Disclosure of all favorable evidence by federal prosecutors urged in new study by Bruce Green

former New Orleans  D.A. Connick's
office has been successfully challenged
over a dozen times for suppression of
evidence  AP photo

Prompted by the disclosure that U.S. Justice Department lawyers hid favorable evidence from the defense in the  prosecution of the late Senator Ted Stevens of Alaska, Lisa Murkowski (R-Alaska) last year sponsored  the Fairness in Disclosure of Evidence Act of 2012.  The measure had bi-partisan support including from the late Sen. Daniel Inouye.  But the bill died in committee and has not been introduced again this term.   Its premise is simple.  It goes beyond the constitutional mandate of Brady v. Maryland to disclose materially exculpatory evidence, a highly subjective and therefore problematic judgment, to declare a "Duty To Disclose Favorable Information":

"In a criminal prosecution brought by the United States, the attorney for the Government shall provide to the defendant any covered information--‘(1) that is within the possession, custody, or control of the prosecution team; or
‘(2) the existence of which is known, or by the exercise of due diligence would become known, to the attorney for the Government."

Violation would enable a range of discretionary remedies including court costs, adjournments, disclosure, new trial, and imposition of attorneys fees and costs by the United States if it is  found to be in violation of the duty.  In a new study in the Mercer Law Review Fordham law professor Bruce Green urges adoption of the "favorable evidence" standard. 

The proposed favorable evidence standard calls for only a modest expansion of prosecutors’disclosure obligations.  That is far less demanding than the “open file” discovery required by law in some states and employed in some other states  as a matter of common practice.  And it is far short of the North Carolina statute which provides

Upon motion of the defendant, the court must order: The State to make available to the defendant the complete files of all law enforcement agencies, investigatory agencies, and prosecutors’ offices involved in the investigation of the crimes committed or the prosecution
of the defendant.

Viewing evidence through the eyes of the defense - as to what is exculpatory - is obviously problematic since prosecutors, like others, see things their own way, not the adversary's way.  Even the office of the New Orleans District Attorney  admitted before the Supreme Court that thirteen convictions had been overturned for `Brady violations' during the reign of former Prosecutor Harry Connick.  Despite such evidence the U.S. Department of Justice resists the change.  

At hearings last year on the Murkowski bill Deputy Attorney General James Cole said that the DOJ allows disclosure in excess of the constitutional minimum "as a matter of discretion".  To us that is precisely the problem.  What governs the exercise of discretion? In this regard the Murkowski bill was quite cautious.  The bill does not go so far as to declare a right to all relevant evidence (a standard narrower than a civil party's right to anything reasonably calculated to lead to admissible evidence). But  specifying all "favorable evidence" would advance the defendant’s interest in making a well-informed decision whether to plead guilty and, if the defendant went to trial, it would enhance  the chances of an effective defense. Perhaps, Green suggests, we are witnessing the old "sporting competition" attitude rather than the view that the prosecutor's duty is to justice, not to chalk up wins.

The need for a revised `ex ante' standard  is particularly acute because the avenues of relief even after disclosure are so unpromising.  In Kyles v. Whitley (1995) the Supreme Court directed that non-disclosed evidence be considered in its entirety.  If its suppression has a “ ‘reasonable probability’ ” of changing the result, it is "material".  That is an invitation to findings of "harmless error". Nor does the 1984 Strickland v. Washington standard for ineffective assistance of counsel cover much territory.  Lawyers who have been denied favorable evidence are bound to be ineffective.  Strickland requires an error by the defense lawyer and a  lack of "confidence" in the result to merit relief.

Thus judges reviewing a conviction - in the rare case when favorable evidence is later discovered - will give substantial weight to examining the overall fairness of the judgment of guilt.  Appellate  judgment is inevitably colored by the fact-finding and the deference given fact-finders.  Further, public safety and concerns about cost and in favor of finality of judgment also weigh against successful appeals based on nondisclosure  of evidence.

The focus therefore should be on preemptive `ex ante' measures to assure fairness.  Should we ask of prosecutors the constitutional minimum, or should we embrace the proposed statutory regime which makes favorable information disclosure presumptive - subject to reasonable exceptions such as witness security and public safety presumptive?  What is needed, as Green suggests is empirical data.  That is available.  One can compare the federal courts with the record in states and locales where disclosure of favorable evidence or of all evidence in state files is required.  We thus already have, Green argues, a kind of successful natural experiment.  This is the sort of study which Congress could ask the GAO to undertake.  If Senator Murkowski re-introduced the measure the Senate Judiciary Committee could ask the GAO to commission such a study.

Bruce A. Green Federal Criminal Discovery - a Legislative Approach