Sunday, April 29, 2012

Ten Basic Observations About Discovery Call for New Legislation

Here are ten basic observations regarding criminal discovery.  They send a loud message that the proposed  Senator Lisa Mukowski (Alaska) (along with Senators Inouye, Hutchinson, Begich and Akaka) "Fairness in Disclosure of Evidence Act" legislation is needed to codify the holding in Brady and add teeth to making certain that defendants receive a fair trial.

Ten Basic Premises:

  1. Most prosecutors play by the rules.
  2. One of the rules is you have to give up Brady material.
  3. Brady is going to be 50 years old in 2013.
  4. The ethics rules require prosecutors to give up exculpatory material.
  5. Some prosecutors have no clue what Brady material really is.
  6. In some cases prosecutors can’t tell if something is favorable to the defense because they don’t know what the defense will be presenting.
  7. Discovery in national security cases, terrorism, and cases where someone will get hurt needs to be treated differently.
  8. The chances of prosecutors being caught if they fail to give up Brady material is slim.
  9. If Brady material is not given or given late, most courts will find it to be harmless error.
  10. The chances of a prosecutor being disciplined for not giving up exculpatory material is slim.


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A group of criminal justice system experts assembled by The Constitution Project, including more than 100 former federal prosecutors, agree that legislation like Senator Murkowski’s is necessary. Whether intentional or inadvertent, the failure of federal prosecutors do discharge their Brady obligations has become too pervasive to believe that the Department of Justice can correct it through internal measures alone. Even those prosecutors who wish to fully comply with their constitutional, legal and ethical duties – as undoubtedly the vast majority of them do – have to be confused by the current standards as to what must be disclosed to the defense. Congress should act to clarify the confusion. See "A Call for Congress to Reform Federal Criminal Discovery" at

Posted by: Ginny Sloan | May 1, 2012 7:26:43 AM

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