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Jencks Discovery

The Jencks Act stipulates that once a witnesses summoned by the Federal Government has testified in a criminal prosecution, the government must provide any statements of the witness to the defense for the purpose of cross-examination.[i]  The purpose of the Jencks Act is to enable the defense to impeach a government witness by bringing any discrepancies between the Jencks material and the witness’s testimony to the attention of the finder of fact.[ii]

The Jencks Act is applicable only to criminal prosecutions.  However, the Act has been used by many administrative agencies in the interests of justice and fair play.  Thus, the rules pertaining to the Jencks Act have been incorporated into administrative agency regulations requesting witness testimony during a hearing.

Provisions of the Jencks Act apply in noncriminal proceedings such as administrative hearings where fundamentals of due process and fair play are tantamount.[iii]  For instance, the National Labor Relations Board (NLRB) rules have incorporated the Jencks Act.[iv]  Thus, courts have held that even if the NLRB proceedings are of a civil nature, an employer was entitled to discovery of statements of witnesses who the board intended to examine at a contempt hearing on cease and desist order.[v]

A party cannot, however, request a fresh hearing on the ground of an administrative agency’s failure to disclose Jencks Act material if the party has independent access to the information.  The Jencks Act does not require the disclosure of the entire witness testimony.  Instead, only documents overlapping with the subject matter of the testimony and thus potentially containing discrepancies need to be disclosed.[vi]  Courts have incorporated a harmless-error standard regarding the disclosure of the Jencks materials.

Many courts have held harmless the failure to order disclosure of Jencks material where “the information sought merely duplicates matter already in the defendant’s possession.” [vii]

Courts strictly construe the harmless-error standard to Jencks Act violations because holding an error harmless requires courts to speculate whether Jencks material could have been used effectively in defense of the charge.  However, “the Jencks Act does not contemplate automatic sanctions” for any violation.[viii]

[i] 18 USCS § 3500

[ii] United States v. Prieto, 505 F.2d 8, 11 (5th Cir. 1974)

[iii] Saunders v. District of Columbia, 263 A.2d 58 (D.C. 1970)

[iv] 29 CFR 102.118

[v] NLRB v. Schill Steel Products, Inc., 408 F.2d 803 (5th Cir.-OLD 1969)

[vi] Norinsberg Corp. v. United States Dep’t of Agric., 47 F.3d 1224, 1229 (D.C. Cir. 1995)

[vii] United States v. Pepe, 747 F.2d 632, 657 (11th Cir. 1984); United States v. Rivero, 554 F.2d 213 (5th Cir. 1977).

[viii] United States v. Lam Kwong-Wah, 924 F.2d 298 (D.C. Cir. 1991)

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