NACDL comments on S.B. No. 653, an act concerning open-file disclosure in criminal cases.

Fifty years ago in Brady v. Maryland, the U.S. Supreme Court held that the failure to disclose favorable information to a defendant in a criminal prosecution violates the constitution when that information is material to guilt or punishment. This common law standard, often referred to as the Brady rule, has created confusion about what information must be disclosed, when it must be disclosed, and what remedies exist when favorable information is not disclosed.

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.

Links to significant reports and academic articles on discovery practices and reform proposals

Collects discovery reform proposals and model laws from various organizations

The Due Process Protections Act of 2020 amends the Federal Rule of Criminal Procedure to require federal district judges to enter an order in each case confirming prosecutors' obligation to disclose evidence exculpatory to the defense under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, and setting forth consequences for failing to do so. In response to this new law, NACDL's Discovery Reform Task Force drafted and promulgated a Model Standing Discovery Order Pursuant to the Due Process Protections Act.

(Pre-Search Instructions and Post-Search Reasonableness)

A Report by NACDL’s Fourth Amendment Advocacy Committee Reporter, Steven R. Morrison [Released July 2014]

The Fourth Amendment has entered the digital age. New surveillance technologies and programs — from GPS tracking devices to automated license plate readers to bulk data collection — have upended traditional law enforcement practices and created new challenges for defense lawyers. This report offers an overview of this symposium and the substantive areas of concern related to new technological and legal changes that impact Fourth Amendment protections in criminal cases. [Released June 2016]

Many recent cases have exposed the fact that federal prosecutors, whether through negligence or by design, all too often fail to abide by their constitutional duty to disclose information favorable to the defendant. To help ensure fairness in federal criminal proceedings, the Board of Directors of NACDL has endorsed model legislation drafted by NACDL's Discovery Reform Task Force that would require the government to disclose all information favorable to the accused in relation to any issue to be determined in a federal criminal case. [Released May 2011]

The integrity of the criminal justice system relies on the guarantees made to the actors operating within it. For the accused, the guarantee of fair process includes not only the right to put on a defense, but to put on a complete defense. The U.S. Supreme Court recognized the importance of this guarantee over 50 years ago, in Brady v. Maryland, when it declared that failure to disclose favorable information violates the constitution when that information is material. This guarantee, however, is frequently unmet. [Released November 2014]

NACDL created The Commission to Reform the Federal Grand Jury, drawing on the expertise of a variety of professionals throughout the criminal justice system. Commissioners spent two years examining the need for changes in the grand jury process and produced a Federal Grand Jury Bill of Rights based on their findings. The ten reforms set forth in this Bill of Rights, largely echoing those proposed by the American Bar Association (ABA) more than 20 years ago, would restore balance to the grand jury process and better protect against unwarranted prosecutions. [Released May 2000]

NACDL will seek to advance the measures and principles embodied in the model reform legislation.

Race Data Matters: Using Expert Testimony and Social Science Data about Discriminatory Policing to Win Pretrial Motions: Part II presented by Alison Siegler, Clinical Law Professor, University of Chicago Law School

Race Matters I: The Impact of Race on Criminal Justice
September 14-15, 2017 | Detroit, MI

NACDL is dedicated to securing meaningful, systematic reform and to preventing the insidious harm caused when a prosecutor carelessly, or purposefully, fails in his or her duties to us all. Prosecutorial overreaching and misconduct distort the truth-finding process and taint the credibility of the criminal justice system, including the outcomes they generate. When prosecutors’ fundamental obligations are ignored and individuals’ rights are violated in order to secure a conviction, little can be done to rectify the wrongs inflicted upon the individuals involved and on the system itself.

Virginia Discovery Reform