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Discovery rule change examined in survey

The Federal Judicial Center recently issued the results of an extensive survey of federal judges and defense attorneys regarding the need for amending discovery provisions in Rule 16 of the Federal Rules of Criminal Procedure.

While the judges were evenly split over the issue of broader disclosure of exculpatory material, an overwhelming majority of defense attorneys were, not surprisingly, in favor of amendments.

The issue of discovery violations was prominent in the 2009 prosecution of former Alaska Sen. Ted Stevens, which was dismissed for prosecutorial misconduct that included failure to disclose evidence. The judge in the Stevens case asked the FJC to examine amending Rule 16.

In the survey, judges said the two most frequent discovery violations involved untimely disclosure and inadequate scope of disclosure.

“The prosecution decides what is exculpatory material and there’s been a long standing debate as to whether [Brady v. Maryland, 373 U.S. 83 (1963)] is sufficient,” according to Stephen P. Garvey, a Cornell Law School professor. “The impetus for the recent discussion is the allegations that Department of Justice lawyers aren’t complying.”

The report said the DOJ has consistently opposed any proposed amendment to Rule 16 and maintains nondisclosure problems are not widespread and rule changes aren’t needed. However, as a result of the Stevens case, the Justice Department said it would review current discovery practices and retrain its lawyers on their discovery obligations.

Before stepping down in 2010, Deputy Attorney General David Ogden sent new guidelines to every U.S. Attorney’s Office in which he stressed the importance of disclosure. In the guidelines Ogden said, “To ensure that all discovery is disclosed on a timely basis, generally all potentially discoverable material within the custody or control of the prosecution team should be reviewed.”

In addition, “[d]epartment policy provides for broader disclosures of exculpatory and impeachment information than Brady and Giglio, 405 U.S. 150 (1972) require,” Ogden said in an accompanying memorandum to the guidelines.

“While I commend DOJ’s recent efforts to provide better guidance and training regarding its obligations under Brady to its line prosecutors, these efforts came only after the disclosure of Brady violations in several high profile cases,” said Marianne Mariano, federal public defender for the Western District of New York. “The importance of the government’s obligation to provide the defense with exculpatory or impeachment information in a timely manner cannot be overstated.”

“What people want is for the rule to be amended to provide greater disclosure. … But an argument can be made that the rule itself already addresses that. Some courts have even said it’s more expansive than it needs to be. I suppose you could change the standard for materiality to turn over more but some prosecutors already have open file policies,” Garvey said.

“I do hope for Rule 16 to be amended even if such an amendment merely codifies current case law,” Mariano said. “Given the constitutional importance of proper and timely disclosure, I do believe that the FRCP should recognize these obligations as well.”

Garvey said the long standing discovery compliance debate is unlikely to end soon and doesn’t believe changes to Rule 16 are forthcoming.

“How you strike a balance of being fair between these competing interests is an open question,” he said. “There is too much division for people to reach an agreement. [Discovery rules are] not going to change.”

The complete FJC survey and commentary can be seen at www.fjc.gov.

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