Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases

The integrity of the criminal justice system relies on the guarantees made to the actors operating within it. For the accused, the guarantee of fair process includes not only the right to put on a defense, but to put on a complete defense. The U.S. Supreme Court recognized the importance of this guarantee over 50 years ago, in Brady v. Maryland, when it declared that failure to disclose favorable information violates the constitution when that information is material. This guarantee, however, is frequently unmet. [Released November 2014]


Cover for NACDL report Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal CasesIn courtrooms across the nation, accused persons are convicted without ever having access to, let alone an opportunity to present, information that is favorable to their defense.

The frequency with which this occurs and the role it plays in wrongful convictions prompted NACDL and the VERITAS Initiative to undertake an unprecedented study of Brady claims litigated in federal courts over a five-year period. The Study asked: What role does judicial review play in the disclosure of favorable information to accused? The results revealed a troubling answer—the judiciary is impeding fair disclosure in criminal cases and, in doing so, encouraging prosecutors to disclose as little favorable information as possible.

On November 17, 2014, at the National Press Club in Washington, DC, NACDL officially released Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases, a major study produced jointly with the VERITAS Initiative at Santa Clara Law School. The event featured comments by NACDL President Theodore Simon, NACDL Executive Director Norman L. Reimer (who also moderated the event), and special guests David W. Ogden, former Deputy Attorney General who is now a partner at the WilmerHale firm, and the Hon. Alex Kozinski, Chief Judge of the Ninth Circuit Court of Appeals. The report's co-authors – VERITAS Initiative Director and Professor Kathleen "Cookie" Ridolfi, NACDL White Collar Crime Policy Counsel Tiffany M. Joslyn, and VERITAS Initiative Pro Bono Research Attorney Todd H. Fries – also discussed their findings and recommendations. The event was broadcast live by C-SPAN and is available on demand.

To receive an electronic copy of the study data please contact NACDL's Director of Economic Crime & Procedural Justice, Nathan Pysno, at 202-465-7627 or

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