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Federal Criminal Defense Study Exposes Failure of US Prosecutors to Disclose Evidence Favorable to Criminal Defendants

Posted by Leslie Posnock on December 15, 2014  |   No Comments »

Recently, the National Association of Criminal Defense Lawyers (“NACDL”) released their latest report, “Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases,” written in conjunction with the VERITAS Initiative at Santa Clara Law School.

This study illustrates a significant problem facing both state and federal criminal prosecutions; i.e., the endemic failure to ensure that information favorable to a criminal defendant is provided by prosecutors in an open and timely manner, resulting in a denial of a fair trial.

In 1963, in Brady v. Maryland, the United States Supreme Court declared that failure to disclose favorable information violates the constitution when that information is material to a criminal prosecution. However, this guarantee is frequently ignored by prosecutors. Across the country, criminal defendants in both state and federal criminal prosecutions are found guilty without seeing information that may have aided their defense. This violations occurs on a frequent basis, and leads to convictions of innocent individuals. Brady violations and their role in wrongful convictions caused this joint study of Brady claims heard in the United States courts over five years. The study concluded that the federal courts were preventing full and fair disclosure of favorable information to those charged with crimes. In doing so, they encouraged United States Attorneys to withhold information.

The study’s findings are troubling. For example, the interpretation by the courts of the ”materiality” requirement of the Brady decision resulted in random enforcement which substantially favored the prosecution. Even in cases where prosecutors failed to disclose Brady material, the government won 86% of the time, with the court concluding that the information was not material.

Courts rarely find Brady violations when favorable information is disclosed late. Only one of 65 court decisions where late submission was studied resulted in a finding that a Brady violation had occurred. This is particularly true in death penalty cases, where favorable information was either not disclosed or disclosed late in 53% of the cases (compared to 34% in all of the decisions reviewed).

Despite clear correlations between withholding evidence and wrongful conviction, the study found that courts persist in tolerating prosecutors’ failure to timely disclose favorable information. Further, the study found that judges’ indifference toward late disclosure resulted in non-compliance with disclosure obligations, leading to the conclusion that late disclosure was a prosecution trial tactic rather than an allowance for exceptional circumstances.

The report suggests reform proposals to increase disclosure of Brady material in criminal prosecutions. First, defense attorneys should request, and judges should grant, orders for the prosecution to disclose all favorable information in accord with American Bar Association Model Rule 3.8(d). Second, judicial rules and policies should be amended to require fair disclosure of information. Finally, legislation should be adopted to codify fair disclosure in criminal cases.

For individuals who are facing prosecution or sentencing in the United States District Courts of New Jersey, or appealing their matters before the United States Court of Appeals for the Third Circuit, it is critical to have an experienced federal criminal defense attorney represent you. The experienced federal criminal defense lawyers of Schwartz & Posnock appear in the United States District Courts in Newark, Trenton and Camden, and have convenient locations in Monmouth County (Eatontown), Essex County (Livingston), Union County (Linden), and Middlesex County (East Brunswick). Call us at 732-544-1460 or email us at to schedule an appointment.

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