Were it meritorious, Brady would require production of attorney notes in all cases, something Brady clearly does not require. The possibilities for abuse in such a procedure are manifest. Unless defense counsel becomes aware that other exculpatory evidence was withheld and brings it to the court's attention, the prosecutor's decision on disclosure is final. Defense counsel has no constitutional right to conduct his own search of the State's files to argue relevance. May Vary at Trial does not Require the Production Of all the Evidence Contained in the Government's Notes Defendant's second basis for arguing that disclosure of attorney notes is warranted is the possibility that one or more witnesses may testify at trial differently from that which he previously told the Government.
Defendant contends it needs attorney notes to determine if that, in fact, happens.
This mere speculation on defendant's part is not sufficient to require disclosure of attorney notes. The Government recognizes that a change in a witness's recollection over time may become discoverable as Brady , if the change of recollection is about a material matter. This is true whether or not such a change is recorded in notes. In the instant case, the defendant has information relating to a witness' recollection over time. Defendant also has the summarized Brady disclosures previously provided by the Government.