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.

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.

NACDL sued the Justice Department seeking disclosure of its Federal Criminal Discovery Blue Book.  This publication reportedly covers the law, policy, and practice of prosecutors’ disclosure obligations.  The U.S. Court of Appeals upheld the lower court’s decision that the publication is protected work product. Included here are key pleadings filed in the National Association of Criminal Defense Lawyers' (NACDL) Freedom of Information Act (FOIA) lawsuit seeking the Department of Justice's Federal Criminal Discovery Blue Book.

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.

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.

Comments to the Judicial Conference Advisory Committee on Criminal Rules regarding proposed amendments to Rule 16 of the Federal Rules of Criminal Procedure.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Respondents.

Argument: First, there must be a specific reason not to apply the Eighth Amendment to the Constitution to servicemembers. As there is no issue of military importance that excludes servicemembers from the protections of the Eighth Amendment, rape of an adult cannot be an “offense punishable by death.” Under the Supreme Court’s interpretation of the Cruel and Unusual Punishment Clause of the Eighth Amendment, the crime of rape of an adult cannot be punishable by death. Petitioner has not met its burden to provide a military-specific exception for the application of the Eighth Amendment to servicemembers. Here, the Petitioner offers policy prescriptions and “national security” reasons which are insufficient to deprive a service-member of his or her constitutional rights. Further, canons of statutory interpretation require that Article 43 must be read to protect applicable constitutional rights. Specifically, sections in the same statutory scheme should be read in pari materia, or interpreted together. Article 43, at the time of Respondents’ alleged offenses, had no statute of limitations for crimes punishable by death, including rape, but established a five-year limitation otherwise; however, Article 55 prohibits cruel and unusual punishment, mirroring the Eighth Amendment. Applying Supreme Court precedent that precludes death as a punishment for rape of an adult, Article 43 read in conjunction with Article 55 requires that rape was subject to a five-year statute of limitations at the time of the alleged offenses. Lastly, civilian law must inform the interpretation of the UCMJ. The CAAF may not freely disregard Supreme Court precedent without a “legitimate military necessity or distinction.” Therefore, the CAAF’s decision to reverse Respondents’ convictions should be affirmed.

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

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]