Lesson #1: Don’t ever conduct a pre-indictment witness interview that fails to generate a 302 or similar report. In fact, don’t ever conduct a post-indictment witness interview that fails to generate a 302, unless it is a genuine testimony prep session. If exculpatory information is revealed during a testimony prep session, turn it over to the defense.
Lesson #2: Look to the exculpatory information and not the format, if any, in which it is memorialized. If a witness reveals exculpatory information and the only written record of it is contained in privileged attorney notes, you may not have to reveal the notes but you damn well better reveal the exculpatory information.
Lesson #3: In a white collar case, unless there are issues of witness intimidation, turn over all 302s to the defense before the trial. Yes, I know, most 302s do not constitute Jencks material, unless the agent who prepared them is testifying. But every 302 of a testifying witness contains potential Brady material. Do you really want to be worrying during trial whether a witness’ real time testimony is inconsistent with the information contained in his six previous 302s? Turn the stuff over and concentrate on winning your case. The federal criminal trial system is already heavily weighted in favor of the prosecution. If your case is so weak that you are afraid of turning over the 302s to the defense, maybe it is time to re-think your case.
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