News Release ~ 07/07/2011

Legislation Would Enforce Government’s Duty To Disclose Favorable Information to Accused

Washington, DC (July 7, 2011) – Many recent cases have exposed the fact that federal prosecutors, whether through negligence or by design, all too often fail to abide by their constitutional duty to disclose information favorable to the defendant. To help ensure fairness in federal criminal proceedings, the Board of Directors of the National Association of Criminal Defense Lawyers (NACDL) has endorsed model legislation drafted by NACDL’s Discovery Reform Task Force that would require the government to disclose all information favorable to the accused in relation to any issue to be determined in a federal criminal case.

In 1963, the Supreme Court held, in Brady v. Maryland, and reaffirmed in Kyles v. Whitley (1995), that prosecutors have an “affirmative duty to disclose evidence favorable to a defendant” known to be in the possession, custody or control of the government (including the police or other agencies) or which can be discovered by the prosecution team using due diligence. Such material may include information tending to negate guilt, mitigate punishment, or impeach the testimony of a government witness. The information does not necessarily have to be admissible as evidence to trigger a prosecutor’s disclosure obligations.

In case after case, federal prosecutors have been derelict in this duty. For example, after the federal corruption trial of the late U.S. Senator Ted Stevens, a new prosecution team unearthed evidence that the trial prosecutors used fabricated testimony by a key government witness and hid other evidence that would have proved Stevens’ innocence – or could even have stopped his prosecution before the case even went to trial. The Attorney General then moved to dismiss the indictment. But U.S. District Judge Emmet Sullivan, who presided over the case wrote to the federal Judicial Conference’s Advisory Committee on the Rules of Criminal Procedure urging a rewrite of the federal discovery rules to require mandatory disclosure of information that would be helpful to the defense. This year, the Judicial Conference declined to amend the rule.

A similar effort to amend the rules met the same fate in 2006. It was blocked when the Justice Department argued that a revision to the U.S. Attorney’s Manual adequately addressed prosecutorial disclosure obligations. Following the prosecution of the Stevens case, the prosecutoion of W.R. Grace Company in 2009, led the trial judge to accuse a key government witness of lying and conclude that the government had concealed evidence from the defense. Cases such as Stevens and W.R. Grace show the Justice Department cannot police itself. Too many prosecutors misunderstand their public obligation is not to win cases, but to ensure that justice is done. The proposed legislation would enforce that obligation and provide the trial court with remedies to correct prosecutors’ mistakes before a jury verdict.

“The DOJ consistently refuses to follow and enforce its own guidelines on its constitutional disclosure obligations,” said NACDL President Jim E. Lavine, of Houston. “Failure to abide by those obligations—whether intentional or negligent—is fundamentally unfair. When it became apparent that the Justice Department was determined to fight any effort to require its prosecutors to turn over all information favorable to the defense, NACDL established a Discovery Reform Task Force. The model legislation we are releasing today is the result of that effort, and has the unanimous support of the Association’s officers and directors. The time to put teeth into Brady obligations is long overdue.”

The proposed legislation also addresses the timing of disclosures. It directs that prosecutors “shall disclose the information, data, documents, evidence or objects described … without delay after arraignment, and prior to the entry of any guilty plea pursuant to an agreement with the government, or if such information is not then known, immediately upon its existence becoming known, without regard to whether the defendant is proceeding to trial or has entered or agreed to enter a guilty plea.”

If enacted, the law would give the trial court a wide range remedies if the prosecution fails to live up to its duties. For example, the court could postpone a proceeding, or limit or exclude testimony. In extreme cases, the court would have the power to dismiss the case or order a new trial. In determining an appropriate sanction, the court would have to consider the totality of the circumstances, including the seriousness of the violation, its impact on the proceedings, and whether the failure resulted from innocent error, negligence or intentional withholding. It would also allow defendants and public defender offices to recoup reasonable attorney’s fees for costs and expenses incurred as a result of the prosecution’s failures.

Noting that “a criminal trial should not be a game,” President Lavine said the proposed legislation “creates clear and meaningful standards governing the prosecutor’s duty to disclose any and all evidence that could help the accused defend his case.”

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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 10,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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