December 17, 2018

December 14, 2018

Subscribe to Latest Legal News and Analysis

DOJ’s Blue Book Partially Unsealed

A judge recently unsealed portions of the Department of Justice’s criminal discovery manual that provides Department policy for investigating and prosecuting criminal cases. As the DC Circuit explained two years ago, “[i]t contains information and advice for prosecutors about conducting discovery in their cases, including guidance about the government’s various obligations to provide discovery to defendant.” It was developed in large part in response to the horribly flawed prosecution of the late Sen. Ted Stevens – a case in which the judge threw out the conviction because the federal prosecutors hid evidence from the defense team, including contradictory statements by a key witness.   

In response, the Department then created a “Federal Criminal Discovery Bluebook” that “comprehensively covers the law, policy, and practice of prosecutors’ disclosure obligations” under Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and other similar cases. Statement for the Record from the Department of Justice: Hearing on the Special Counsel’s Report Before on the Prosecution of Senator Ted Stevens Before the S. Comm. on the Judiciary, 112th Cong. 3 (2012). DOJ “distributed [the Blue Book] to prosecutors nationwide in 2011” and also made it “electronically available on the desktop of every federal prosecutor and paralegal.” Id. Following rejection of its FOIA request for the Blue Book, the National Association of Criminal Defense Lawyers (NACDL) filed the suit. The district court originally upheld DOJ’s refusal to make the Blue Book public. The DC Circuit largely upheld that decision but ordered the district court to examine the Blue Book to determine whether portions should be made public under FOIA. Last week, the District Court completed that review and unsealed portions.

The unsealed portions are only a fraction of entire 250 page Blue Book. Most of the unsealed portions are, as the district court fairly characterized, “broad statements of the government’s public discovery policies.” Nonetheless, the unsealed portions are useful in that they make clear that DOJ policy on the disclosure of exculpatory and impeachment material is broader than constitutional and case law. They also articulate prosecutors’ obligations with respect to discovery and producing impeachment information concerning law enforcement witnesses, which includes reviewing the witness’ personnel file. Thus, the unsealed portions provide helpful information to rely on when framing requests for exculpatory and impeachment material. They may also prove useful in those instances in which there are reasonable concerns that prosecutors have failed to produce discoverable material. Although DOJ disclaims that the book is authority that can be used by third-parties, it nevertheless establishes a standard against which prosecutors’ disclosures can be measured. Moreover, there may be circumstances in which the entire Blue Book may be produced in litigation as the federal court in Oregon in 2014 ordered DOJ to produce the Blue Book to defense counsel in relation to a motion filed by the defendant seeking a finding of bad faith (although the district court in NACDL litigation disagreed with that decision, it did so before it was partially reversed by the DC Circuit).

Copyright © 2018, Sheppard Mullin Richter & Hampton LLP.


About this Author

David T. Fischer, Sheppard Mullin, Government Contracts lawyer, Investigations attorney
Special Counsel

David T. Fischer is a special counsel in the Government Contracts, Investigations & International Trade Practice Group in the firm's Washington, D.C. office.

Mr. Fischer's practice focuses on representing individuals and companies in civil and regulatory government enforcement actions, including false claims act and antitrust matters. Mr. Fischer has represented both plaintiffs and defendants in these matters, including qui tam whistleblowers in False Claims Act matters, and has conducted internal investigations for national and...