Some prosecutors argue (without citation to any authority, because there is none) that Brady material not contained in a document memorialized by a witness himself (such as the witness's grand jury testimony or statements to the prosecutor) need not be disclosed prior to the witness's testimony at trial. In United States v. Sablan & Guerrero, 2009 WL 3379011 (E.D. Cal. 2009), a recent federal homicide prosecution, the defendants requested pretrial discovery of just such Brady material. In that case the trial court granted the defense request for pretrial disclosure of Brady material, rejecting the government's argument that Brady material need not be turned over prior to the witness testifying as long as the material was also considered discoverable pursuant to the Jencks Act (the federal equivalent of the Rosario rule and CPL 240.45 discovery). The court held that Brady obligations are not altered by the fact that such information is contained in statements or grand jury testimony and thereby also subject to disclosure pursuant to some other obligation, such as the Jencks Act.

Prosecutorial attempts to conceal the information that must eventually be turned over as Brady material until the last possible moment have been criticized as gamesmanship seeking to prevent effective defense use of such information or, at minimum, to make such use exponentially more difficult, contrary to the direction that such disclosure be made in time for the defendant to use it effectively (see, People v. Steadman, 82 N.Y.2d 1 [1993]; People v. Leavy, 290 A.D.2d 516 [2nd Dept. 2002]; see also, Leka v. Portuondo, 257 F.3d 89 [2nd Cir. 2001]).