Journal of Law and Policy


Eli J. Esakoff


The Jencks Act is a McCarthy Era law that prohibits compelling the disclosure of any statement made by a government witness in a federal criminal prosecution until after the witness has testified at trial. Passed in 1957 in response to the Supreme Court’s decision in Jencks v. United States, the Act’s life in Congress was “nasty, brutish, and short.” In prosecuting its anti-communist “witch hunts” of the era, the government strove to keep hidden as much of its case against those accused as possible. Against this backdrop of the desire for secrecy, the Supreme Court held that a criminal defendant was entitled to the disclosure of statements made by government witnesses so as to allow him to assess their value to his defense. Jencks caused widespread fear that too much insight into the government’s criminal investigations and prosecutions would be given to criminal defendants. Opponents of the decision saw it as pouring gasoline into an inferno already blazing throughout the nation as a result of the perceived threat of communism. In this atmosphere of fear and paranoia, Congress changed the rule announced by the Supreme Court, at the very last minute of a particularly arduous congressional session, without following critical legislative practices, and without the advice of bench or bar. In allowing the government to withhold statements made by its witnesses until after those witnesses have testified at trial, the Jencks Act is inimical to the adversarial system of justice. Criminal jurisprudence in the United States emerged and subsequently evolved with the understanding that the fairest and most effective way of determining truth is to subject the parties’ claims to the crucible of an adversarial trial. The foundation of this concept is cross-examination—so indispensable to a fair trial as to be enshrined in the Sixth Amendment’s right to confrontation. By design, the Jencks Act frustrates the defendant’s ability to conduct cross-examination by allowing the government to withhold statements made by its witnesses. Other principal sources of discovery, primarily Federal Rule of Criminal Procedure 16, along with rules derived from Brady v. Maryland and Giglio v. United States, manifest the general consensus that expansive disclosure of evidence promotes fairness in trials. Nothing illustrates this consensus clearer than the far more liberal discovery practices in civil cases. Yet the Jencks Act denies the defendant in a criminal case, where the stakes are often far higher, the opportunity to discover aspects of the government’s evidence that are crucial to the case against him. The prejudice to defendants that the Act creates is innate in its very conception and infects every criminal case in the federal courts. This Note therefore argues that the Jencks Act must be repealed. Government witness statements should be included in the government’s general pretrial discovery. The justifications behind the Act’s passage, and the arguments for narrow discovery in general, cannot sustain the Act’s blatant disregard for defendants’ right to a fair trial.