In Hernandez v. U.S. decided on January 14, 2016, the DC Court of Appeals affirmed the assault charge but remanded for further review by the trial court on the issue of non-disclosure of the Jencks material and whether a new trial would be warranted.

Factually, Hernandez was charged with domestic violence assault against his girlfriend. Although she had technically denied the assault, due to some language barriers and other significant independent evidence — the trial court’s findings were affirmed on that issue alone.

Specifically, an independent witness had seen the defendant choke Ms. Argueta-Avila/the complainant and then saw her fall to the ground. The Officer at the scene described the complainant frantic, shaken and crying with scratches on her chin and arms. Moreover, the record contained testimony from the complainant that every time he drinks he does this, meaning puts his hands on her.

The trial court credited the complainant’s testimony that the defendant grabbed her shirt and pushed her. The trial court recognized that when she had told the police that Mr. Hernandez did not assault her — she meant that he had not hit her, but that legally there was sufficient evidence of assault.

However, the Court of Appeals remanded on the issue of Jencks request and whether the trial court had conducted an adequate inquiry into whether the United States was required to disclose to the defendant notes of the prosecutor’s interview with the complainant.

The Jencks Act provides that “once a witness other than the defendant has testified on direct examination, the court upon request must order the attorney for the party calling the witness to produce ‘any statement’ in the attorney’s possession relating to the subject matter of the witness’s testimony.

The definitions of ‘statement’ include a ‘substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and that is contained in a stenographic, mechanical, electrical, or other recording or a transcription thereof.”

The trial court had ruled without sufficient inquiry or examination of the prosecutor or possible review of her notes that the statements recorded were not “verbatim” and thus not discoverable.

The Court of Appeals relying on an analogous cases already decided — held that the trial court here erred by denying the request for production based on the “factually unsupported” and bare conclusion from the prosecutor that her notes were not substantially verbatim and thus not statements as required by the Act.

The Court further expounded that the Act “does not vest in the government the unilateral power to determine without judicial supervision the question of whether or not the statement falls within the purview of the statute. When a controverted question . . . arises, it is for judicial determination with the judge acting as arbiter.”

The Court also ruled that the requirement that the statements be verbatim is a flexible one: each statement must be examined in light of circumstances such as

1. The extent to which the writing conforms to the witness’[s] language,
2. The length of the statement as compared to the length of the interview,
3. The lapse of time between the interview and its transcription,
4. The appearance of the substance of the witness’[s] remarks and
5. The purpose for which the statement was taken.

Thus as the trial court had not reviewed the possible Jencks material to determine independently whether they were discoverable under the Act, there is a presumption that there was potential exculpatory evidence and thus the case must be remanded for further determination by the trial court and if the nondisclosure was not harmless, the trial court should vacate the judgment of guilt and order a new trial.

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