The "Free Flow of lnformation Act" (S. 448; H.R. 985) … was reintroduced in the 111th Congress. Soon after this legislation was introduced in the 110th Congress (S. 2035; H.R. 2102), NACDL formed its Reporters' Shield Legislation Task Force to study the proposed law and ascertain the potential implications for the integrity and fairness of our criminal justice system. I write ... to explain our specific concerns with the language of the most recent versions and to articulate our view that any legislation of this nature not be used to undermine the criminal justice process.
Brief for National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Appellants.
Argument: The courts below committed legal error in not considering the State’s affirmative obligations to disclose exculpatory evidence. The State’s duty to disclose exculpatory information necessarily informs defense counsel’s diligence obligations. The defense was entitled to rely on the State’s open-file policy. The Circuit Court abused its discretion by not considering some of the most probative evidence regarding defense counsel’s diligence in regards to the Keene Statement.
Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.
Argument: Courts applying the "Implied Certification" theory to impose liability under the FCA erroneously construe the statute’s text, purpose, and legislative history. Under the FCA, any nondisclosure can only be invoked if there is an independent legal duty to disclose contractual, regulatory, or statutory noncompliance. "Implied Certification," without proper constraints, is a misnomer; those who contract with the government do not have an independent duty to disclose their contractual, regulatory, or statutory noncompliance. The relationship between private contractors and government program participants does not impose any disclosure duty. The FCA does not create a duty on the part of private contractors or government program participants to disclose noncompliance. Any independent duty to disclose that might be deemed to exist for FCA purposes is limited to those instances where compliance is expressly required as a precondition to payment.