Whereas ethical rules provide prosecutors guidance on all these questions, and set forth a prosecution disclosure obligation that includes all favorable information in a timely fashion, the Brady rule instructs prosecutors that failure to satisfy that obligation will only upset a conviction if the information is material —a determination that overwhelmingly favors the prosecution.
When prosecutors rely on the Brady rule to determine pretrial disclosure obligations, they are likely to withhold favorable information from the defense. Multiple studies have demonstrated that this practice of nondisclosure can (and has) led to wrongful prosecutions and convictions. And, recent high-profile cases have demonstrated the destruction caused when favorable information is withheld from the defense. Whether through negligence or by design, prosecutors all too often fail to disclose favorable information to the defense. This failure is often enabled by grossly inadequate federal and state disclosure rules and statutes.
NACDL has undertaken a number of research and advocacy programs to support reform in this area. Working with the VERITAS Initiative of Santa Clara Law, NACDL conducted a comprehensive study of Brady claims litigated in federal courts and found that the government prevailed on the question of materiality in 90 percent of the instances in which it withheld favorable information. In the fall of 2014, NACDL and VERITAS released a comprehensive report on the study, its extensive findings, as well as recommendations for reform. That report, Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases, and footage from the November 17, 2014 release event, are available on the Material Indifference report page.
In 2012, NACDL’s Board of Directors approved model legislation that would require disclosure of all favorable information to the accused, regardless of materiality. This model law is embodied in the Fairness in Disclosure of Evidence Act, a federal bill introduced in the 112th Congress by Senator Murkowski (R-AK), that had bi-partisan co-sponsorship and support from a broad coalition ranging from the ACLU to the U.S. Chamber of Commerce. Read NACDL's press release applauding the introduction of this bill and watch the news conference discussing the bill and the need for reform.
To support this reform effort, NACDL released a video, titled America Needs Sensible Discovery Reform, a one-page summary of the federal legislation, and a compilation of case summaries, titled The Human Cost of Brady Violations. Following the release of the Material Indifference Report, Sen. Murkowski announced her intentions to re-introduce federal discovery reform legislation in the 114th Congress.
In 2014, NACDL’s Board of Directors also approved model open-file legislation that now serves as a blueprint for discovery reform nationwide. Through these model laws, as well as advocacy, research and resources, NACDL is likewise supporting the efforts of its state affiliates to enact fair disclosure rules and statutes across the nation.
In addition, following news that the Department of Justice's Office of Legal Education published, but did not make available to the public, a text referred to as the Federal Criminal Discovery Blue Book, NACDL sought the disclosure of this document through a Freedom of Information Act (FOIA) request. DOJ denied the request, purportedly on privilege-based and law enforcement grounds. Although ultimately unsuccessful, NACDL did pursue legal action in the U.S. District Court for the District of Columbia to obtain disclosure.
Advocacy letters in support of federal reform are available and additional information on the federal legislation and other resources are detailed below.
S. 2197 – Fairness in Disclosure of Evidence Act of 2012
The bi-partisan Fairness in Disclosure of Evidence Act of 2012 (S. 2197), introduced by Sen. Lisa Murkowski (R-AK) and the late Sen. Daniel Inouye (D-HI), sought to reform and clarify the currently ambiguous discovery process by:
- Eliminating the subjective materiality standard and instead requiring prosecutors to disclose materials that “reasonably appear to be favorable to the defendant” without regard to its admissibility in court.
- Requiring disclosure without delay after arraignment or prior to entry of a guilty plea, or as soon as reasonably practicable upon the information becoming known to the prosecutor.
- Providing courts with an array of remedial powers to be used depending upon the facts and circumstances of each case and situation.
- Requiring disclosure without delay after arraignment or prior to entry of a guilty plea, or as soon as reasonably practicable upon the information becoming known to the Government.
One-page summary of the legislation.
