An FYI for counsel who will be cross-examining witnesses in SDNY Judge Katherine B. Forrest’s Courtroom. Judge Forrest has issued “Guidelines Regarding Appropriate Use of 302 Forms in Criminal Trials.” You can read the Guidelines here and may need to plan ahead where you need to use a 302 to complete the impeachment of a witness.
In the eight-page document, the Court addresses what it sees as the “most common issues related to the proper use of 302s.” After discussing how the Federal Rules of Evidence apply to the use of 302s, the Court concludes: “It is clear that statements included in 302s are therefore classic hearsay without — in and of themselves — requisite indicia of reliability.” Because the Court views mention that the witness’s statements contained in the 302 were written down by an FBI agent as “giving [the statement] an indicia of reliability,” it will preclude counsel from:
(1) asking if individuals at the meeting took notes;
(2) referring to FBI agents or other government agents taking notes;
(3) suggesting or indicating that the statements are in a written document unless there is a good faith basis to believe the witness was shown the notes or the 302; and
(4) holding up or otherwise displaying a 302 to the jury at any point.