Federal Criminal Discovery Reform: a Legislative Approach
| Publication year | 2013 |
Federal Criminal Discovery Reform: A Legislative Approach
Bruce A. Green
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Suppose that federal prosecutors have conducted an investigation culminating in an indictment. Although the prosecutors believe that they have enough evidence to secure a conviction and are personally convinced that the defendant is guilty, some of the evidence they have collected is favorable to the defendant, because it tends to show that the defendant is innocent or that prosecution witnesses should not be believed. Must prosecutors disclose the favorable evidence to defense counsel to use in investigating, advising the defendant, plea negotiations, or trial? Under current federal law, the answer is generally "no." Unless favorable evidence falls within one of several narrow categories, or the evidence might be probative enough to produce an acquittal, federal prosecutors can keep it to themselves.1
Proponents of broader federal criminal discovery law express two principal concerns about prosecutors' existing disclosure obligations. The most crucial one is that disclosure is now too limited to ensure fair outcomes and provide a fair process in criminal cases.2 The other is that prosecutors do not universally comply even with their existing obligations,3 whether because of the vagueness, inconsistency, or
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complexity of the discovery law4 or because of the failings of individual prosecutors or their offices.5
Federal law governing prosecutors' disclosure obligations comes from various sources, and so additional obligations might be adopted in various ways. The Supreme Court might read the Constitution more demandingly;6 the federal judiciary might augment discovery under the Federal Rules of Criminal Procedure7 or under local rules;8 or federal courts might enforce ethics rules calling on prosecutors to disclose favorable evidence and information.9 In general, the Department of
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Justice has opposed the expansion of defendants' discovery rights in any of these directions.10
Another possible route to reform—federal legislation—is currently being explored. Last year, Senator Lisa Murkowski of Alaska proposed the Fairness in Disclosure of Evidence Act of 2012,11 which would generally require federal prosecutors to disclose favorable evidence to the accused.12 The proposal came largely in response to the disastrous federal corruption prosecution of U.S. Senator Ted Stevens of Alaska. In that case, the defense team discovered after the jury's guilty verdict that prosecutors had suppressed important exculpatory evidence, which led the court to dismiss the charges with the government's consent and instigate an investigation of the prosecutors.13 The proposed congressional response seems to call for only a modest expansion of prosecutors' disclosure obligations, and to be far less demanding than the "open file" discovery required by law in some states and employed by some state and local prosecutors as a matter of discretion.14 Nonetheless, the
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Department of Justice dispatched its second highest ranking representative, Deputy Attorney General James Cole, to testify against the bill.15 This Article discusses the proposed legislation and various arguments that might be made for and against it. It begins by briefly discussing the current scope of federal criminal discovery. It then describes the legislative proposal and the competing testimony of its sponsor and the Deputy Attorney General at the initial hearing concerning it. Finally, in the context of a recent federal criminal case raising disclosure questions, this Article addresses some of the fundamental issues raised by the legislation.
A. Federal Criminal Discovery Under Current Law
As many others have noted, the limited scope of discovery in federal criminal cases cannot easily be reconciled with the liberality of discovery in modern civil litigation.16 In the nineteenth and early twentieth centuries, civil litigators could play their cards close to the vest by interviewing witnesses who were willing to talk to them, gathering documents and physical evidence, using favorable evidence and information to their advantage at trial, and keeping unfavorable evidence and information to themselves.17 Contemporary civil proce-
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dure rules, however, afford litigants relatively easy access to relevant evidence and information in the other side's possession as well as opportunities to acquire relevant evidence and information from third parties.18 Parties can obtain relevant information from opposing parties and witnesses through interrogatories, depositions, document requests, and subpoenas, resulting in parties having relatively liberal access to each other's facts, witnesses, and documents.19 Lawyers can still keep their strategies and mental processes secret, but not their evidence.20
The liberality of civil discovery grows out of an essential premise of adversarial proceedings, which is that the truth will emerge through a contest in court between parties who present the best evidence for their respective positions.21 Parties build their cases "brick by brick" through the presentation of relevant evidence that, taken as a whole, constructs their theories of the case.22 Unlike in inquisitorial systems, where judges take an active role in the fact-finding process,23 judges and jurors in an adversarial system evaluate evidence that the lawyers gather and present but they cannot look for more on their own.24 Consequently, when parties lack access to favorable evidence, the fairness and reliability of the adjudication is called into question. Liberal discovery is considered essential to enable the parties to present their best cases as well as to enable them to make informed settlement decisions.
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In the federal criminal process, in contrast, a "sporting" approach still prevails.25 Before trial, the government has no obligation to tell the defense with whom the prosecution has spoken, who has relevant testimony, or who the prosecution will call as witnesses. The defense cannot depose witnesses to gather relevant information on its own. The defense lacks the investigative tools and, in most cases, the funds to try to replicate the government's investigation. Consequently, the government may acquire substantial evidence, including exculpatory evidence, that the defense cannot see before trial, and even much that the defense will never see. Although state laws vary, many states provide the defense far greater access to evidence. In many states, for example, the defense is entitled to a list of witnesses.26 In some, the defense is entitled to the entire prosecution file27 or to an opportunity to depose witnesses before trial.28
This is not to say that the defense is left empty-handed in federal criminal cases. As a constitutional minimum, the United States Supreme Court held in Brady v. Maryland,29 and a line of decisions following it, that the prosecution must disclose certain "material" evidence and information that is favorable to the accused—that is, certain evidence and information that either exculpates the defendant or impeaches prosecution witnesses.30 Insofar as the material evidence
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is useful only for impeaching prosecution witnesses, and not otherwise for establishing a defense, the prosecution may wait until trial to disclose it.31
Brady and subsequent decisions limit prosecutors' constitutional obligation in various ways,32 but the "materiality" element is the most significant limitation on the disclosure duty. The Supreme Court has explained materiality somewhat differently in different opinions, but essentially, at least for purposes of appellate review, the Supreme Court has said that evidence is not material unless it might have tipped the balance between a conviction and an acquittal,33 or, to put it slightly differently, unless the government's suppression of the evidence
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"undermines confidence in the outcome of the trial."34 One could take the view that, like a "harmless error" standard, materiality is only a standard of post-conviction review—that is to say, that prosecutors must disclose all favorable evidence in connection with a trial but that afterwards a conviction will not be overturned unless, in hindsight, the withheld evidence was material.35 Some lower courts read the Brady line of cases this way.36 But most lower courts interpret the Supreme Court decisions to permit prosecutors to withhold favorable evidence unless it is material.37 This is how the Department of Justice reads the high court's opinions as well.38
If materiality is regarded as the pre-trial as well as the appellate standard, then a federal prosecutor who seeks merely to abide by the constitutional minimum must predict before trial what a court will say after trial about the utility of favorable evidence in the government's possession. The question will be whether, later viewing the favorable evidence in the context of the trial evidence, a court will conclude that
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the prosecution's failure to disclose the evidence "undermine[d] confidence in the outcome of the trial" because the evidence might have led to an acquittal.39 Prosecutors must make that prediction before trial without knowing precisely how its own case will unfold, what evidence the defense will present—perhaps even what the theory of the defense will be—and how the favorable evidence might be used by the defense. As the Supreme Court has recognized, the prosecutor's ex ante determination is inherently imprecise, and so "the prudent prosecutor will resolve doubtful [cases] in favor of disclosure."40 The Department of Justice internal guidelines on discovery similarly encourage federal prosecutors to err on the side of disclosure.41 But there are reasons why not all prosecutors do so,42 including...
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