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The Other Blue Book: DOJ's Prosecution Manual Can Be Kept Secret

By Jonathan R. Tung, Esq. on July 26, 2016 | Last updated on March 21, 2019

Several years ago, Senator Ted Stevens of Alaska was criminally indicted on corruption charges but managed to slip by a conviction on what many consider a technicality. The case against him produced much debate about whether or not government lawyers were being properly trained in their ethical duties of disclosure. It also produced "the Blue Book."

Not that Blue Book, but the Federal Criminal Discovery Blue Book. And it, unlike its more famous cousin, is probably more important than you know.

The Other Blue Book: Prosecution Manual

Following the unsuccessful prosecution of Sen. Ted Stevens on public corruption charges, the Department of Justice issued the Federal Criminal Discovery Blue Book (FCDBB) -- a book that no run-of-the-mill litigator can purchase off Amazon. It was created, supposedly, while the case against Sen. Stevens began to unravel amidst accusations that government lawyers had violated the good-faith requirement found in Brady v. Maryland (requiring prosecutors to divulge potentially exculpatory evidence to defense attorneys).

In a nutshell, the book is a handbook for prosecutors on the methods and techniques employed to handle the interchange and exchange of information in federal criminal cases. Contained within also are the ethical guidelines prosecutors must follow in the event of discovering potential exculpatory evidence, as in Brady.

What attorneys may be surprised to know is that the contents of the FCDBB are considered by the DC Circuit as "attorney-work-product" -- period. This means that the techniques and guidelines used within the FCDBB are treated as if they were a communication between an attorney and his or her client. Sound convenient?

Well, this was the conclusion the DC Circuit case arrived at when it affirmed the lower court's decision. Judge Sri Srinivasan wrote for the court and said that the book was "aimed directly for use in ... litigating cases. Its disclosure therefore risks revealing the DOJ's litigation strategies and legal theories regardless of whether it was prepared with a specific claim in mind."

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