Letter from current and former judges, prosecutors, law enforcement, defense attorneys, and others to members of Congress on the need for reform and clarification of federal criminal discovery obligations.

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

Letter to the Judicial Conference Committee on Practice & Procedure regarding proposed rule changes to the Federal Rules of Criminal Procedure and Rules Governing 2255 Proceedings.

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.

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. Discovery allows you to build a fully-informed defense for your client. "Discover" resources for your case here.

A guide on Brady v. Maryland prepared by the Special Litigation Division of the Public Defender Services of District of Columbia. It is both a quick reference guide and a starting point for correspondence or pleading addressing the government’s Brady obligations. 

Forensic software is used in the criminal justice context to make assertions about the presence and nature of DNA, to deploy police resources to certain areas, or to guide bail and sentencing determinations. Software, however, is far from impartial or infallible. The authors explain why law and public policy require disclosure to the public and independent experts of the software source code and other software development records, including training data sets.

In March 2012, Sen. Lisa Murkowski introduced a bill in Congress called the Fairness in Disclosure of Evidence Act of 2012. The bill would codify the duty of the government to promptly disclose evidence that is favorable to the defense. If passed, this legislation may provide strong impetus to a discovery reform effort on the state level.

Many years ago I was asked to talk at an annual meeting of a statewide prosecutors’ association. They wanted me to speak from a defense perspective about common prosecutorial mistakes. Really, this was their idea. I accepted happily.

Sadly, the struggle to obtain information favorable to an accused that rests in the hands of prosecutors and their agents rages on 50 years after the Supreme Court declared in Brady v. Maryland that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. And so the 50th anniversary of Brady, which occurred on May 13, 2013, is less a celebration than a lamentation.

NACDL devised a model statute that would codify the Brady rule. The Fairness in Disclosure of Evidence Act does not attempt to reform criminal discovery generally, but it does seek to clarify and implement the Brady rule in each respect that case law development has made problematic.

Stop. Do you need to read another article that begins with, “Despite its fifty year history, the Brady promise remains unfulfilled”? You know that. You know the law. You know that the actual practice is far afield from what Justice Brennan might have envisioned in the noble pursuit of fairness in Brady v. Maryland.¹ 

The year 1963 saw a U.S. Supreme Court comprised of a diverse array of justices. The Court proved to be a critical element in the establishment of fundamental rights for all Americans, including criminal suspects and juvenile offenders.

Editor’s Note: Although Mike Klinkosum practices law in North Carolina, a state that provides “open-file” discovery (defined as discovery in which everything contained in the files of law enforcement and the prosecution, with the exception of work product and privileged material, is provided to defense attorneys) by statute, such was not the case prior to 2004. See N.C. Gen. Stat. § 15A-903 (2010); S.L. 2004-154, S.B. No. 52 (N.C. 2004). The techniques and strategies discussed in this article were employed by Klinkosum prior to 2004.

Editor’s Note: This article is based upon Colin Starger’s prior work on the evolution of Brady doctrine. See Colin Starger, Expanding Stare Decisis: The Role of Precedent in the Unfolding Dialectic of Brady v. Maryland, 46 Loy. L.A. L. Rev. 77 (2012).