A Loud Call for Federal Discovery Reform in the U.S….

Yesterday The Constitution Project issued this report, signed by former federal prosecutors, federal judges and others, outlining a pattern of Brady violations by federal prosecutors, and calling for Congressional hearings to amend the federal discovery rules.  The report begins:

We, the undersigned, are current and former judges, prosecutors, law enforcement officers, defense lawyers and others, all with substantial professional experience within the criminal justice system. We call upon Congress to address the persistent problems with discovery in the federal criminal justice system by immediately enacting legislation that clarifies federal prosecutors’ obligations to disclose information to the defense and that provides appropriate remedies when prosecutors fail to do so.

Over the past few years, we have seen a troubling number of cases involving failures to disclose evidence to the defense pursuant to Brady v. Maryland and its progeny. Most notable was the prosecution of the late Senator Ted Stevens. The U.S. Department of Justice (DOJ) moved in April 2009 to set aside Senator Stevens’s 2008 conviction and dismiss the indictment after discovering that prosecutors had withheld evidence they were required to disclose—evidence that would have impeached the trial testimony of a key government witness and bolstered the Senator’s defense. While the complete findings of a subsequent, court-ordered investigation into the prosecution have not yet been publicly revealed, we know the investigation concluded that the prosecution had been “permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated [Senator Stevens’s] defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.”1

In addition to the Stevens case, a string of recent cases has emerged in which the defense eventually discovered undisclosed evidence that was constitutionally required to have been disclosed. For example, continue reading