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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.
Legislation & Policy
- Legislative Victories
- Federal Reform Legislation
- Reform Proposals
- Pending Legislation
- Department of Justice Policies
- Reports & Research
- The Champion Brady Issue (May 2013)
- Interview with Senator Stevens' Counsel
- NACDL's "America Needs Sensible Discovery Reform" Webcast
Federal Criminal Discovery Blue Book
NACDL sued the Justice Department seeking disclosure of its Federal Criminal Discovery Blue Book. This publication reportedly covers the law, policy, and practice of prosecutors’ disclosure obligations. The U.S. Court of Appeals upheld the lower court’s decision that the publication is protected work product. See the pleadings.
NACDL Report on Discovery Enforcement in the Courts
On November 17, 2014, NACDL released 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.
Pattern Cross-Examination of Expert Witnesses: A Trial Strategy & Resource Guide
In a criminal trial, cross-examination of the prosecution’s forensic expert may make the difference between victory or defeat.
2020 Sample Motions Collection Update
NACDL’s 2020 Sample Motions Collection is the follow-up to our wildly popular 2019 Sample Motions Collection and contains the newest and most recent additions to our ever-expanding Sample Motions library.
State v. Stone - A Case Study on Child Sexual Molestation & Sexual Battery
The criminal defense attorney tasked with defending such a case has to be prepared to not only show reasonable doubt, but to answer this question: If it did not happen, how is it that the child believes it did happen?
POZNER ON CROSS: Advanced Cross of Experts & Officers in DUI Cases
It’s not your strong opening argument. It’s not how many of your impassioned objections the judge sustains. It’s not even how you tie your theory of the case together with a dazzling closing statement bow. What wins your trial is your cross.
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- From the President: Unable to Bear the Weight of the ‘Document Dump’: A Heavy Burden on Individuals
Opening the Black Box: Defendants’ Rights to Confront Forensic Software
Forensic software is used in the criminal justice context to make assertions about the presence and nature of DNA, to deploy police resources to certain areas, or to guide bail and sentencing determinations. Software, however, is far from impartial or infallible. The authors explain why law and public policy require disclosure to the public and independent experts of the software source code and other software development records, including training data sets.
E-Discovery and Use of Digital Evidence
Rule 16 of the Federal Rules of Criminal Procedure is the primary means by which defense attorneys can force the government to disclose the electronically stored information (ESI) they need. Oftentimes the government will produce ESI in a format that is not searchable. Moreover, the government may not reveal the name of the software needed to review the discovery. The defense team should bring DOJ-approved recommendations concerning ESI to the judge’s attention so that it can obtain the discovery it needs. Pursuant to recommendations by the Joint Working Group on Electronic Technology in the Criminal Justice System, the defense should consider requesting a “meet and confer” session with the government to discuss (1) what ESI is available, (2) in what format it will be produced, and (3) when it will be produced.
A Creative Approach for Obtaining Documentary Evidence From Third Parties
The importance of a defense lawyer having access to documents in the early stages of trial preparation is hard to overstate. When documents the defense needs are in the possession of a third party, however, defense counsel faces an unjustified barrier to obtaining the documentary evidence. The authors address the outdated jurisprudence that has created an obstacle for defense counsel and discuss the reform advocated by commentators and judges.
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.
- "ESI and the Unforeseen Consequences of the New Discovery Laws,"
- "Prosecutors Blame Discovery Reform Law For Overtime, Tax Hikes, And A Murder ,"
- "Prosecutorial Misconduct: Getting Away With Murder,"