Jesus A. Hernandez v. United States (decided January 14, 2016).
Players: Associate Judges Fisher and McLeese, Senior
Judge Ruiz. Opinion by Judge
McLeese. Trial judge Fern Flanagan
Saddler. Geneva G. Vanderhorst for Mr.
Hernandez.
Facts: Mr. Hernandez was convicted of simple
assault; his girlfriend, Ms. Argueta-Avila, was the complainant. The government’s evidence consisted of Ms.
Argueta-Avila’s testimony that an intoxicated Mr. Hernandez grabbed her and
pushed her, the testimony of a bystander who said that he saw Mr. Hernandez
choke her, and testimony of a police officer regarding out-of-court statements
by Ms. Argueta-Avila (that she had not been assaulted) as well as his
observation of her torn shirt and scratches on her chin and arm.
Issue: After affirming on sufficiency grounds, the
Court was presented with the question whether the trial court conducted an
adequate Jencks inquiry after the defense established that the prosecutor took
notes during an interview with the complainant.
Held: The trial court erred in failing to conduct
an adequate inquiry into whether the United States was required to disclose the
notes of the prosecutor’s interview with the complainant. After defense counsel established that the
complainant had met with the prosecutor and the prosecutor was taking notes,
counsel had no further obligation to establish that the notes were “verbatim,”
as the trial judge erroneously believed.
Rather, the trial judge had to make an adequate inquiry or review the
notes to see if they were Jencks material.
While the trial judge here inquired of the prosecutor whether she was in
possession of any Jencks material, the judge erred in relying on the “assurance
from the prosecutor, who is an officer of the [c]ourt” that she had no notes
that would constitute Jencks. The Court
of Appeals held that because there is “no clear line” between what is
substantially verbatim and what is not, a trial court cannot deny a Jencks
request solely by accepting a prosecutor’s “bare conclusion,” but rather has
“an affirmative duty to make its own determination whether requested notes come
within the purview of Jencks.”
Of
Note:
- The Court distinguished the situation in which a prosecutor represents that she did not take any notes – which is essentially the representation of a prosecutor as to a “pure question of fact as to which the prosecutor had personal knowledge” – something a judge is entitled to credit. The Court noted that the question whether notes are “substantially verbatim,” by contrast, is “to a degree a legal question” (although the Supreme Court has characterized it as predominantly factual in nature) and therefore “a trial court cannot simply accept, without further inquiry, a prosecutor’s conclusory assertion.”
- After concluding the Jencks inquiry was inadequate, the Court engaged in a harmless error analysis, noting that when the Court does not have access to the Jencks material in question, it must assess harmlessness by assuming that the undisclosed material contained a Jencks statement and that the trial court therefore would have struck the witness’s direct testimony. Concluding the error was not harmless under that test, the Court remanded the case for an appropriate Jencks inquiry, noting that if the trial court concluded that there was Jencks material that should have been disclosed, the parties should brief the question whether the nondisclosure was harmless given the content of the notes. If the trial judge concluded the notes do not contain Jencks material, or that any nondisclosure was harmless, Mr. Hernandez would have the right to seek further appellate review. Presumably, review of the harmlessness determination by the trial court would have to be de novo, under Davis v. United States, 564 A.2d 31, 42 (D.C. 1989 ) (en banc) (appellate court owes no deference to trial court determination of harmlessness). JF
