DOJ-OGR-00004087.jpg

Case 1:20-cr-00330-PAE Document 267 Filed 05/03/21 Page4of7 The Hon. Alison J. Nathan May 3, 2021 Page 4 I. The Defense Does Not — and Need Not - Yet Intend to Call Any Particular Witness. Unlike Rule 16(b)(1), the Jencks Act and Rule 26.2 do not obligate the defense to reciprocate the government’s early disclosures with early disclosures of its own. If the government discloses Jencks Act material early, the defense is not obligated to act in kind. See United States v. Martin, No. CR 07-1205 (A) CBM, 2009 WL 453195, at *2 (C.D. Cal. Feb. 20, 2009) (denying government’s motion to compel reciprocal Jencks Act discovery from defense). There is good reason for not mandating such reciprocity: the government and the defendant are not similarly situated. Ms. Maxwell has the right to a presumption of innocence. Estelle v. Williams, 425 U.S. 501, 503 (1976). The burden to prove guilt is high, and it is entirely the government’s to bear. “T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Jn re Winship, 397 U.S. 358, 364 (1970). In result, the defense is not obligated in any way to put on evidence at trial, including witnesses. Nevertheless, Ms. Maxwell has rights to a present a defense and to compulsory process of witnesses. U.S. CONST. amend. VI; Washington v. Texas, 388 U.S. 14, 18 (1967). Because all defense witnesses are prospective, defense considerations regarding trial strategy with respect to these decisions are protected by attorney-client privilege and the work product doctrine. “Although the work-product doctrine most frequently is asserted as a bar to discovery in civil litigation, its role in assuring the proper functioning of the criminal justice system is even more vital.” United States v. Nobles, 422 U.S. 225, 238 (1975). See also Strickland v. Washington, 466 U.S. 668, 686 (1984) (“Government violates the right to effective DOJ-OGR-00004087