Why the Fairness in Disclosure of Evidence Act Matters
Unlike discovery in civil cases, where the rules require that all parties get equal access to the same information, criminal discovery all too often is guided by prosecutors’ exceedingly narrow reading of the Brady rule and view that favorable information need only be disclosed to the defense if it is material. Attempting to apply the Brady rule, a post-conviction standard of review, to pretrial disclosure decisions presents an obvious risk of wrongful conviction. Yet failure to disclose all favorable information is commonplace and, absent meaningful discovery reform, it will remain as such.
The below prosecution examples illustrate the severe consequences caused by prosecutors failing to disclose favorable information to the defense. No matter the cause of the failure—whether it was intentional, negligent, or simply a misunderstanding of disclosure obligations—the destruction caused to the defendants is inexcusable.
Former U.S. Sen. Theodore “Ted” Stevens: In re Special Proceedings, Case No. 09-mc-198 (D.D.C. 2012).
The late Senator Ted Stevens was prosecuted and convicted for criminal ethics violations, subsequently lost his re-election campaign, and, only shortly before his tragic passing, was exonerated after a whistleblower revealed that prosecutors withheld critical information of the Senator’s innocence in violation of his constitutional rights. From the start, this prosecution was permeated with government misconduct, making it impossible for the Senator to get a fair trial. During a pretrial interview, for example, the government’s star witness made statements that would have been very useful information for the defense to use at trial. The prosecutors did not, however, give this information to the defense. Instead, they covered up its existence and eventually procured a new and inconsistent statement from the witness. Also, during the trial, the prosecutors knowingly introduced false business records and refused to give the defense the grand jury testimony of another witness who had made statements helpful to the Senator, instead representing that the testimony was not “material.”
As a result of numerous egregious violations committed by the experienced prosecutors in this case, the Senator’s conviction was eventually dismissed. Ordering an investigation into the misconduct, U.S. District Court Judge Emmet G. Sullivan explained that “[t]he government’s ill-gotten verdict in the case not only cost that public official his bid for re-election, the results of that election tipped the balance of power in the United States Senate.” The investigation cannot, however, undo the damage to the Senator’s reputation and legacy, all the more irreparable due to his tragic passing.
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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.
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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.
Lindsey Manufacturing: U.S. v. Aguilar, et al., Case No. CR-10-1031(A)-AHM, (C.D.Cal. 2011).
Companies facing criminal charges rarely go to trial, but Lindsey Manufacturing President and CEO Keith Lindsey and Vice-President and CFO Steve K. Lee took the trial risk and mounted an aggressive defense, on behalf of themselves and their company, that lifted the veil on numerous violations of their constitutional rights. The Lindsey defendants were charged and ultimately convicted of multiple violations of the foreign bribery statute (FCPA). In a lengthy post-trial order, however, U.S. District Court Judge Howard Matz described this case as an “unusual and extreme picture of a prosecution gone awry,” threw out all the convictions, and banned the government from retrying the case.
Occurring over a three year period, the misconduct included the intentional withholding of several grand jury transcripts evidencing the serious flaws in the investigation and substantially undercutting the government’s case. Judge Matz characterized these transcripts as the “most complete and compelling evidence that the Government investigation had been tainted” and explained that without the transcripts, the defense was severely hamstringed. Despite all this, the Lindsey defendants were able to fight for their innocence and protect their rights. But the successful defense of these individuals and their company came at great cost.
Edgar Rivas: 377 F.3d 195 (2nd Cir. 2004).
Originally sentenced in 2003 to over ten years in prison, Edgar Rivas only regained his freedom after the 2nd Circuit Court of Appeals ruled that prosecutors violated his constitutional rights when they intentionally withheld a statement made by their main witness that actually supported Rivas’ version of events. A sailor on a foreign freighter, Rivas was charged and ultimately convicted of smuggling cocaine from Venezuela to New York despite his assertion that the drugs belonged to his shipmate. Prior to trial, the government’s main witness, a fellow shipmate, admitted that he was the one who brought the drugs onto the ship, but the government hid that admission and it only came to light after the jury found Rivas guilty. The 2nd Circuit threw out Rivas’ conviction, stating that the government’s behavior was “totally unacceptable.” Ultimately, the prosecutors declined to retry Rivas. But if the shipmate’s admission had remained undisclosed, he would have spent over ten years in prison.
