Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases

Recently, NACDL and the Veritas Initiative at Santa Clara Law School released a major Brady study, titled-above.  NACDL’s description of the report reads:

Washington, DC (Nov. 17, 2014) – Today, at the National Press Club in Washington, DC, NACDL is officially releasing its latest report, Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases, a major study produced jointly with the VERITAS Initiative at Santa Clara Law School. Today’s event will feature comments by NACDL President Theodore Simon, NACDL Executive Director Norman L. Reimer (who also will moderate the event), and special guests David W. Ogden, former Deputy Attorney General who is now a partner at the WilmerHale firm, and the Hon. Alex Kozinski, Chief Judge of the Ninth Circuit Court of Appeals. The report’s co-authors – VERITAS Initiative Director and Professor Kathleen “Cookie” Ridolfi, NACDL White Collar Crime Policy Counsel Tiffany M. Joslyn, and VERITAS Initiative Pro Bono Research Attorney Todd H. Fries – will also be discussing their findings and recommendations. NACDL Executive Director Norman Reimer will moderate the discussion.

“This groundbreaking study documents one of the major problems facing the nation’s criminal justice system today: the failure to ensure full, fair and timely disclosure of information favorable to an accused person in a criminal action. It is a significant step towards achieving the vital reforms necessary to guarantee a fair trial for every accused person,” NACDL President Theodore Simon said.

Over 50 years ago, in Brady v. Maryland, the Supreme Court declared that failure to disclose favorable information violates the constitution when that information is material. This guarantee, however, is frequently unmet. In courtrooms across the nation, accused persons are convicted without ever having seen information that was favorable to their defense. The frequency with which this occurs and the role it plays in wrongful convictions prompted NACDL and the VERITAS Initiative to undertake an unprecedented study of Brady claims litigated in federal courts over a five-year period. The study asked: What role does judicial review play in the disclosure of favorable information to accused? The results revealed a troubling answer—the judiciary is impeding fair disclosure in criminal cases and, in doing so, encouraging prosecutors to disclose as little favorable information as possible.

The study’s findings are extensive and dramatic including, for example:

  • The materiality standard produces arbitrary results and overwhelmingly favors the prosecution. Indeed, in those decisions where the prosecution failed to disclose favorable information, it still won 86% of the time, with the court concluding that the information was not material.
  • Courts almost never find Brady was violated by the late disclosure of favorable information. Of the 65 decisions that involve late disclosure of favorable information, only one resulted in a Brady violation finding.
  • Favorable information is more likely to be disclosed late or withheld entirely in death penalty decisions. Favorable information was never disclosed or disclosed late by the prosecution in 53% of decisions involving the death penalty, but only 34% of all the decisions studied.

In his dissent to the Ninth Circuit’s 2013 decision denying a rehearing en banc in United States v. Olsen, Chief Judge Alex Kozinski acknowledged that “[t]here is an epidemic of Brady violations abroad in the land” which in his view, “[o]nly judges can put a stop to.” Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases documents that epidemic and sets forth a prescription for how to contain and ultimately cure it. As former Deputy Attorney General David W. Ogden wrote in his foreword to this report, “judges have an indispensable role and obligation to oversee the system’s guarantees of fairness and to make sure that its truth- and justice-seeking mission is fulfilled in each case.”

According to report co-author Cookie Ridolfi, “despite the clear correlation between withholding evidence and wrongful conviction, the results of this study demonstrate that courts persist in tolerating prosecutors’ failure to timely disclose favorable information.” “Judicial indifference toward late disclosure fosters non-compliance with disclosure obligations. The data strongly suggests that the practice of late disclosure has become a trial tactic rather than an allowance for exceptional circumstances,” added co-author Todd Fries. Co-author Tiffany M. Joslyn was clear, “at its core, judicial adherence to the materiality standard following conviction encourages prosecutors to use that same back-end standard to narrow their front-end disclosure obligations. Our study not only confirms this, it demonstrates that front-end reform is necessary and overdue.”

The report concludes by offering three reform proposals that would serve as mechanisms for increasing fair disclosure in criminal cases. First, in each case defense attorneys should request, and judges should grant ethical rule orders – orders for the prosecution to disclose all favorable information in accord with American Bar Association Model Rule 3.8(d). Second, the judicial rules and policies should be amended to require fair disclosure of information. Finally, the most effective mechanism would be to adopt legislation codifying fair disclosure in criminal cases.

Complete copies of the report, executive summary, and fact sheet are available at www.nacdl.org/discoveryreform/materialindifference. And by sometime on Tuesday, November 18, 2014, a link to the complete video of today’s release event featuring Chief Judge Kozinski, former Deputy Attorney General David Ogden, NACDL President Theodore Simon, and the report’s co-authors will also be available at that web address.

Here is C-SPAN’s coverage of the report’s release:  http://www.c-span.org/video/?322781-1/discussion-fair-disclosure-criminal-trials

One response to “Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases

  1. ¿ Why not eliminate the prosecutors who choose to not turn over such evidence ?
    It saves the trial and reviewing courts the time and hassle of evaluating whether the hidden evidence was “material” •

    Kindly submitted , Nemo Me Impune Lacessit

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