NACDL frequently writes to members of Congress, the Department of Justice, and the president on fourth amendment issues. These letters have been collected and are available for download by clicking on the titles below.

NACDL comments to the Judicial Conference of the United States Committee on Rules of Practice and Procedure, Foreign Intelligence Surveillance Court (FISC) Rules Committee, and FISC Presiding Judge regarding proposed amendments to FISC Rules of Procedure 7(j); 11(d); 13(a)(4), (a)(S) & (b)(4); 17(b), (c) & (d); 62(a); and 63.

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.

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]

Collects discovery reform proposals and model laws from various organizations

Brief in Support of Appellant of Amici Curiae National Association of Criminal Defense Lawyers, Maryland Criminal Defense Attorneys Association, and the Innocence Network.

Argument: NACDL’s amicus brief argues that the State’s misconduct in this case was truly startling; indeed, it is among the most serious examples of prosecutorial misconduct in amici’s collective experience.  The record shows that the prosecution: (1) suppressed “a fountain of favorable evidence from the defense”; (2) “[s]ponsored dubious claims from a credibility-ravaged witness who tainted every other prosecution witness”; (3) “made serial false representations to the defense, to jurors, and to the trial court about critical exculpatory evidence”; and (4) testified falsely under oath to hide its misconduct.  This misconduct was an attempt to shore up a weak case in which there was no physical evidence to link Mr. Smith or his co-defendants to the crime, and there was physical evidence that pointed away from them.  Authority from jurisdictions throughout the country supports the dismissal of the indictment under these circumstances.  Prosecutorial conduct that is “so grossly shocking and outrageous as to violate the universal sense of justice” requires dismissal of a resulting prosecution on due process grounds.  A case also can be dismissed under a court’s supervisory powers even if “the conduct does not rise to the level of a due process violation.”  The egregious misconduct found by the court of appeals satisfies either standard.  Retrial would not adequately address the egregious misconduct that occurred in this case because (1) the extensive misconduct here was unusually extreme and shocks the conscience, and it created pervasive prejudice that would prevent Mr. Smith from receiving a fair retrial, and (2) any remedy short of dismissal would be inadequate to deter the type of intentional, willful, and reckless misconduct that the court of appeals recognized and the State now admits.  While dismissal is an extreme remedy, courts have invoked it regularly in cases with extreme facts of the type found here. 

NACDL comments to the Virginia Supreme Court on proposed revisions to Virginia's discovery rules: Proposed Revisions to Rules 3A:11 and 3A:12 Received from the Virginia State Bar Criminal Discovery Reform Task Force.

U.S. District Court Judge Emmet G. Sullivan’s letter to the Judicial Conference Advisory Committee on the Rules of Criminal Procedure, regarding federal disclosure obligations and suggesting an amendment to the Federal Rules of Criminal Procedure.

Letter to the Advisory Committee on Local Rules chairman regarding proposed changes to criminal disclosure rules in the U.S. District Court for the District of Columbia.

Letter to the Judicial Conference Standing Committee on Rules of Practice and Procedure regarding proposed changes to the Federal Rules of Criminal Procedure and Federal Rules of Evidence.

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.

A new development in New Mexico courts in the matter of In re Grand Jury Presentation Concerning James Bort Jones resulting in a pre-indictment mechanism enabling investigation targets to alert grand jury to exculpatory evidence.

With its opinion In re Grand Jury Presentation Concerning James Bort Jones (N.M. 2009), New Mexico joins a minority of states – Colorado, Maine, North Carolina, New York, Tennessee, and Illinois – that have explicit pre-indictment mechanisms. The court noted the importance of pre-indictment procedures given the irrevocable consequences that an indictment can have on a target’s career and reputation.