Discovery Reform

Discovery rules that leave defendants in the dark about the evidence against them undermine fairness and due process and increase the risk of wrongful convictions. Criminal discovery can be divided into two categories: (1) disclosure of so-called “exculpatory evidence” that is constitutionally required under the Supreme Court’s 1963 Brady opinion and (2) disclosure that is required by statute or court rule. There is great variation among jurisdictions regarding the amount of discovery required by statute/rule and even the Brady decision.

The federal system and most states allow prosecutors to withhold evidence needed by the defense. To encourage reforms, NACDL has adopted two model bills: one prescribing open-file discovery and another clarifying the Brady rule by requiring the disclosure of all favorable evidence.

NACDL MODEL LEGISLATION

NACDL Model Order Pursuant to the Due Process Protections Act of 2020 (January 2021)
NACDL Model Open Discovery Bill (May 2014)
Fairness in Disclosure of Evidence Act (Introduced in the U.S. Senate in March 2012)

Michael Heiskell's Open Letter Concerning Prosecutorial Accountability

NACDL Board Resolution Promoting Systemic Reform to Render Prosecutors Accountable for Misconduct

More on Prosecutorial Accountability

LEGISLATION & POLICY

State Legislative Victories
Federal Reform Legislation
NACDL Comments to the Judicial Conference Advisory Committee on Criminal Rules on proposed amendments to pretrial expert disclosure (February 2021)
Reform Proposals
- Brady-Giglio Guide for Prosecutors, American College of Trial Lawyers Federal Criminal Procedure Committee (2021)
Pending State Legislation
Priority Federal Legislation
Department of Justice Policies

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News Releases

News Release ~ 04/01/2019

Nation’s Criminal Defense Bar Welcomes Criminal Justice Reforms Adopted by the State of New York -- Washington, DC (Apr. 1, 2019) – On Sunday, March 31, Governor Andrew Cuomo and the New York State Senate and Assembly reached agreement concerning multiple, significant pretrial criminal justice reforms as part of the state’s FY 2020 budget package. These changes will take effect in 2020. The reforms concern speedy access to trial, discovery in criminal cases, and bail and pretrial release.
News Release ~ 09/06/2018

Supreme Court of Virginia Overhauls Criminal Discovery Rules; Major Victory for Broad, Bipartisan Coalition of Criminal Justice Reformers – Washington, DC (Sept. 6, 2018) – Late yesterday, Sept. 5, 2018, the Supreme Court of Virginia issued amended criminal discovery rules set to take effect July 1, 2019, marking the first such overhaul in decades. Specifically, the Court issued amended Rules 3A:11 (Discovery and Inspection) and 3A:12 (Subpoena) of the Rules of the Supreme Court of Virginia.
News Release ~ 01/17/2018

Department of Justice Successfully Blocks Public Access to Its Federal Criminal Discovery Blue Book – Washington, D.C. (Jan. 17, 2018) – Earlier today, the Department of Justice (DOJ) filed notice of its decision not to appeal the release of an extremely limited portion of its Federal Criminal Discovery Blue Book. The portion of the Blue Book that the Court found was not work product was a tiny fraction – what amounts to not much more than a handful of pages – out of a manual that contains at least 265 pages.

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