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Troubling the Heavens: Production of Evidence Favorable to the Defendants by the United States
By Stephen R. Pivack
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.
— Berger v. United States
295 U.S. 78, 88 (1935)
Responding in October 2006 to proposed modifications to the Federal Rules of Criminal Procedure that would have required federal prosecutors to provide any and all exculpatory and impeaching information to defendants, the U.S. Department of Justice revised the U.S. Attorneys’ Manual to ensure that prosecutors provided defendants with all such information without regard for its perceived impact at trial. Three years later, however, the Department’s changes have not had their desired effect. That fact became abundantly clear during a 30-day span in the spring of 2009, in which two federal district court judges, each sit
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