Instances of prosecutorial misconduct related to the government’s disclosure obligations in criminal cases have been well-documented in this column,1 as well as in the national and international media. Highly-publicized reports of the government failing to meet its disclosure obligations have led to numerous congressional hearings, a court-ordered investigation,2 and extensive internal review by the Department of Justice. Nevertheless, many believe that the true solution to repeated missteps by prosecutors is legislative. Proponents maintain that congressionally mandated changes are required to clarify and consolidate the hodgepodge of statutes and court and ethics rules that, along with the U.S. Constitution and case law, currently set forth guidance for prosecutorial disclosure.
The government vehemently disagrees, arguing that instances of wrongdoing, such as the exoneration of former U.S. Senator Ted Stevens after the revelation of serious discovery violations by federal prosecutors, are an aberration and that the Justice Department has responded appropriately in “enhancing the supervision, guidance, and training that it provides its prosecutors and by institutionalizing these reforms so that they will be a permanent part of the Department’s practice and culture.”3
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