Recent events in a certain local prosecution of international interest highlighted the salutary effect of early prosecutorial disclosure of information favorable to the defense. The nature of a prosecutor’s disclosure obligations derives from a variety of sources, including the U.S. Constitution, federal and state statutes and case law, court rules, and ethics rules. Nevertheless, reports of prosecutorial misconduct related to non-disclosure are abundant.1 There have been various efforts to more clearly define a prosecutor’s duty in this regard. Resistant to these attempts, the Department of Justice has undertaken to handle the problem internally. Practitioners question whether the government properly can police itself with respect to such matters, and they advocate for substantive change.
The latest attempt at external reform comes from the National Association of Criminal Defense Lawyers (NACDL). In July 2011, the organization released proposed legislation that addresses gaps in the existing framework and sets forth remedial action that can be taken by a trial court where the prosecution is derelict in its duties. Stressing that federal criminal proceedings should be governed with fairness, the NACDL opined that “[t]he time to put teeth into Brady obligations is long overdue.”2
Existing Framework
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