forcing wholesale disclosure of government materials and files." 33° The Jencks Act also bars any pretrial disclosure of witness statements. "Congress provided for discovery of statements only after the witness has testified, out of concern for witness intimidation, subornation of perjury, and other threats to the integrity of the trial process." 73! Courts have held true to this congressional determination, blocking defense efforts to obtain pretrial discovery about government witnesses. For example, in United States v. Coppa, the Second Circuit overturned the district court's approval of a scheduling order requiring the government to identify its witnesses in advance of trial. +3? The district court, "mindful of [the Act's] concern" for witness safety, had allowed the government to file ex parte motions delaying discovery of the witnesses' identity where such disclosure would pose a threat to the witnesses’ lives or safety. 777 The Second Circuit, however, found this protection insufficient to meet the witness-protective goals of the Jencks Act. Specifically, the 316 Id. at 946. 317 Td. 318 Tq. 319 Id. at 947. The Seventh Circuit also noted that the Wisconsin Supreme Court had reached a contrary conclusion, relying on state law grounds. Jd. at 946 n.5. The Wisconsin decisions do not offer a principled reason for extending Ritchie to private records and should not be regarded as persuasive authority here. See State v. Shiffra, 499 N.W.2d 719, 722 (Wis. Ct. App. 1993) (concluding that the issue of application of Ritchie to private records had already been decided in State v. S.H.); State v. S.H., 465 N.W.2d 238, 241 (Wis. Ct. App. 1999) (applying Ritchie to private records without any discussion of the issue). 320 Hach, 162 F.3d at 947. Other courts have reached the same result. See, e.g., United States v. Hall, 171 F.3d 1133, 1145 (8th Cir. 1999) (upholding decision not to compel disclosure of witness medical and psychiatric records: "the government has no obligation to obtain for a defendant records that it does not already have in its possession or control"); State ex rel. Romley v. Superior Court, 836 P.2d 445, 452 (Ariz. Ct. App. 1992) ("Brady emphasizes suppression of evidence by the prosecution, but does not require the victim to cooperate with the defense [to produce medical records held by the victim]."). 321 59 F.3d 750, 755-56 (8th Cir. 1995). 322 Iq. 323 651 A.2d 866, 868, 877 (Md. 1995). 324 Id. at 873. 325 18 U.S.C. § 3500 (2006). 326 Td. § 3500(a). DAVID SCHOEN HOUSE_OVERSIGHT_017674