I see the National Association of Criminal Defense Lawyers has proposed new legislation imposing heightened disclosure obligations on federal prosecutors. What I find particularly appealing about the proposal is that it so clearly takes a pretrial perspective. Brady doctrine has developed in perverse ways because it has been written by appellate courts operating in a post-conviction setting. As appellate courts confront disclosure issues, the question is almost always framed as whether a convicted defendant should be given a new trial, with finality interests weighing heavily on the negative side of the balance. Developed from the post-conviction perspective, Brady only requires disclosure of “material” information, that is, information offering a reasonable probability of a different outcome at trial.
But this is an odd standard if one instead assumes the perspective of a prosecutor before trial. It can never be known with certainty how the evidence will come in at trial, and, in the heat of pretrial preparations, we shouldn’t be surprised if prosecutors often take an overly optimistic view of things — which might lead to the suppression of information that would, in fact, prove quite helpful to the defense. Then, too, there is the problem of plea bargaining: what must be disclosed to the defendant before the consummation of a deal? Materiality determinations are apt to be especially speculative and unreliable during plea bargaining, which may occur before investigations are complete, let alone pretrial preparations.
The NACDL proposal provides a statutory fix.
Gone is the constitutional materiality standard, replaced by a duty to “provide to the defendant all information, data, documents, evidence or objects that may reasonably appear to be favorable to the defendant with respect to the determination of guilt, or of any preliminary matter, or of the sentence to be imposed.”
Note, too, another indication of the proposal’s pretrial perspective: “favorability” is determined not only by reference to guilt and sentencing, but also “any preliminary matter” (e.g., pretrial detention) — whether Brady reaches so far has divided the lower courts.
The disclosure obligations are designed with plea bargaining in mind:
The attorney for the government shall disclose the information, data, documents, evidence or objects described in subsection (a) without delay after arraignment, and prior to the entry of any guilty plea pursuant to an agreement with the government, or if such information is not then known, immediately upon its existence becoming known, without regard to whether the defendant is proceeding to trial or has entered or agreed to enter a guilty plea.
The proposal also makes available an expanded array of remedies beyond the new trial remedy that has dominated the development of the Brady jurisprudence:
If the court determines that the United States has failed to discharge its duty under subsection (a), or has failed to discharge its duty in a timely manner under subsection (b), the court shall order appropriate remedial measures. Relief may include postponement or adjournment of the proceedings, exclusion or limitation of testimony or evidence, ordering a new trial, dismissal, or other appropriate remedies. In fashioning a remedy, the court shall consider the totality of the circumstances, including the seriousness of the violation, its impact on the proceeding, whether the failure resulted from innocent error, negligence, or knowing conduct, and the effectiveness of alternative remedies to protect the defendant’s and the public interest in assuring fair prosecutions.
The proposal also resolves another split in lower-court authority by specifying that bare compliance with the Jencks Act (disclosure of witness statements after testimony) does not fully satisfy disclosure obligations with respect to favorable Jencks material.
NACDL’s explanatory notes are here.