The Proposed Fairness in Disclosure of Evidence Act of 2012: More Cons Than Pros With Proposed Disclosure Requirements in Federal Criminal Cases

• Citation: Vol. 64 No. 3
• Publication year: 2013

The Proposed Fairness in Disclosure of Evidence Act of 2012: More Cons than Pros with Proposed Disclosure Requirements in Federal Criminal Cases

Jacquelyn Smith

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Comment

The Proposed Fairness in Disclosure of Evidence Act of 2012: More Cons than Pros with Proposed Disclosure Requirements in Federal Criminal Cases^*

I. Introduction: Brady, the Act, and Model Rule 3.8

The proposed Fairness in Disclosure of Evidence Act of 2012 (the Act) is a proposal of uniform standards for disclosing evidence in federal criminal cases that was introduced on March 15, 2012 by Senator Lisa Murkowski of Alaska.¹ The Act's stated purpose is: "To require the attorney for the Government to disclose favorable information to the defendant in criminal prosecutions brought by the United States, and for

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other purposes."² Particularly, the Act would amend Chapter 201 of title 18 of the United States Code by adding the text that is discussed below.³

On June 5, 2012, Thomas M. Susman, ABA Director of the Government Affairs Office, wrote a letter to the Honorable Patrick Leahy, Chairman of the Congressional Committee on the Judiciary, as well as the Honorable Charles Grassley, a ranking member in the Committee on the Judiciary, commending the scheduling of a hearing regarding the topics that the proposed legislation addresses.⁴ Susman described the problem that the Act addresses as, "the disturbing issue of federal prosecutors' failure to meet their constitutional obligations to provide accused persons and entities with important information critical to their ability to defend themselves."⁵ Susman then directly addressed how Brady v. Maryland⁶ has shaped federal criminal law since 1963.⁷

Brady stated the constitutional reasoning for the duty of prosecutors to disclose evidence to opposing counsel, finding "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."⁸ Then in Giglio v. United States⁹ in 1972, the Court clarified that the duty to disclose is not limited only to exculpatory evidence, but also covers evidence "affecting credibility."¹⁰ Following that decision, in United States v. Agurs,¹¹ the Court held this duty is not only in place when a defendant requests the pertinent evidence, but all the time.¹²

The Comment below addresses the shortcomings of this Act by analyzing both the arguments for and against it. A bill to prevent prosecutorial misconduct is one that is easy to support and difficult to oppose, for obvious reasons. As explained below, those who reject supporting the Act do not do so because they encourage or endorse

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wrongful convictions. Instead, the rejection of the proposal comes from its rushed and reactionary requirements that undermine firmly-established precedent regarding discovery obligations.

The proposal not only dramatically changes the materiality standard for exculpatory evidence, it also imputes knowledge to prosecutors that creates an investigative duty for offices that will be impossible to comply with. Further, it requires that prosecutors prove beyond a reasonable doubt—a reverse-standard of proof to that of the conviction burden they already carry—that they have produced such exculpatory evidence.

Under Model Rule of Professional Conduct 3.8 (Rule 3.8),¹³ prosecutors have to turn over all exculpatory evidence.¹⁴ The rule provides in comment 1, "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate."¹⁵ The comment continues, "[t]his responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons."¹⁶

However, what Rule 3.8 does not include is an imputation of knowledge on the prosecutor. This is a standard that will be further discussed below, but one that the Author believes to be unworkable. Further, under the proposal, there is a broad duty to turn over any exculpatory information, and if prosecutors fail to do so, they must show that their failure was, beyond a reasonable doubt, harmless to the defendant.¹⁷ This implicit "criminalizing" of prosecutors' misconduct is one that the Author considers to be a far overshoot of what is necessary to prevent prosecutorial misconduct. Further, it is unnecessary considering the materiality standard already in place which institutes a standard that has proved to be both workable by prosecutors and which sets a reasonable burden for showing the information not turned over would not have harmed the defendant. This standard will be further discussed below.

