1. The Investigative Agency's Files: With respect to Department of Justice law
enforcement agencies, with limited exceptions, the prosecutor should be granted
access to the substantive case file and any other file or document the prosecutor
has reason to believe may contain discoverable information related to the matter
being prosecuted. Therefore, the prosecutor can personally review the file or
documents or may choose to request production of potentially discoverable
materials from the case agents. With respect to outside agencies, the prosecutor
should request access to files and/or production of all potentially discoverable
material. The investigative agency's entire investigative file, including documents
such as FBI Electronic Communications (ECs), inserts, emails, etc. should be
reviewed for discoverable information. If such information is contained in a
document that the agency deems to be an "internal" document such as an email,
an insert, an administrative document, or an EC, it may not be necessary to
produce the internal document, but it will be necessary to produce all of the
discoverable information contained in it. Prosecutors should also discuss with the
investigative agency whether files from other investigations or non-investigative
files such as confidential source files might contain discoverable information.
Those additional files or relevant portions thereof should also be reviewed as
necessary.
2. Confidential Informant (CI)/Witness (CW)/Human Source (CHS)/Source (CS)
Files: The credibility of cooperating witnesses or informants will always be at
issue if they testify during a trial. Therefore, prosecutors are entitled to access to
the agency file for each testifying CI, CW, CHS, or CS. Those files should be
reviewed for discoverable information and copies made of relevant portions for
discovery purposes. The entire informant/source file, not just the portion relating
to the current case, including all proffer, immunity, and other agreements,
validation assessments, payment information, and other potential witness
impeachment information should be included within this review.
If a prosecutor believes that the circumstances of the case warrant review of a
non-testifying source's file, the prosecutor should follow the agency's procedures
for requesting the review of such a file.
Prosecutors should take steps to protect non-discoverable, sensitive information
found within a CI, CW, CHS, or CS file. Further, prosecutors should consider
whether discovery obligations arising from the review of CI, CW, CHS, and CS
files may be fully discharged while better protecting government or witness
interests such as security or privacy via a summary letter to defense counsel rather
than producing the record in its entirety.
Prosecutors must always be mindful of security issues that may arise with respect
to disclosures from confidential source files. Prior to disclosure, prosecutors
should consult with the investigative agency to evaluate any such risks and to
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