Discovery Practices
In an effort to address discovery concerns related to search warrants in criminal cases, this office has prescribed the following practices, to facilitate discovery to defendants of criminal search-warrant materials to which the defendants are entitled:
Where any defendant in a case has (or appears to have) standing to challenge the evidence arising from a criminal search warrant, the AUSA shall identify the search warrant to that defendant by its magistrate judge number and shall produce to that defendant a copy of the search warrant, with supporting application, affidavit and return, if unsealed. If the materials are sealed, the AUSA shall either promptly seek the unsealing of the materials, with subsequent production of them, or shall otherwise address the issue of the sealed papers, by seeking agreement with defense counsel, or by litigating a request for protective order.
Where production of search warrant materials is made to defendants with standing to challenge the search, ordinarily the AUSA should either furnish courtesy copies to other defendants in the case, or notify other defense counsel of the availability of the materials for their inspection and copying. An AUSA who considers that search warrant materials produced to one defendant in a case should not be provided to co-defendants should consult with his or her supervisor for guidance.
Where searches are effectuated by other means than a warrant, such as consent or warrantless searches, AUSAs likewise shall facilitate discovery so as to eliminate needless delays or litigation. For instance, a defendant’s statement of consent to a search is typically discoverable as a written or recorded statement by the defendant, or as an oral statement made by a defendant in response to government interrogation; the AUSA should produce prompt discovery of the same. Fruits of searches are typically discoverable, pursuant to the Standing Discovery Order, as ". . . tangible objects . . . material to the preparation of the defendant’s defense, or which the government intends to use as evidence . . . or which were obtained from or belonging to the defendant." Where discovery is called for, it should be made promptly and clearly.
Where an AUSA has a question whether discovery is called for, including standing and third-party consent issues, guidance should be sought from the AUSA’s supervisor, both to ensure substantive correctness and district-wide uniformity in practice.
Any questions about these practices may be addressed to the Chief of the Criminal Division.
UNITED STATES ATTORNEY