In the United States, the Jencks Act () requires the prosecutor to produce a verbatim statement or report made by a government witness or prospective government witness (other than the defendant), but only after the witness has testified.
Jencks material is evidence that is used in the course of a federal criminal prosecution in the United States. It usually consists of documents relied upon by government witnesses who testify at trial. The material is described as inculpatory, favoring the United States government's prosecution of a criminal defendant.
The Jencks Act also covers other documents related to the testimony, or relied upon by government witnesses at trial. Typically, the material may consist of police notes, memoranda, reports, summaries, letters, related to an indictment or verbatim transcripts used by government agents or employees to testify at trial. This also includes a witness's grand jury testimony, if the witness testified at trial.
After the government's witness testifies, the court must, upon motion of the defendant, order the government to produce any statement of the witness in the government's possession relating to the subject matter as to which the witness testified. The court's denial of such a motion by a defendant is reversible error, although the court need not order the disclosure sua sponte. The usual remedy for failure of the government to produce the documents is a mistrial and dismissal of criminal charges against the defendant.
Overview
The Jencks Act was enacted by the United States Congress in response to the 1957 Supreme Court decision in Jencks v. United States, in which the Court established various rules for the availability and production of statements of prosecution witnesses in federal criminal trials.
Clinton Jencks, born in Colorado Springs, Colorado in 1918, was a labor organizer in New Mexico. In 1954, he was convicted of lying about being a member of the Communist Party of the United States. During his trial, the government refused to produce documents relied upon by prosecution witnesses who were FBI informants, a move that prompted the passage of the act.
Clinton Jencks starred in the 1954 movie Salt of the Earth which was a dramatized version of his struggles organizing labor.
The Jencks Act
By the Act, Congress exercised its power to define the rules that should govern this particular area in the trial of criminal cases instead of leaving the matter of lawmaking to the courts. The Act, and not the Supreme Court decision in the Jencks case, governs the production of statements of government witnesses in a federal criminal trial. The Jencks Act is constitutional as an exercise of congressional power to prescribe rules of procedure for the federal courts. In some instances however, the statute may be overridden by an accused's constitutional right to disclosure of exculpatory evidence.
The Jencks Act governs production of statements and reports of prosecution witnesses during federal criminal trials. The Act provides that in any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a government witness or prospective government witness (other than the defendant) shall be the subject of subpoena, discovery or inspection until the witness called by the United States has testified on direct examination in the trial of the case. After testimony of the witness, called by the government on direct examination, the court must, on motion of the defendant, order the United States to produce any statement of the witness in the possession of the government. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.
Definition
Under the Jencks Act, a "statement" of a prosecution witness is:
A written statement made by the witness and signed or otherwise adopted or approved by him; A stenographic, mechanical, electrical or other recording, or a transcription of it, which is substantially verbatim recital of an oral statement made by the witness to an agent of the Government and recorded contemporaneously with the making of such oral statement; or A statement, however taken or recorded, or a transcription of it, made by the witness to a grand jury.
If the government does not deliver a witness's Jencks statement to the defendant, the court may strike the witness's testimony or declare a mistrial.