Senate Judiciary Committee Chairman Patrick J. Leahy (D-VT) called a hearing June 6 to examine S. 2197, the Fairness in Disclosure of Evidence Act of 2012, ABA-supported legislation that would codify a clear uniform standard for disclosure of evidence by federal prosecutors that may be favorable to a defendant in a criminal prosecution.
This legislation originated in large part in response to prosecutorial misconduct found in the 2008 trial of the late Sen. Ted Stevens (R-Alaska). Stevens was convicted of accepting excessive gifts, but the Department of Justice (DOJ) vacated the conviction in 2009 due to the prosecution’s failure to properly disclose evidence.
The bill would create a nationwide standard to implement longstanding Supreme Court decisions on the duty to disclose. The 1963 Supreme Court decision in Brady v. Maryland, 373 U.S. 83 (1963) enunciated the constitutional basis of the duty of prosecutors to disclose evidence to the defense, and Giglio v. United States, 405 U.S. 150, 154 (1972), clarified that a prosecutor’s duty to disclosure is not limited to exculpatory evidence and covers evidence affecting credibility. A third case, United States v. Agurs, 427 U.S. 97 (1976), held that the prosecution’s constitutional duty to disclosure is not limited to situations where the defendant made a specific request for the relevant evidence.
The ABA has long advocated for a codified standard of disclosure under Brady and its progeny and recently praised Sen. Lisa Murkowski (R-Alaska) for introducing S. 2197. Murkowski, testifying at the hearing in support of her bill, explained the necessity for enacting a federal standard and has said that while she believes that “most federal prosecutors are adhering to the law, it’s clear the rules in place are not preventing ‘hide the ball’ prosecution in cases across the country.” Murkowski also mentioned the ABA’s support for the legislation in addition to many other organizations that feel one uniform policy has become imperative.
The legislation would provide that in a federal criminal prosecution, the prosecutor must provide to the accused any favorable information that is either in the possession of the prosecution team or would become known to the prosecutor through the exercise of due diligence, without delay after arraignment. The bill would provide a fair mechanism by which prosecutors could seek a protective order in a case in which there is a reasonable basis to believe that disclosure would endanger a witness.
ABA Governmental Affairs Director Thomas M. Susman in a June 5 letter said that “the disturbingly high incidence” of prosecutorial misconduct as well as the countless stories left undiscovered and untold provide “clear evidence that federal prosecutors are failing to discharge their constitutional obligation under Brady, whether as a result of intentional tactical decisions, negligence or a misunderstanding of their obligations.”
S. 2197, according to the ABA, will safeguard defendants from an unfair prosecution and reduce the number of mistrials due to prosecutors not meeting their obligations under Brady and Giglio. The legislation also would make clear that failure to abide by Brady obligations is a serious breach of the government’s responsibilities and would give judges a broad range of remedies, including postponing or adjourning the proceedings, excluding or limiting testimony or evidence, ordering a new trial, or dismissing the case with or without prejudice.