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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.

Legislation & Policy

See NACDL Comments to the Judicial Conference Advisory Committee on Criminal Rules on proposed amendments to pretrial expert disclosure (February 2021)

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