Use this case when you want an evidentiary hearing on your Jencks request

Josue Lopez Ambrocio v. United States (decided October 1, 2015).

 

The players: Associate judges Thompson and Beckwith, Senior Judge King.  Opinion by Senior Judge King.  Jamison Koehler for Mr. Ambrocio.  Trial judge: Richard H. Ringell.  Reviewing judge: John Ramsey Johnson.

Facts:  Trial testimony in this DUI/leaving after colliding case established that the government’s key civilian witness had been interviewed by an unidentified police officer twice on the night of the incident.  The first interview was in person and the second interview was over the phone, and lasted for fifteen minutes.  Defense counsel alerted the court that if notes were taken in the second interview, the District was required to produce them as Jencks material.  The court deferred ruling on the issue.  When the defense renewed the request in a motion for a judgment of acquittal, the prosecutor responded that she had turned over all of the notes in her possession and did not believe that any notes of the second interview existed.  The court ruled that the existence of any notes from the second interview was speculative. 

Issue:  Whether the trial court erred by failing to hold an evidentiary hearing to determine whether any Jencks material existed, when the defense alerted the Court to “the possibility” that a police officer took notes during the interview with the government witness.

Holding:  Yes.  To implicate Rule 26.2, the District’s version of the federal Jencks Act, 18 U.S.C. § 3500(b), the moving party need only establish a “reason to believe that a statutory statement may exist.”  Slip op. at 8 (quoting Johnson v. United States, 800 A.2d 700 (D.C. 2002)).  If the nonmoving party is unable to produce the statement, the trial court is required to hold an evidentiary hearing to determine whether the statement exists.

Of note:

• The prosecutor’s statement that she did not believe any further police notes existed was insufficient to negate the defense’s right to an evidentiary hearing: “The nonmoving party’s lack of knowledge of the statement does not alone establish that the statement does not exist.”  Slip op at 8 (citing Johnson, 800 A.2d at 701). 

• The defense was not required to prove that a written statement existed.  It was enough to establish that a police officer may have taken notes during the second interview with the witness, which was conducted by telephone.  NG

Read full opinion here.