That's the title of an editorial in today's New York Times on prosecutorial misconduct.
Prosecutors have a constitutional duty to disclose significant evidence favorable to a criminal defendant. But too often that duty, as laid out by the 1963 Supreme Court decision Brady v. Maryland, is violated.
To help ensure compliance, some prosecutors, criminal defense lawyers and legal scholars have sensibly concluded that prosecutors’ files, as a general rule, should be made open to defendants. In cases where turning over evidence might endanger a witness, for example, a judge could allow an exception.
A small number of state and local governments have adopted open-file policies that require prosecutors to make available well before trial all information favorable to the defense, without regard to whether such information is likely to affect the outcome of the case. North Carolina and Ohio and places like Milwaukee have found that such policies make prosecutions fairer and convictions less prone to error. The Justice Department should join this movement and set a national example. But instead, it continues to take half-measures in response to its own failures to meet disclosure requirements.
It responded to several cases of Brady violations by its attorneys — including egregious misconduct in the case of the late Senator Ted Stevens — by providing more training and by directing each United States attorney’s office to set forth clearly its version of the department’s Brady policy, which is to turn over favorable evidence only if it is “material,” meaning likely to make a difference in the case’s outcome.
Those changes are not sufficient because the Brady rule is too easily skirted. It allows prosecutors to withhold favorable evidence that they deem not to be material, leaving defense lawyers unaware of evidence that may be owed them. Ninety-six percent of federal criminal cases are resolved by plea bargains, so the rule puts defendants at a disadvantage in negotiation: without access to information in the government’s files, they don’t know the evidence they face and can’t assess their odds at trial.
And:
In both the federal and state court systems, it is essential that rules about disclosing evidence be followed in ways that promote justice. An open-files policy would come closer to meeting this important standard.
The Tarrant County District Attorney's Office in Fort Worth established a computerized open file system that many view as a model for prosecutorial openness. The Michael Morton case may provide the momentum for the Texas Legislature to mandate some statewide system of criminal discovery when it meets in 2013.
The responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; more on that ruling via Oyez. Related posts are in the prosecutorial misconduct index.
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