We are in the era of electronic discovery and ever-increasing information dumps. Defense lawyers are being provided with responses to discovery requests that contain terabytes of information. How do we advise a client concerning the strength or weakness of the government’s case if we must first examine and organize a terabyte of information?

(But First, Let’s Define What This Means)

The criminal legal system is broken and will remain so until those with power to effect change listen to the people who, for decades, have been marginalized, abused, and victimized by this financially segregated and socially biased system.

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.

Many defense lawyers have experienced prosecutorial misconduct. In confronting the misconduct of prosecutors, defense lawyers must be up to the task of litigating it and making the necessary record to preserve it.

Defense attorney Diana Parker writes that dismissals of federal criminal cases often arise from prosecutorial misconduct in areas related to the government’s failure to create or produce discovery. She opines that the federal government should be confident and liberal in making full disclosure in its cases because, presumably, the government critically examined the cases before bringing charges.

Prosecutors hold the power to destroy reputations and revoke the personal liberties of any citizen, whether or not that citizen is guilty of anything. Such power should be used judiciously.

Brady v. Maryland is 60 years old, but defense lawyers still are not receiving all the Brady evidence that is available. Thousands of individuals have been exonerated by DNA and other evidence, and Brady violations have contributed to the injustices suffered. For this reason alone, defense lawyers must be proactive in their Brady explorations. Federal defender V. Natasha Perdew Silas explains what being proactive means.

in Modesto

Frank Carson is a classic example of a defense lawyer who stood strong and held the line for liberty every day in courtrooms across the United States.

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.

To what extent, if any, does Brady apply in the plea bargaining process?

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.