Legislation Proposed to Require Prompt Disclosure of Favorable Evidence

The recent case involving Senator Ted Stevens, the extensive government corruption that was involved in the failed prosecution of the Senator, and the subsequent Schuelke-Shields Report outlining and documenting that misconduct have brought to light and called into question the application of Brady v. Maryland, 373 U.S. 83 (1963), and the restrictions (or lack thereof) on the disclosure of evidence favorable to an accused. The Senator Stevens case demonstrated the potential for prosecutors overstepping bounds and withholding significant evidence in criminal cases in order to win at all costs.

In response to this need for discovery reform, on March 15, 2012, Senator Lisa Murkowski (Alaska) proposed Senate Bill 2197 titled the “Fairness in Disclosure of Evidence Act.” The purpose of the Act is to “require the attorney for the government to disclose favorable information to the defendant in criminal prosecutions brought by the United States, and for other purposes.” The Bill seeks to codify more narrow and specific requirements for the disclosure of favorable evidence in order to avoid the types of abuse involved in the Senator Stevens case.

The Bill seeks to define the term “covered information” to mean any information, data, documents, evidence or objects that may reasonably appear to be favorable to the defendant in a criminal prosecution brought by the United States. This legislation would eliminate the subjective materiality standard under Brady. The Bill would also require the disclosure of all such covered information without regard to admissibility in court.

Under the Brady standard prosecutors often delay the disclosure of exculpatory evidence and witness statements until after direct examination, leaving defense counsel with very limited time to review and use those materials. This Bill would remedy that situation by requiring disclosure without delay after arraignment or prior to entry of a guilty plea. If the evidence is not known to the government at that time, the government would be obligated to disclose the information 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.

Finally, the Bill clarifies the law with respect to the remedies available to a defendant where the government has engaged in such prosecutorial misconduct. Such remedies may include postponement or adjournment of the proceedings, the exclusion or limitation of testimony or evidence, the ordering of a new trial, dismissal with or without prejudice, or any other remedy determined appropriate by the court. This legislation would provide the courts with an array of remedial powers to be used, depending on the circumstances involved in each case.

We will certainly keep a watchful eye on the progress of SB 2197. Whether or not this Bill or some variation is eventually enacted, what is clear from the Senator Stevens case is that some sort of legislation is needed for discovery reform, and Senator Murkowski’s proposed legislation is a step in the right direction.