“Fairness in Disclosure of Evidence Act of 2012” introduced as a Senate Bill in response to numerous Brady violations

May 07, 2012   

On March 15, 2012, Senator Lisa Murkowski, R-Alaska, profile available here, together with Senator Daniel Inouye, D-Hawaii, profile available here, Senator Kay Bailey Hutchinson, R-Texas, profile available here, Senator Mark Begich, D-Alaska, profile available here, and Senator Daniel Akaka, D-Hawaii, profile available here, introduced the Fairness in Disclosure Act of 2012.  The bill comes in the wake of the Department of Justices failure to turn over exculpatory evidence in the prosecution of U.S. Senator Ted Stevens, see generally here and here.

The U.S. Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963), available here, held that the prosecution has a constitutional obligation to disclose to the defense any and all exculpatory material.  The Bill, as introduced, sets forth a statutory framework for the prosecution to abide by.  The bill defines the term “prosecution team” as an executive agency involved in criminal prosecutions, including law enforcement agencies, see Section 2(a)(2), and imposes a duty to turn over information that “may reasonably appear to be favorable to the defendant,” including information that relates to guilt and sentencing, see Section 2(a)(1).  The Bill imposes a duty to disclose favorable information within the possession and control of the prosecution team or information that is or should be known based on due diligence of the prosecution, see Section 2(b).

The Bill also provides that the prosecution shall provide the information to the defendant “without delay after arraignment and before the entry of any guilty plea” and  “as soon as is reasonably practicable upon the existence of the covered information becoming known, without regard to whether the defendant has entered or agreed to enter a guilty plea,” see Section 2(c). 

Additionally, the Bill provides for remedies for violations of the Act, which may include: “(i) postponement or adjournment of the proceedings; (ii) exclusion or limitation of testimony or evidence; (iii) ordering a new trial; (iv) dismissal with or without prejudice; or Ëœ(v) any other remedy determined appropriate by the court.” Section 2(h).  The Bill also provides for teeth in enforcement by allowing a defendant to recover costs for litigating the discovery violation, see Section 2(h)(2). 

The full text of the bill can be found here.

Brady violations are quite common, notwithstanding the Supreme Courts repeated decisions reversing convictions for the prosecutions failure to turn over exculpatory evidence.  For instance, on January 10, 2012, the Supreme Court in Smith v. Cain, available here, reversed Smiths conviction because under Brady, evidence is material if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.  A reasonable probability means that the likelihood of a different result is great enough to  undermine the confidence in the outcome of the trial.  In Smiths case the eyewitnesss testimony was the only evidence linking Smith to the crime, and the eyewitnesss undisclosed statements contradicted his testimony. The eyewitnesss statements were plainly material, and the prosecutions failure to disclose those statements to the defense violated Brady.

Brady violations are common issues in criminal prosecutions, and the “Fairness in Disclosure of Evidence Act of 2012” appears to be Congresss response to violations against one of their own.  If the Bill were to be passed as it currently stands, it would change the landscape of criminal defense and criminal prosecutions. 

The attorneys at Fuerst Ittleman, PL have extensive experience litigation white collar criminal cases before Federal and State courts at both the trial and appellate levels.  You can contact an attorney by emailing us at contact@fidjlaw.com or by calling us at 305.350.5690.