More than 100 former federal prosecutors, including many members of NAFUSA, have joined more than 125 signatories of Call for Congess to Reform Federal Criminal Discovery (click here to read the full statement as well as review a list of all signatories to date). The Call for Reform, dated March 15, 2012, states that “we have seen a troubling number of cases involving failures to disclose evidence to the defense pursuant to Brady v. Maryland and its progeny. It cites the prosecution of Senator Ted Stevens as “most notable.”
The Call for Reform concludes:
Only federal legislation can adequately address these continued violations by federal prosecutors, creating a uniform standard for what must be disclosed and what remedies will exist for non-disclosure, and sending a strong message to the DOJ that there will be consequences when federal prosecutors violate their discovery obligations.
The legislation that we envision would do the following:
1. Provide that the scope of the prosecution’s discovery obligation extends to all information—regardless of admissibility at trial—that could reasonably be considered favorable to the defendant, with respect to pretrial motions, guilt, impeachment of witnesses, or sentencing. Requiring disclosure of all “favorable” information requires less room for interpretation on the part of the prosecutors than a materiality standard.
2. Clarify that prosecutors have an obligation to exercise due diligence in obtaining any favorable evidence, beyond what is in their possession, from other parties involved in the investigation and/or prosecution, including federal, state and local law enforcement or other agencies.
3. Require that prosecutors disclose favorable information without delay, as soon as they become aware of it, thus clarifying that the Jencks Act does not trump this disclosure requirement. If the government has legitimate objections to disclosure due to concerns about a witness’ safety, a desire to protect classified information, or other reasons, prosecutors may raise those concerns with the court, which can issue a protective order if appropriate.
4. Impose an appropriate remedy in the case of non-compliance, including exclusion of evidence or witness testimony, a new trial, dismissal of the charges, or other remedies to be determined by the court. Courts generally have the power to fashion appropriate remedies under their general supervisory powers, but this law would clarify that the court shall use that power to fashion an appropriate remedy each time a violation of the disclosure requirement has occurred.
On March 15, 2012, Senator Murkowski introduced a bill that closely mirrors the reforms called for in the statement. The Department of Justice has issued a statement expressing opposition to any legislation reforming criminal discovery practices.