NACDL devised a model statute that would codify the Brady rule. The Fairness in Disclosure of Evidence Act does not attempt to reform criminal discovery generally, but it does seek to clarify and implement the Brady rule in each respect that case law development has made problematic.

Stop. Do you need to read another article that begins with, “Despite its fifty year history, the Brady promise remains unfulfilled”? You know that. You know the law. You know that the actual practice is far afield from what Justice Brennan might have envisioned in the noble pursuit of fairness in Brady v. Maryland.¹ 

The year 1963 saw a U.S. Supreme Court comprised of a diverse array of justices. The Court proved to be a critical element in the establishment of fundamental rights for all Americans, including criminal suspects and juvenile offenders.

Editor’s Note: Although Mike Klinkosum practices law in North Carolina, a state that provides “open-file” discovery (defined as discovery in which everything contained in the files of law enforcement and the prosecution, with the exception of work product and privileged material, is provided to defense attorneys) by statute, such was not the case prior to 2004. See N.C. Gen. Stat. § 15A-903 (2010); S.L. 2004-154, S.B. No. 52 (N.C. 2004). The techniques and strategies discussed in this article were employed by Klinkosum prior to 2004.

Editor’s Note: This article is based upon Colin Starger’s prior work on the evolution of Brady doctrine. See Colin Starger, Expanding Stare Decisis: The Role of Precedent in the Unfolding Dialectic of Brady v. Maryland, 46 Loy. L.A. L. Rev. 77 (2012).

These are the stories of real people whose lives were dramatically harmed by the government’s failure to comply with the constitutional demands of Brady.

My first truly searing experience with federal prosecutors violating the Brady rule continues to sear today, nearly a quarter century after I was introduced to the case of United States v. Jeffrey R. MacDonald. Having practiced criminal defense law since 1967, I have, of course, run across the usual array of Brady violations, but nothing I saw before MacDonald, and nothing since, has disgusted me in the same way.

Editor’s Note: Some parts of this article build upon New York Law Journal columns written by Professor Schwartz: Section 1983 Brady Claims, N.Y.L.J., April 18, 2008 at 3; Supreme Court Overturns $14 Million Verdict for Wrongful Conviction, N.Y.L.J., June 15, 2011 at 3; Wrongful Conviction Claim Barred by Prosecutorial Immunity, N.Y.L.J., June 16, 2009 at 3. This article is an original work and substantially modifies, expands, and updates the material in these columns.

The capacity of judges to use Brady to halt the conveyor belt to conviction requires that Brady violations be discovered — a challenging task that demands aggressive and persistent defense lawyering.

People might presume that Texas would have a governor and legislature that are hostile to criminal justice reform, but they would be mistaken in certain respects.

In May 2014, the NACDL Board of Directors adopted a report containing proposals to tackle problems involving obtaining meaningful access to discovery and a report discussing warrants and searches of electronic storage devices.

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.

The government’s production of millions of pages in discovery is no longer relegated to white collar cases. We cannot allow the government to coerce individuals into guilty pleas because they lack the financial resources to review millions of pages produced in response to a discovery request.

President Lisa Wayne's letter to the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security regarding discovery reform needed and misconduct brought to light in the case of Senator Ted Stevens.

President Lisa Wayne's letter to the Senate Judiciary Committee regarding discovery reform needed and misconduct brought to light in the case of Senator Ted Stevens, and referenced in the Fairness in Disclosure of Evidence Act of 2012 (S. 2197).