Resources and letters of support regarding federal discovery reform legislation

Fifty years ago in Brady v. Maryland, the U.S. Supreme Court held that the failure to disclose favorable information to a defendant in a criminal prosecution violates the constitution when that information is material to guilt or punishment. This common law standard, often referred to as the Brady rule, has created confusion about what information must be disclosed, when it must be disclosed, and what remedies exist when favorable information is not disclosed.

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]

North Carolina Criminal Discovery Statute

Ohio Discovery Statute Current Rule 12 (Pleadings and Motions Before Trial: Defenses and Objections) section K (Appeal by state): Ohio law governing state appeal from an order suppressing or excluding evidence, or from an order directing pretrial disclosure of evidence

Ohio Discovery Statute Current Rule 16 (Discovery and Inspection)

Many recent cases have exposed the fact that federal prosecutors, whether through negligence or by design, all too often fail to abide by their constitutional duty to disclose information favorable to the defendant. To help ensure fairness in federal criminal proceedings, the Board of Directors of NACDL has endorsed model legislation drafted by NACDL's Discovery Reform Task Force that would require the government to disclose all information favorable to the accused in relation to any issue to be determined in a federal criminal case. [Released May 2011]

NACDL created The Commission to Reform the Federal Grand Jury, drawing on the expertise of a variety of professionals throughout the criminal justice system. Commissioners spent two years examining the need for changes in the grand jury process and produced a Federal Grand Jury Bill of Rights based on their findings. The ten reforms set forth in this Bill of Rights, largely echoing those proposed by the American Bar Association (ABA) more than 20 years ago, would restore balance to the grand jury process and better protect against unwarranted prosecutions. [Released May 2000]

U.S. District Court Judge Emmet G. Sullivan’s letter to the Judicial Conference Advisory Committee on the Rules of Criminal Procedure, regarding federal disclosure obligations and suggesting an amendment to the Federal Rules of Criminal Procedure.

A new development in New Mexico courts in the matter of In re Grand Jury Presentation Concerning James Bort Jones resulting in a pre-indictment mechanism enabling investigation targets to alert grand jury to exculpatory evidence.

With its opinion In re Grand Jury Presentation Concerning James Bort Jones (N.M. 2009), New Mexico joins a minority of states – Colorado, Maine, North Carolina, New York, Tennessee, and Illinois – that have explicit pre-indictment mechanisms. The court noted the importance of pre-indictment procedures given the irrevocable consequences that an indictment can have on a target’s career and reputation.

NACDL is dedicated to securing meaningful, systematic reform and to preventing the insidious harm caused when a prosecutor carelessly, or purposefully, fails in his or her duties to us all. Prosecutorial overreaching and misconduct distort the truth-finding process and taint the credibility of the criminal justice system, including the outcomes they generate. When prosecutors’ fundamental obligations are ignored and individuals’ rights are violated in order to secure a conviction, little can be done to rectify the wrongs inflicted upon the individuals involved and on the system itself.

Nearly fifty years ago, in Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court recognized the constitutional importance of providing a person accused of a crime with any and all favorable information that might affect the case. This decision established certain constitutional obligations for prosecutors during the pre-trial information sharing process known as “discovery.” These are the stories of real people whose lives were dramatically harmed by the government’s failure to comply with the constitutional demands of Brady.

Collects discovery reform proposals and model laws from various organizations

Sen. Dale Bumpers (D-AR) introduced the Grand Jury Due Process Act (S. 2030) in May 1998. This legislation would have provided a right to assistance of counsel in the grand jury room. In July 1998, Bumpers introduced a more comprehensive reform bill called the Grand Jury Reform Act (S. 2289). In addition to providing a right to counsel's presence, this legislation would have required that grand jurors receive basic legal instructions, that prosecutors present any substantial evidence of innocence, and that defendants receive transcripts of certain grand jury testimony against them.

"Help! I've Been Subpoenaed! What Do I Do?" By Earle F. Kyle IV and Gerald B. Lefcourt, ACCA Docket October 2002