Anthony Washington: 263 F.Supp.2d 413 (D.Conn. 2003).
Charged and convicted of unlawful possession of a gun, it took Anthony Washington nearly two years to clear his name after the government failed to disclose that the 911 caller, upon whom the government based its entire case, had been previously convicted of making a false report. In this case, the only question for the jury was whether Washington possessed a gun. It was not until the first day of trial, however, that prosecutors revealed that the now-deceased 911 caller—who provided the only real evidence in this case—had been criminally convicted for lying. As U.S. District Court Judge Janet Bond Arterton explained, this “impeachment evidence was critical in this context” because the defense could have fully explored the caller’s character and discredited the 911 tape had this information been disclosed as required. After nearly two years of waiting, Washington finally got the closure he deserved when Judge Arterton threw out his unconstitutionally-obtained conviction.
Additional case examples, as well as quantitative and statistical data on this issue, can be found in the Material Indifference Report.
NACDL's Position on the Fairness in Disclosure of Evidence Act: NACDL Supports the Fairness in Disclosure of Evidence Act of 2012
NACDL supports the Fairness in Disclosure of Evidence Act due to well-documented instances of federal prosecutors failing to discharge their constitutional obligation under Brady and comply with the ethical obligation to disclose all favorable information regardless of materiality.
The Fairness in Disclosure of Evidence Act remedies severe problems in three areas of current practice:
Confusion about what information must be disclosed prior to trial.
- Some courts and the Department of Justice (DOJ) have adopted a pretrial rule that allows prosecutors to withhold favorable information based on their prediction about whether such evidence will be “material” to a trial that has not yet occurred.
- The materiality standard asks a prosecutor to forecast whether disclosure of a particular piece of information would probably cause them to lose the trial; this standard has often been used to justify withholding extremely favorable information on the ground that it is "not material" since the prosecutor still believes they can win the trial despite this information.
- In addition, prosecutors rely on the materiality standard to withhold inadmissible information even though its disclosure may lead to the discovery of admissible favorable information.
Confusion about when favorable information must be disclosed.
- Most courts apply an unclear rule that requires disclosure only “in time for the defense to reasonably use the evidence” and most districts do not have clear rules specifying the timing of disclosure.
- New DOJ guidance provides prosecutors broad discretion to delay disclosure using similar standards.
- Prosecutors often delay disclosure of exculpatory information contained in witness statements until after direct examination of the witness at trial, leaving defense counsel little time to review and effectively use the information.
Confusion about what remedies exist for failure to disclose favorable information.
- There is no doubt that the withholding of favorable information has significant financial costs to the criminal justice system as well as profound personal and financial costs to individuals and companies accused of crimes.
- The few appellate decisions addressing the power of courts to remedy discovery violations are conflicting.
Status of the Fairness in Disclosure of Evidence Act
S. 2197 was introduced on March 15, 2012 and was immediately referred to the Senate Judiciary Committee. The Senate Judiciary Committee held a hearing on the Fairness in Disclosure of Evidence Act on June 6th, 2012. The Senate bill failed to move out of committee during the 112th Congress and has not been reintroduced.
How to Get Involved
Currently there is no active legislation aimed at federal discovery reform. To show support for such reform efforts, please use NACDL’s Contact Congress function to call or email your U.S. Representative or Senator, or the sponsors of the Fairness in Disclosure of Evidence Act of 2012, to encourage them to re-introduce, co-sponsor, or generally support similar legislation in the 117th Congress.
- Advocacy Letters, Model Laws, and Relevant Ethics Rules
- Discovery Reform Overview Page
- Prosecutorial Misconduct Page
- Material Indifference Report & Materials
- NACDL Model Open File Discovery Legislation
- NACDL Model Legislation (requires disclosure of all favorable information)
- FOIA Lawsuit for DOJ Discovery Bluebook
- News Release (February 21, 2014)
- Model Ethical Rule Order