The authors offer a proposal that, if adopted by state and federal judges, would solve many of the problems that have hindered meaningful compliance with Brady over the last 50 years.

In March 2012, Sen. Lisa Murkowski introduced a bill in Congress called the Fairness in Disclosure of Evidence Act of 2012. The bill would codify the duty of the government to promptly disclose evidence that is favorable to the defense. If passed, this legislation may provide strong impetus to a discovery reform effort on the state level.

How can a defense attorney minimize the potentially long-lasting impact of burdensome pretrial release conditions? How can the defense attorney engage in meaningful review, especially when the assistant U.S. attorney refuses to produce an exhibit list?

Although the prosecution often uses social media evidence to show “intent” for all manner of human conduct, the legal challenges to social media evidence are growing in strength.

and Where Do We Go from Here?

Rule 5(f)(1) requires judges to inform prosecutors of their obligation to produce exculpatory information and provides that courts may hold prosecutors accountable if they do not comply with a Brady order. Rule 5(f)(2) requires that each circuit council promulgate a Model Order that a district court “may use as it determines is appropriate.”

The amended Federal Rule of Criminal Procedure 5 requires that in all criminal proceedings, at the first scheduled court date at which both the prosecutor and defense counsel are present, the judge must issue an order confirming the prosecutor’s disclosure obligations under Brady v. Maryland. Defense lawyers should consider NACDL’s Model Standing Order on the Prosecution’s Brady Obligations.

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.

Many years ago I was asked to talk at an annual meeting of a statewide prosecutors’ association. They wanted me to speak from a defense perspective about common prosecutorial mistakes. Really, this was their idea. I accepted happily.

Sadly, the struggle to obtain information favorable to an accused that rests in the hands of prosecutors and their agents rages on 50 years after the Supreme Court declared in Brady v. Maryland that 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. And so the 50th anniversary of Brady, which occurred on May 13, 2013, is less a celebration than a lamentation.

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.