In federal criminal cases, prosecutors continue to exercise substantial judgment in determining whether evidence is “favorable” to the accused, how important such evidence is, and why and when it must be disclosed. The defense is often forced to spend countless hours in cat-and-mouse games over what the prosecution is prepared to produce and when, and frequently does not learn until just before trial both what may be most helpful to its case (all of the impeachment information), and what may be most harmful (all of the incriminating parts of the government witnesses’ prior statements).

This limited and delayed disclosure regime often unfairly and unnecessarily hampers the defense in making timely and informed decisions about case strategy, evaluating the strengths and weaknesses of the prosecution, and challenging the government’s case at trial.

To address some of this unfairness and inefficiency, and in response to a series of egregious disclosure violations in recent high-profile prosecutions, particularly the failed prosecution of former Alaska Senator Ted Stevens, Republican Senator Lisa Murkowski of Alaska introduced in March of this year the Fairness in Disclosure of Evidence Act of 2012 (S. 2197) (FDEA). The FDEA has been endorsed by a bipartisan group of five additional senators as well as such diverse groups as the American Bar Association, the Chamber of Commerce and the NACDL. While the FDEA would not eliminate all of the problems in the current system of disclosure, it would be a significant step in the right direction and the most serious reform of the federal criminal discovery process in recent memory.

The FDEA would enact a uniform national standard requiring disclosure of all information “favorable to the defendant” “without delay” after arraignment and before entry of any guilty plea (with the only exceptions on timing being for classified information or where the government could show a “threat to the safety” of a potential witness or other person); it would formalize a prosecutor’s obligation to exercise “due diligence” to ensure all favorable information within a broadly defined “prosecution team” is located and produced; it would codify a range of remedies for government violations, adding the additional remedy of assessing costs and fees against the prosecution; and, it would implement a new and much more rigorous standard of appellate review of disclosure violations, requiring the government to prove “beyond a reasonable doubt that the error did not contribute to the verdict obtained.”

‘Favorable’ Information

We focus first on FDEA’s requirement that the government disclose all “favorable” information “without delay after arraignment and before the entry of any guilty plea.”

The FDEA would eliminate the sometimes artificial distinctions drawn between “exculpatory” and “impeachment” material and require that information falling into either category be disclosed at the outset of every case and as soon as “reasonably practicable.” The accelerated timeline is especially significant with respect to impeachment information, which under current practice is typically held back until days or, in more complex cases, weeks before trial.1 To the extent impeachment information is contained in witness statements or agent reports of interviews, the FDEA would explicitly trump the Jencks Act’s delayed disclosure timeline and make clear that this impeachment material would have to be produced immediately.

The FDEA also would effectively overrule the Supreme Court’s opinion in United States v. Ruiz,2 which held that impeachment material need not be disclosed at all in advance of a guilty plea, and it would settle the uncertainty in the wake of Ruiz about whether the prosecution is required to turn over exculpatory information prior to a plea.

The FDEA will promote greater fairness and efficiency by significantly curtailing prosecutorial discretion to delay the timeline for when information favorable to the defense will be disclosed and by enabling the defense to make a much earlier assessment of the strengths and weaknesses of the government’s proof. Because a significant portion of impeachment material typically includes inconsistent statements by and between government witnesses, in many cases the FDEA will require (and should encourage) early production of witness interview reports and/or statements to allow the defense to adequately see and understand such inconsistencies. Defendants exercising their constitutional right to go to trial will have more time to prepare to make effective use of exculpatory and/or impeachment material, and to develop further evidence to defend themselves.

Another significant improvement to the fairness of the process is the FDEA’s mandate that the government disclose all evidence and information “that may reasonably appear to be favorable to the defendant.” Under the Brady line of decisions, the prosecutor’s constitutional obligation to disclose exculpatory and impeachment information is subjected to a “materiality” threshold, framed as whether there is a reasonable probability that the information would change the result of the proceeding.3 And while current Department of Justice policy instructs prosecutors to produce information beyond what is technically “material,” it still calls upon prosecutors to make difficult and subjective assessments as to whether the information is “significantly probative” of the issues or casts “substantial doubt” on some part of the government’s evidence.4

The FDEA would eliminate all of these filters. Prosecutors would operate under a broadly inclusive and legally enforceable standard that should largely take them out of the business, which according to a recent Federal Judicial Center survey many are still in, of deciding whether to withhold evidence, even though favorable to the defense, based on their own assessment that it wouldn’t make a difference or isn’t important enough.5 Eliminating any “materiality” threshold also would catch the governing law up to what is ethically mandated of New York prosecutors, i.e., that they disclose all evidence favorable to the defense without regard to its anticipated impact on a trial’s outcome.6

Government Concerns

Consistent with its opposition to all recent efforts to codify expanded or accelerated disclosure obligations, in the first Senate hearing addressing the FDEA, on June 6, 2012, the Justice Department argued that the legislation is unnecessary and raised concerns focused primarily on the dangers of early disclosure of the identities of witnesses or of sensitive impeachment information in specific kinds of cases—drug and violent crime cases, child exploitation and rape cases, national security cases, and cases involving confidential informants or undercover agents.7 Without question these are real concerns. But the FDEA already contains provisions to address safety and other considerations in particular cases—such as those involving violence or national security—including allowing for delayed disclosure of pure impeachment evidence where the government is able to document safety concerns.

To the extent there are other situations where the government can make a showing of compelling need (such as those identified in the Justice Department’s testimony), the exceptions to the FDEA’s accelerated disclosure timetable could be carefully expanded. But potential problems in narrow categories of cases should not be accepted as a reason for wholesale dismissal of rules that could improve the fairness of the process in the vast majority of cases.

