Open Disclosure by Federal Prosecutors is Goal of Proposed Bill

The Center for Prosecutor Integrity (CPI), a non-profit organization which seeks “to preserve the presumption of innocence, assure equal treatment under the law, and end wrongful convictions” today released a proposed bill that would require federal prosecutors to implement an open-file policy. The bill addresses a weakness in the implementation of the Brady requirement to disclose all exculpatory evidence to the defense: Prosecutors currently determine what evidence is “material” (would likely impact the outcome of the case) and therefore subject to disclosure.

CPI’s Registry of Prosecutorial Misconduct has revealed that Brady violations —prosecutorial failure of the constitutional requirement to disclose exculpatory evidence relevant to the guilt or innocence and to the punishment of the defendant — as the leading type of misconduct by federal prosecutors.

The Federal Prosecutor Integrity Act would mandate that federal prosecutors, beginning at the time of arraignment, disclose all documents, scientific tests, witness statements, and other relevant evidence to the defense. Any additional information and evidence would need to be disclosed as the case progresses.

Open-file is not a new concept. Some state and local governments have implemented it successfully. In a February 26, 2012 editorial (here), The New York Times opined, “The Justice Department should join this movement and set a national example.”

However, this has not happened. Both The New York Times editorial and the CPI today reference the case of the late Senator Ted Stevens as a high-profile example of federal prosecutorial misconduct including stunning Brady violations. In response to this and other cases, the Justice Department has increased training and requirements that U.S. Attorneys offices define their policies regarding Brady, but these have not been sufficient to solve the problem of violations.

The US Department of Justice has reported that ninety-six percent of federal criminal cases have resolution via plea bargains. Failure of prosecutors to disclose exculpatory evidence in these negotiations places defendants in the inequitable position of ignorance regarding the evidence against them and their opportunity to prevail at trial.

In his dissenting opinion in United States v. Olsen filed December 10, 2013, Alex Kozinski, chief judge of the U.S. Court of Appeals for the 9^th Circuit, declared, “There is an epidemic of Brady violations abroad in the land.”

He added later in the opinion, “Some prosecutors don’t care about Brady because courts don’t make them care.”

The Federal Prosecutor Integrity Act includes measures to add prosecutorial accountability to a system in which Brady violations carry little risk of sanctions. With passage of the CPI bill, federal prosecutors who skirt the full disclosure obligation would be subject to a court’s ordering a new trial, entering a “not guilty” verdict, or imposing monetary sanctions. The bill also provides defendants the right to take civil action against a prosecutor who withholds exculpatory evidence.

Among the key provisions of the CPI bill is an option that addresses a common criticism of those who oppose open file. Prosecutors would be able to obtain a protective order to withhold information that would place a witness in danger.

While the bill was written for federal prosecutors, the Center for Prosecutor Integrity suggests that it can be adapted for state level prosecutors.

In a justice system in which one side—the prosecution—generally has the advantage of financial, personnel, and other investigative resources for the case investigation, permitting prosecutors to determine which fruits of the investigation are shared with the defense increases the risk of wrongful convictions, especially if the culture of the prosecutorial office elevates winning the case over seeking the truth. Unfortunately, wrongful convictions and Brady violations have revealed that this is too often the case.

The CPI bill can be accessed (here).