Discovery Reform Legislative Victories

California Discovery Bill, AB 1328

On October 3, 2015, Governor Jerry Brown signed into law AB 1328. This legislation was sponsored by NACDL’s California affiliate, the California Attorneys for Criminal Justice and carried by Assemblymember Shirley N. Weber.

This bill provides judges with the tools to combat prosecutorial misconduct by requiring judges to notify the California State Bar when there is a finding of a Brady violation; giving judges the discretion to disqualify an individual prosecutor from the underlying case when there is a finding of a Brady violation; and by giving judges the discretion to disqualify an entire prosecutor’s office when there is a finding of a systemic practice of violations, similar to issues raised in the Orange County District Attorney’s office.

AB 1328 takes effect January 2016. See text of the chapter version of the bill here.

Texas Michael Morton Act, SB 1611

SB 1611 has modernized Texas’ criminal discovery process, a process that hasn’t seen reform since 1965. Also known as the Michael Morton Act, after the man who spent 25 years in prison before being exonerated in 2011 for his wife’s 1986 murder, SB 1611 broadens a defendant’s access to evidence that could prove innocence.

The bi-partisan law aims to reduce wrongful convictions by ensuring that all relevant evidence that speaks to a defendant’s innocence or guilt is revealed. SB 1611 ensures that offense reports and written or recorded statements of the defendant and witnesses are disclosed to the defense. The law also removes the barrier of having to show ‘good cause’ before gaining access to evidence, and requires prosecutors to promptly disclose favorable evidence uncovering during and after trial.

Prosecutors had sought reciprocal open discovery, but the defense bar successfully argued that requiring reciprocal discovery could violate a defendants’ rights against self-incrimination.

SB 1611 was signed into law by Gov. Rick Perry on May 16th and went into effect on January 1st, 2014. See bill analysis here.

Louisiana Discovery Bill, HB 371

Louisiana passed HB371, An Act Relative to Discovery Reform.

Described by both prosecutors and defense lawyers as an historic sea change in the way criminal trials are handled in Louisiana, HB 371 unanimously passed the state legislature and was signed into law by Gov. Bobby Jindal on June 12, 2013.

Prior to the passage of HB 371, the defense was given access to evidence that was considered favorable or material to the trial. Many appeals were filled as a result of disagreements over what should be considered favorable or material. HB 371 eliminates the potential for arguments by requiring that law enforcement turn over all witness statements and police offense reports, regardless of whether they are considered inculpatory, exculpatory, favorable, or material.

LACDL lobbyist George Steimel, quoted in the Louisiana newspaper The Advocate said, “This is the biggest change in criminal law Louisiana has made in decades.” He added that the transparency from HB 371 allows for more effective trials and fewer appeals after convictions.

HB 371 went into effect on January 1st, 2014. See engrossed bill here

Brady v. Maryland 

The Supreme Court's holding in Brady v. Maryland requires the prosecutor to disclose to the defense all information favorable to the accused, pertaining to either the determination of guilt or imposition of sentencing. As many commentators have observed, the rule of Brady is simply not the rule in our courts. The resulting injustice - as evidenced by persistent claims and findings of the suppression of favorable information and actual wrongful convictions  - calls for real change. NACDL supports codification of the prosecution’s obligation to provide discovery to the defense of all information favorable to the accused. 

Open-File Discovery Laws

Ohio 

Ohio amended Criminal Rule 16 in 2010 to include "open discovery" rules. The rules required the prosecution to share all exculpatory information to the defense. If the defense sends a discovery request, the defense has a "reciprocal duty of disclosure" to share their files with the state, even if the state never asked for them. Also, the prosecution is allowed to mark certain documents as for defense counsel eyes only. 

The Ohio Disclosure Rules are available here.

North Carolina 

In 2004, Governor Mike Easley of North Carolina, signed into law a bill that requires prosecutors to share files in all felony cases. The discovery statute requires district attorneys to share their investigative files in felony cases to defense lawyers who request them prior to trial. The law requires that investigator notes, defendant and witness statements, test results and a list of probable witnesses for the trial be included in the files from the prosecution. The defense is also required to turn over such things as the state with witness lists and details about the grounds on which they plan to defend their client. 

The North Carolina Disclosure Statute is available here.

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