☰ In this section

The Champion

March 2010 , Page 34 

Search the Champion Looking for something specific?

Preview of Member Only Content

For full access: login or Become a Member Join Now

Beyond Brady: Using Model Rule 3.8(d) in Federal Court for Discovery of Exculpatory Information

By Irwin H. Schwartz

Last year was a difficult one for the Department of Justice. In several high-profile cases involving lawyers in “Main Justice” and in U.S. Attorney’s Offices, courts found serious and repeated violations of defendants’ constitutional rights under Brady and sanctioned the government and its lawyers.1 The Brady decision is almost 50 years old, but its promise of due process through broad disclosure by prosecutors has not been met. To secure discovery of exculpatory and mitigating information, a better tool may be ABA Model Rule of Professional Conduct 3.8(d).

The Problems With Brady 

The “Brady rule” is based on a defendant’s right to due process and upon “the special role played by the American prosecutor in the search for truth. …” Together, they mandate the “prosecution’s broad duty of disclosure. …”2 A defense attorney’s invocation of Brady does not guarantee the defense will receive exculpatory information, or receive it at a time when it can be used most effectively. As the law has

Want to read more?

The Champion archive is reserved for NACDL members.

NACDL members, please login to read the rest of this article.

Not a member? Join now.
Join Now
Or click here to see an overview of NACDL Member benefits.

See what NACDL members say about us.

To read the current issue of The Champion in its entirety, click here.

  • Media inquiries: Contact NACDL's Director of Public Affairs & Communications Ivan J. Dominguez at 202-465-7662 or idominguez@nacdl.org
  • Academic Requests: Full articles of The Champion Magazine are available for academic and research purposes in the WestLaw and LexisNexis databases.
Advertisement Advertise with Us

In This Section

Advertisement Advertise with Us