Significantly, the FDEA’s proposed more expansive and timely disclosure regime is already in place and working smoothly in significant respects in various districts across the country. For example, while immediate disclosure of Giglio/impeachment material may be virtually unheard of in the Eastern and Southern Districts of New York, the local rules of several other districts around the country already mandate such immediate or close to immediate production.

According to a recent Federal Judicial Center survey, “[n]o judges and no U.S. Attorney’s Offices in these districts reported that the timing of disclosure had caused serious problems in the majority of cases.”8 Similarly, 10 districts around the country already have local rules that explicitly or implicitly eliminate the “materiality” requirement, and 71 percent of defense lawyers recently polled in those districts expressed the view that this “had reduced problems in most or some cases in their districts.”9

Providing earlier and broader disclosure is also supported by the Department of Justice’s own policies and guidance. The department’s 2010 post-Ted Stevens discovery memo encourages federal prosecutors to do just what the FDEA would require—provide “broad and early discovery”—and acknowledges that doing so “often promotes the truth-seeking mission of the Department…and fosters a speedy resolution of many cases.”10 If the Justice Department really means what it says in this policy, it should be required to come forward with more than the usual broad objections to codifying those same principles into clear rules that carry the force of law and are enforceable in court.

One specific objection likely to be heard from the government is suggested by its 2010 internal “guidance,” which explains that because impeachment information depends on “the prosecutor’s decision on who is or may be called as a government witness,” it “typically” should not be disclosed until some undefined “reasonable time before trial.”11 We find this justification for delayed disclosure unpersuasive. In most cases, the government knows from the outset who its key witnesses will be at trial. The FDEA’s immediate disclosure requirement could easily be interpreted to require disclosure of impeachment material with respect to any witness that the government does, or should reasonably, anticipate calling in its case-in-chief.

Other Issues

The FDEA does leave at least one significant question unanswered: when exculpatory or impeachment material is contained within a witness’ statement or an agent’s interview report, is the prosecutor obligated to turn over the whole statement or report or instead only those excerpts that the prosecutor identifies as “favorable” to the accused? Under current practice, the government usually produces only small portions of heavily redacted reports. Improperly redacted reports and notes of witness interviews were one of the core problems in the Ted Stevens disclosure violations.

If “fairness in disclosure” is really what the sponsors of this new legislation seek to achieve, and because context is often crucially important to allow the defense to fully understand and make use of any favorable statements or facts, the FDEA should be interpreted to require production of the entirety of any witness statement or report of interview that reflects or includes information favorable to the accused, unless the government can show that the information favorable to the accused is completely separable from the remaining portions of the statement or report.

Another important issue not addressed at all by the FDEA is the government’s obligation to memorialize all witness interviews, so as to be in a position to disclose exculpatory and impeachment information, including changes in witness statements from one interview to another. Several years ago we advocated for a rule requiring such memorialization,12 and in its 2010 “guidance,” the Justice Department came out with a new policy that “generally speaking, witness interviews should be memorialized by the agent.”13 Creation of a fair and accurate record of what witnesses say is perhaps the most important prerequisite to the government’s ability to faithfully discharge its Brady/Giglio disclosure obligations, and we continue to urge codification of what the Justice Department has now endorsed as a matter of policy—i.e., the prosecution team’s obligation to memorialize all witness meetings.

No legislative or policy fix can solve all discovery problems in criminal cases, but we are confident that, if enacted into law, the FDEA would be a substantial and positive step forward in improving fairness and efficiency in the federal criminal justice system.

Barry Berke is a partner and co-chair of the white-collar defense group at Kramer Levin Naftalis & Frankel. Eric Tirschwell is a partner in that group. They are co-authors of “The Practice of Federal Criminal Law: Prosecution and Defense” (Thomson West 2006). Rachel Feinberg, an associate at the firm, assisted in the preparation of this article.

Endnotes:

1. The current constitutional standard for the timing of disclosure of evidence favorable to the accused is in time “for its effective use at trial.” E.g., United States v. Coppa, 267 F.3d 132, 135 (2d Cir. 2001).

2. United States v. Ruiz, 536 U.S. 622, 122 S.Ct. 2450 (2002).

3. Cone v. Bell, 556 U.S. 449, 469-70, 129 S. Ct. 1769, 1783 (2009).

4. U.S. Dept. of Justice, United States Attorneys’ Manual 9-5.001 (2010).

5. Laura Hooper et al., Fed. Judicial Ctr., A Summary of Responses to a National Survey of Rule 16 of the Federal Rules of Criminal Procedure and Disclosure Practices in Criminal Cases, 32 (Feb. 2011) (of the six different approaches to the disclosure of material pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), reported by prosecutors from 80 U.S. Attorney’s Offices around the country in the summer of 2010, the fourth most common approach was to “analyze[] questionable material to determine if such material could potentially affect the outcome of the case”).

6. ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 09-454 (2009).

7. Hearing on S.2197 Before the S. Comm. on the Judiciary, 112th Cong. (2012) (statement of James M. Cole, Deputy Attorney General of the United States).

8. FJC Report, supra note 6, at 14-16, 34, Appendix B, Table 2A.

9. Id. at 16-17, 33, Appendix B, Table 3.

10. Memorandum from Deputy Attorney General David W. Ogden, Guidance for Prosecutors Regarding Criminal Discovery (Jan. 4, 2010).

11. Id.

12. Berke and Tirschwell, “New Rule Proposed on Note Taking in Criminal Cases,” NYLJ, Sept. 6, 2007.

13. Ogden Memo, supra note 11.