Washington, DC (Nov. 17, 2014) – Today, at the National Press Club in Washington, DC, NACDL is officially releasing its latest report, 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. Today's event will feature comments by NACDL President Theodore Simon, NACDL Executive Director Norman L. Reimer (who also will moderate 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 – will also be discussing their findings and recommendations. NACDL Executive Director Norman Reimer will moderate the discussion.
"This groundbreaking study documents one of the major problems facing the nation's criminal justice system today: the failure to ensure full, fair and timely disclosure of information favorable to an accused person in a criminal action. It is a significant step towards achieving the vital reforms necessary to guarantee a fair trial for every accused person," NACDL President Theodore Simon said.
Over 50 years ago, in Brady v. Maryland, the Supreme Court declared that failure to disclose favorable information violates the constitution when that information is material. This guarantee, however, is frequently unmet. In courtrooms across the nation, accused persons are convicted without ever having seen information that was 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.
The study's findings are extensive and dramatic including, for example:
- The materiality standard produces arbitrary results and overwhelmingly favors the prosecution. Indeed, in those decisions where the prosecution failed to disclose favorable information, it still won 86% of the time, with the court concluding that the information was not material.
- Courts almost never find Brady was violated by the late disclosure of favorable information. Of the 65 decisions that involve late disclosure of favorable information, only one resulted in a Brady violation finding.
- Favorable information is more likely to be disclosed late or withheld entirely in death penalty decisions. Favorable information was never disclosed or disclosed late by the prosecution in 53% of decisions involving the death penalty, but only 34% of all the decisions studied.
In his dissent to the Ninth Circuit's 2013 decision denying a rehearing en banc in United States v. Olsen, Chief Judge Alex Kozinski acknowledged that "[t]here is an epidemic of Brady violations abroad in the land" which in his view, "[o]nly judges can put a stop to." Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases documents that epidemic and sets forth a prescription for how to contain and ultimately cure it. As former Deputy Attorney General David W. Ogden wrote in his foreword to this report, "judges have an indispensable role and obligation to oversee the system's guarantees of fairness and to make sure that its truth- and justice-seeking mission is fulfilled in each case."
According to report co-author Cookie Ridolfi, "despite the clear correlation between withholding evidence and wrongful conviction, the results of this study demonstrate that courts persist in tolerating prosecutors' failure to timely disclose favorable information." "Judicial indifference toward late disclosure fosters non-compliance with disclosure obligations. The data strongly suggests that the practice of late disclosure has become a trial tactic rather than an allowance for exceptional circumstances," added co-author Todd Fries. Co-author Tiffany M. Joslyn was clear, "at its core, judicial adherence to the materiality standard following conviction encourages prosecutors to use that same back-end standard to narrow their front-end disclosure obligations. Our study not only confirms this, it demonstrates that front-end reform is necessary and overdue."
The report concludes by offering three reform proposals that would serve as mechanisms for increasing fair disclosure in criminal cases. First, in each case defense attorneys should request, and judges should grant ethical rule orders – orders for the prosecution to disclose all favorable information in accord with American Bar Association Model Rule 3.8(d). Second, the judicial rules and policies should be amended to require fair disclosure of information. Finally, the most effective mechanism would be to adopt legislation codifying fair disclosure in criminal cases.
Complete copies of the report, executive summary, and fact sheet are available at www.nacdl.org/discoveryreform/materialindifference. And by sometime on Tuesday, November 18, 2014, a link to the complete video of today's release event featuring Chief Judge Kozinski, former Deputy Attorney General David Ogden, NACDL President Theodore Simon, and the report's co-authors will also be available at that web address.
You can learn more about NACDL's work in the area of discovery reform, including links to model legislation and more, at www.nacdl.org/discoveryreform.
Pattern Cross-Examination for DNA and Biological Evidence: A Trial Strategy Guide
NACDL’s Pattern Cross-Examination for DNA and Biological Evidence will assist criminal defense practitioners in scoring points when cross-examining forensic experts in cases involving DNA and biological evidence. This resource contains thousands of questions that will help defense lawyers cross-examine challenging witnesses without reinventing the wheel with each new case. It includes pattern questions that can be used to dominate prosecution DNA experts and level the playing field at trial.
Cross-Examination of the Analyst in Drug Prosecutions (2nd Ed.) By James M. Shellow
Now in its second edition with some new material, James M. Shellow’s book offers what its title promises: ways of thinking about cross-examining the forensic analysts in drug cases. But the book is so much more than that. It offers a look inside the mind of one of the finest cross-examiners and defense lawyers the United States has produced in the last seventy years. This small book can inspire and direct you in making big changes in the way you defend your clients and think about the entire project of trying any case.
Justice For All, Justice Now White T-Shirt (Women’s)
This custom, vintage-faded NACDL t-shirt is 50% polyester, 25% cotton, and 25% rayon weighing 5.2 oz. and is lightwieght, flexible and soft, providing maximum comfort. It features the "Justice For All, Justice Now" slogan and Lady Liberty image on the front, with the NACDL logo on the back. Currently available in both men's and women's sizes in both black and white colors. View the full line-up of colors and sizes on our online store, as well as our other popular and best-selling t-shirt designs at: nacdl.org/store.
Drug Cases Resource Materials Collection - CD-ROM
NACDL’s Drug Cases Resource Materials Collection is the sweeping culmination of every single article of written materials ever published from each installment of NACDL's annual "Defending Modern Drug Cases" seminar. Totaling over 12,000 pages, this vast collection includes 12+ years of motions, briefs, reports, outlines, transcripts, case citations, scholarly articles, powerpoints and other written commentaries. This collection provides trial strategies and tactics you can immediately apply to your current cases.
Mental Illness & the Law: Addressing and Litigating Behavioral Health Disorders in Criminal Cases
Whether it is insanity, impairment, a disorder, or adolescent brain development; mental health and intellectual competence issues affect pretrial supervision, trial and sentencing, and your chances of successfully advocating for your impaired client. This training provides ideas and proven solutions to assist you in advocating for your client during trial, whether it be insanity defenses, jury selection, cross of expert witnesses, persuasion, or mitigation at sentencing.
Ivan J. Dominguez, NACDL Director of Public Affairs & Communications, (202) 465-7662 or firstname.lastname@example.org for more information.
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 many thousands of 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 legal system.