Wednesday, March 16, 2016
Proposed D.C. Local Rule Would Expand Prosecutors' Brady Obligations
Yesterday, Tom Moore sent me the following Amended Notice of Proposed Local Rule Change and Opportunity to Comment: Download Brady Proposal. This local rule change would increase the Brady obligations of federal prosecutors in the District of Columbia. The change was proposed by a committee that included Professor Cynthia Jones, who, as I've noted before, has long advocated for Brady reform. If you are in favor of this local rule change, which I will describe below, you can send positive comments in writing to
John Aldock, Esq., Chairman, Advisory Committeeon Local Rules, Goodwin Procter LLP, 901 New York Avenue, N.W; Washington, DC 20001.
Such comments must be made by March 30, 2016. Unless negative comments lead to the proposed rule being modified or withdrawn, they will be adopted as written. So, what does would this new local rule provide?
Here's the text of the proposed rule:
PROPOSED DISCLOSURE RULE
(a) Unless the parties otherwise agree, the government shall make available to the defense any non-trivial information known to the government that tends to negate the defendant’s guilt, mitigate the charged offense(s), or reduce the potential penalty. This requirement applies regardless of whether the information would itself constitute admissible evidence. The information, furthermore, shall be produced, where not prohibited by law, in a readily usable form unless that is impracticable; in such a circumstance, it shall be made available to the defense for inspection and copying.
The government shall make good-faith efforts to promptly disclose the information to the defense beginning at the defendant’s initial appearance before the court, and this obligation shall remain ongoing throughout the criminal proceeding.
(b) The information to be disclosed includes, but is not limited to:
(1) Information that is inconsistent with or tends to negate the defendant’s guilt as to any element, including identification, of the offense(s) with which the defendant is charged;
(2) Information that tends to establish an articulated and legally cognizable defense theory or recognized affirmative defense to the offense(s) with which the defendant is charged;
(3) Information that casts doubt on the credibility or accuracy of any evidence, including witness testimony, the government anticipates using in its case-in-chief at trial; and
(4) Impeachment information, which includes: (i) information regarding whether any promise, reward, or inducement has been given by the government to any witness it anticipates calling in its case-in-chief; and (ii) information that identifies all pending criminal cases against, and all criminal convictions of, any such witness.
(c) As impeachment information described in (b)(4) is dependent on which witnesses the government intends to call at trial, this rule does not require the government to disclose such information before a trial date is set.
(d) In the event the government believes that a disclosure under this rule would compromise witness safety, national security, a sensitive law-enforcement technique, or any other substantial government interest, it may apply to the Court for a modification of the requirements of this rule.
(e) For purposes of this rule, the government includes federal, state, and local law-enforcement officers and other government officials participating in the investigation and prosecution of the offense(s) with which the defendant is charged. The government has an obligation to seek from these sources all information subject to disclosure under this Rule.
(f) The Court may set specific timelines for disclosure of any information mentioned in this rule.
There's a lot of good reform in this bill, much of it in subsection (a).
1. Currently, Brady merely requires the prosecution to turn over material exculpatory evidence. This new rule require requires the prosecution to turn over any non-trivial exculpatory evidence. Obviously, this would require more disclosure by the prosecution.
2. As I wrote many years ago, there is a circuit split over whether and when the failure to disclose inadmissible evidence can form the basis for a Brady violation. This new rule makes clear that Brady covers inadmissible evidence.
3. Many prosecutors try to claim that they have open file discovery, meaning that they can't be guilty of Brady violations. This is incorrect, see, e.g., Conyers v. State, 790 A.2d 15 (Md. 2002), but that still doesn't stop many prosecutors from responding to directed discovery requests with document dumps. This new rule would prevent such "needle in a haystack" discovery by requiring prosecutors to produce evidence "in a readily usable form unless that is impracticable."
4. Finally, many courts excuse prosecutors for late disclosure of Brady material, even when such disclosure takes place after trial has started (as in the Adnan Syed case). By way of contrast, this new rule would require prosecutors to "make good-faith efforts to promptly disclose the information to the defense beginning at the defendant’s initial appearance before the court."
All in all, this looks like a terrific new rule, and I hope that it gets adopted.
Can't any Brady violation simply be spun as a late Brady disclosure?
"Ok ok so I know you were convicted ten years ago, and you just found this exculpatory document that wasn't disclosed at the time... But uh... Hey look we got a new Brady disclosure for you. Sorry it's kind of late, but here's that same exculpatory document! See judge we were just LATE disclosing it...
But NOW we definetly don't have any more Brady material. (Unless they find that other exculpatory report some time down the road, in which case we might have another late Brady disclosure to make.) Honest your honor!"
Posted by: Paul | Mar 17, 2016 3:28:33 AM
Excluding "sensitive law enforcement techniques"? Such as the "Mr Big" entrapment technique or abuse to obtain a confession? I think including that phrase as an exception should be removed.
Posted by: Elaine | Mar 17, 2016 5:33:40 AM
I'm bringing up an unrelated point/question here because I don't redit and I really respect the opinions of the people who post here and the respectful climate. The thing that has always struck me as odd is that Hae's pager was never recovered. Her purse was recovered, even her shoes were! I think there were items of jewelry in the itemized list of what was found either on Hae's body or in her car. Does anyone know if her wallet was intact with all credit cards in it, etc? This leads me to conclude that the killer would have a reason to take her pager because that person had paged Hae prior to the killing or at some point in the past. I am not suggesting a suspect, only that the missing pager, in light of all the other stuff that WAS found, is a clue I believe might lead the killer to being someone she knew. Someone who paged her to meet up after school. This wouldn’t be Adnan because he saw her during last period, did he not? Why page someone you just saw? Did CG bring up any of this in opening, closing, or within any cross or re-direct? It seems like a point to make, one that is quite intuitive. Circumstantial, yes, but it would be a risk for someone to take her pager just to sell it for $40. The only other option is the pager could have been stolen later, as the car sat somewhere for awhile.
I never had a pager but my sister did when she was 18. She gave out the number My sister gave out her pager # in the 90s liberally because the person had to send you HIS number. My sister was quite shocked that they could not pull any records to Hae’s pager, which means that my sister saw some of her own pager records at some point. Anyone have any thoughts about this stuff?
Posted by: iheartegrets | Mar 17, 2016 5:44:26 AM
Or like Kevin Urick's "Open File Discovery Policy" where every single request for discovery from the defense get promptly denied.
Posted by: Paul | Mar 17, 2016 3:20:58 AM