A New York Times editorial yesterday properly urged that the Justice Department require federal prosecutors’ files be open to the defense. While Brady v Maryland requires disclosure of exculpatory evidence, too often prosecutors at all levels skirt this requirement and courts dismiss the undisclosed information as not “material,” a subjective call that can be flawed as revealed in many DNA-proven wrongful convictions.
As the editorial points out, 96% of federal cases are resolved in plea bargains. The lax application and court enforcement of Brady puts defendants at the considerable disadvantage of not knowing the evidence against them in plea negotiating. The editorial advocates an open files federal rule, which would be an important example for the states.
Ohio and North Carolina were mentioned as two states that now have open files rules. At the state level this requires leadership; Ohioans can thank the late Chief Justice Thomas Moyer, who championed this rule change, adopted by the high court’s rules committee in July 2010.