Federal Criminal Discovery Reform: A Legislative Approach

45 Pages Posted: 2 May 2013 Last revised: 7 May 2013

See all articles by Bruce A. Green

Bruce A. Green

Fordham University School of Law

Date Written: April 30, 2013


In general, discovery is far narrower in federal criminal cases than in federal civil litigation. Under current federal law, prosecutors do not have to disclose evidence and information that is favorable to the defense for its use in investigating, advising the defendant, plea negotiations or trial, unless the favorable evidence falls within one of several narrow categories or might be probative enough to produce an acquittal. Proponents of broader federal criminal discovery law express concern both that disclosure is too limited to ensure fair outcomes and provide a fair process in criminal cases and that prosecutors do not universally comply even with their existing obligations. Last year, largely in response to the disastrous federal corruption prosecution of U.S. Senator Ted Stevens, Senator Lisa Murkowski proposed the “Fairness in Disclosure of Evidence Act of 2012,” which would generally require federal prosecutors to disclose favorable evidence to the accused. Although this would only modestly expand prosecutors’ disclosure obligations and be far less demanding than the “open file” discovery adopted in some state and local jurisdictions, the Department of Justice opposes the bill. This article discusses the proposed legislation and various arguments that might be made for and against it. It concludes that DOJ’s opposition to expanding its disclosure obligations may seem reasonable if one’s objective is simply to ensure that federal prosecutors comply with existing constitutional obligations. The Department is taking significant measures to educate federal prosecutors and to develop a national culture in which compliance with current law is taken seriously. But if one believes that a fair process requires greater and earlier disclosures of relevant evidence - and certainly of favorable evidence - DOJ’s position becomes far less reasonable. The interest in public safety and other countervailing interests it cites, although implicated in a comparatively small number of cases, would not justify curtailing defendants’ access to evidence in all cases. In many other jurisdictions, prosecutors make broader disclosure, subject to exceptions in individual cases where there are particular countervailing concerns. Absent evidence that more generous disclosure undermines the public interest in these jurisdictions, DOJ’s opposition in principle to discovery reform is unpersuasive.

Keywords: criminal procedure, prosecutors, criminal discovery, Brady v. Maryland

Suggested Citation

Green, Bruce A., Federal Criminal Discovery Reform: A Legislative Approach (April 30, 2013). Mercer Law Review, Vol. 64, p. 639, 2013, Fordham Law Legal Studies Research Paper No. 2258633, Available at SSRN: https://ssrn.com/abstract=2258633

Bruce A. Green (Contact Author)

Fordham University School of Law ( email )

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