There are other problems with the Act that step outside of the reasonable bounds that Rule 3.8 delineates for prosecutors. The Act creates a duty to investigate—if one reads the Act literally it says that prosecutors have a duty to turn over everything exculpatory that is in possession of, or could, in due diligence, be found for the defendant.¹⁸

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This language creates an investigative function for the prosecutor that would traditionally be defense counsel's job.

Not only is the prosecutor, under the proposal, required to look for evidence that the defendant committed the crime, but also any evidence that could be exculpatory that he did not commit the crime—not just evidence that is material, but any evidence.¹⁹ This shift creates an unworkable standard because now, defense counsel, if they are acting with due diligence, will be required to check up and make sure the prosecutor (and prosecutorial team) is investigating exculpatory information as well—and turning over that information immediately.

II. History of Prosecutorial Discovery Compliance

All prosecutors have the heavy burden of ensuring justice in their pursuit of convictions of those guilty of a crime. While preparing and presenting a case, a prosecutor could easily become aware of information that could help the defendant.²⁰ That information can oftentimes be in the prosecutor's files before either the defendant or defense counsel even knows that it exists.²¹ The government often has both more and better-quality resources, as well as law-enforcement, and through the nature of its policies and procedures, the government also has very early access to "critical evidence."²² Some examples are:

a prosecutor might discover a police report of an interview with an eyewitness who stated that the defendant was not the perpetrator of the robbery; the police might tell the prosecutor that one of his key witnesses recently failed a lie detector test and then partially recanted his story; a prosecutor might learn that a laboratory test failed to link the defendant to the murder weapon and items of clothing worn by the killer; or a prosecutor at trial might hear his main witness embellish his testimony to such an extent that he is committing perjury.²³

Further, the assumption is that in these examples, the prosecutor believes wholeheartedly in the accused's guilt, and has significant evidence to support that belief.²⁴ The prosecutor has an interest and a duty in protecting the community by securing a conviction.²⁵ The duty to disclose any evidence to a defendant that is favorable to his case

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"raises difficult legal and ethical questions.²⁶ Obviously, a prosecutor does not have to share his whole file with a defendant, nor his strategies for prosecuting.²⁷

Still, a prosecutor is more than just a zealous advocate for his "client"—he represents a government that is committed to "ensur[ing] that justice is done under fair and civilized rules."²⁸ Also, failure to disclose favorable evidence is a serious violation of ethical rules that can lead to a horrible miscarriage of justice, especially in convicting the innocent or forcing guilty pleas that may not have occurred but for the withholding of evidence.²⁹

The Supreme Court has outlined rules governing this duty. The rules are often grouped as "Brady" rules, after the landmark case, Brady v. Maryland.³⁰ Brady rules apply when "a prosecutor has failed to disclose to a defendant convicted of a crime favorable evidence, has solicited false testimony, or allowed false testimony to go uncorrected."³¹ This Comment discusses how recent proposed legislation aims to regulate a prosecutor's duty to assist a defendant in obtaining exculpatory evidence, including both the benefits and the shortcomings of that regulation.

Kyles v. Whitley³² explains how prosecutors are responsible for finding the material exculpatory information in the hands of the police.³³ The Court explained that, "[w]hile the definition of Bagley materiality in terms of the cumulative effect of suppression must accordingly be seen as leaving the government with a degree of discretion, it must also be understood as imposing a corresponding burden."³⁴ This burden is one that prosecutors' policies and procedures have been developed around.³⁵ Kyles continues,

On the one side, showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation, without more. But the prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to

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gauge the likely net effect of all such evidence and make disclosure when the point of "reasonable probability" is reached.³⁶

Under this system, the traditional balance between the prosecutor and defense counsel is preserved. Justice Souter continues,

[t]his in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police. But whether the prosecutor succeeds or fails in meeting this obligation (whether, that is, a failure to disclose is in

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