Fairness in Disclosure of Evidence - NJ Law Journal Board backs Murkowski initiative

The New Jersey Law Journal Editorial Board has called on the state's United States Senators to join with Sen. Lisa Murkowski (Alaska) to adopt a standard of evidence disclosure broader than the constitutional minimum.  In Brady v. Maryland (1963) the high court compelled disclosure to criminal defendants of "material" and "exculpatory evidence".  The New Jersey experience - an `open file' disclosure of all but necessarily confidential sources - shows the proposed standard to be a modest and workable step.  - GWC
Fairness in Disclosure of Evidence:

Prompted by the disclosure that U.S. Department of Justice lawyers hid favorable evidence from the defense in the prosecution of the late Sen. Ted Stevens, the Fairness in Disclosure of Evidence Act was introduced last year. The measure had bipartisan support but died in committee. Sen. Lisa Murkowski, R-Alaska, plans to reintroduce the bill, the premise of which is to expand the duty to hand over evidence, beyond the constitutional mandate of Brady v. Maryland (1963) to disclose material exculpatory evidence.
Fifty years of experience has proved that definition to be highly subjective and therefore problematic. The Murkowski bill would declare a duty to disclose all evidence "that may reasonably appear to be favorable to the defendant" with respect to the determination of guilt, any preliminary matter before the court or the sentence to be imposed....At hearings on the bill last year, 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 is quite cautious. It 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 the mid-ground of requiring the production of all "favorable evidence" would advance the defendant's interest in making a well-informed decision whether to plead guilty and, if necessary, mount an effective defense at trial.
Fordham law professor Bruce Green, a former federal prosecutor, suggests in an article in the Mercer Law Review that we are perhaps witnessing the old "sporting competition" attitude rather than the view that the prosecutor's duty is to do 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 nondisclosed 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 standard set in Strickland v. Washington(1984) 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....
The focus therefore should be on pre-emptive measures to assure fairness. We should not be satisfied with the constitutional minimum from our prosecutors. We should embrace the proposed statutory regime which makes favorable information disclosure — subject to reasonable exceptions such as witness security and public safety — presumptive.
What is needed, as Green says, is empirical data, which 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 a kind of successful natural experiment.
We support the bill and urge our state senators to join the reform effort.

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