In The Interests of Justice: Why Federal Prosecutors Should Welcome Evidence Disclosure Reforms

By Kristin Keehan, Albany Government Law Review

            Under Brady, a prosecutor’s failure to provide material, exculpatory evidence to the defense is a violation of due process.[1]  This famous ruling is commonly known as “The Brady Rule.”[2]  The ruling from Brady has been further embodied in the New York Rules of Professional Conduct, Rule 3.8(b):  Special Responsibilities of Prosecutors and Other Government Lawyers:

b. A prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant or to a defendant who has no counsel of the existence of evidence or information known to the prosecutor or other government lawyer that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the sentence, except when relieved of this responsibility by a protective order of a tribunal.[3]

The failure to provide evidence that could be deemed to be Brady material can result in mistrials,[4]  reversal on appeal, and/or professional sanctions.  However, the damage done to a criminal defendant is usually the cause of irreparable harm.

            The thirst for a “win” in court has led to more and more Brady violations.  In 2003, a man by the name of Edgar Rivas was convicted of conspiracy to possess more than five kilograms of cocaine while he was aboard the foreign freighter the Antwerpen arriving in the United States.[5]  The day before trial was to begin, the Government’s main witness admitted to carrying onto the Antwerpen the cocaine that was found in Rivas’s cabin.[6]  The Government, however, failed to disclose this information to the defense, and Rivas was convicted.[7]  On appeal, the U.S. Court of Appeals for the Second Circuit found the Government’s actions to be in violation of the Brady Rule, vacated the judgment, and ordered a new trial.[8]  The only reason that Rivas’s defense counsel ever found out about the Brady violation was through a Government translator who approached defense counsel after the trial.[9]  Unfortunately, Mr. Rivas is just one of many who suffer at the hands of prosecutors who wish to conceal evidence from the defense.  According to Marvin Schecter, “the slow trickle of uncovered Brady violations spawned by DNA exonerations has become a steady, flowing stream of egregious cases.”[10]  Schecter believes that the violating of Brady is “something that is learned and taught.”[11]  Though such claims have been ardently denied[12], the reaction to legislation to keep such Brady violations at bay signals that Schecter’s assertion might not be as outlandish as some claim.

            On March 15, 2012, Senator Lisa Murkowski introduced the Fairness in Disclosure of Evidence Act.  The Fairness in Disclosure of Evidence Act of 2012 seeks to amend the federal criminal code to require the attorney for the government in criminal proceedings to provide to the defense counsel “any information or evidence that may reasonably appear to be favorable to the defendant regarding the determination of guilt, any preliminary matter before the court, or the sentence to be imposed.”[13]  The difference between this piece of legislation and the Brady Rule itself is that, “[w]hereas the law currently allows the government to provide Brady disclosures essentially any time it wants before trial . . . the Act requires the disclosure of such information ‘without delay after arraignment.’”[14]  Furthermore, the bill differs from the Brady rule in that “prosecutors [would be required to] turn over all evidence that ‘may reasonably appear to be favorable to the defendant.’”[15]  The Brady rule itself requires only material evidence that goes towards the defendant’s guilt or punishment be turned over.[16]

            The main opposition to the bill:  The Department of Justice.  James M. Cole, deputy United States attorney general, “testified at a Senate Judiciary Committee hearing in June that the problems in the Stevens case ‘[do] not suggest a systemic problem warranting a significant departure from longstanding criminal justice practices.’”[17]  The Stevens case, which directly preceded the introduction of this bill, is one of the more popular cases of clear Brady violations.  In the Stevens case, Alaskan Senator Ted Stevens was “charged with failing to list on Senate disclosure forms some $250,000 worth of goods and services he received.”[18]  The charges were dismissed at the request of attorney general Eric. H. Holder, Jr. “because the new lawyers whom he had put in charge of the case had discovered yet another example of concealment.”[19]  The Stevens case was supposed to be a “single achievement” for the Justice Department’s anticorruption unit.[20]

            The Department of Justice further contends that “various provisions of the proposed law would further endanger the lives of witnesses and undermine the government’s ability to convict some of the most violent criminals.”[21]  The desire to appear “tough on crime” is putting the lives of innocent defendants at risk.  While the legislation is tougher than the Supreme Court decision in Brady, it only furthers the ability of defense to make their trial and for the criminal justice system to maintain the standard of “innocent until proven guilty.”  “The DOJ regularly asks courts to factor deterrence into its sentences for criminal violations–courts should therefore consider the importance of deterring constitutional violations in remedying prosecutorial misconduct.”[22]

            The legislation not only helps defendants, but it also helps prosecutors.  The legislation would make it clearer for U.S. attorneys as to what must be disclosed and when.[23]  U.S. Attorneys are currently forced to determine what evidence is “material,” a term that many courts have defined differently.[24]  The legislation is beneficial on all fronts, and ensures that defendants are given their constitutionally guaranteed due process rights.  To close on the importance of the issue, the following is a story from the aforementioned Senate Judiciary Committee Hearing by Carol Brook:

The significance of the Brady decision cannot be overstated. This Committee obviously recognizes that. What the Committee may not know is how the Brady decision affects our clients and their families, and so I will close with this story: After John Leo Brady, the defendant in the Brady case, was finally released from prison, he moved to Florida and became a truck driver. He started a family and was never in trouble again. When his son was old enough to understand, he explained to him what he had done and what happened in his case. Shortly after that, his son sought out the telephone number of his father’s lawyer, Clinton Bamberger, and called him. What he said to Mr. Bamberger was, thank you for saving my father’s life.[25]

The Fairness in Disclosure of Evidence Act of 2012 was referred to committee at the end of the 112th Congressional session.  The bill has not yet been reintroduced into Congress.

            Maintenance of due process rights is essential to any criminal defendant.  The violations of Brady have serious consequences for those defendants who were, as a result of the Brady violations, denied their fair day in court.  Defendants can lose jobs, family, and the support of the community.  It is important to advocate for the rights of defendants and the continuing adherence to the Brady Rule, whether it be through new legislation such as the Fairness in Disclosure of Evidence Act or through new prosecution policies that ensure that the Brady Rule is followed.  Everyone deserves their fair day in court–you never know when it could be you at the mercy of a prosecutor’s adherence to the Brady Rule.

[1] Brady v. Maryland, 373 U.S. 83, 87 (1963).

[2] Jesselyn McCurdy & Dan Zeidman, Brady Reform: New Legislation is a Win for Justice, ACLU Blog of Rights (March 15, 2012, 3:47PM),

[3] N.Y. Unified Ct. Sys., Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.8, available at

[4] John Caher, ‘Brady’ Violations Result in Mistrial in Sex Abuse, N.Y. L.J., Aug. 10, 2012, at 1.

[5] United States v. Rivas, 377 F.3d 195, 196 (2d Cir. 2004).  See also McCurdy & Zeidman, supra note 2.

[6] Rivas, 377 F.3d at 198.

[7] Id.

[8] Id. at 200.  See also McCurdy & Zeidman, supra note 2.

[9] Rivas, 377 F.3d at 198.

[10] Joel Stashenko, D.A.s Challenge Claim by Bar Section Head They Undermine ‘Brady’, N.Y. L.J., July 30, 2012, at 1.

[11] Id.

[12] Id.

[13] Library of Congress, Summary of the Fairness in Disclosure of  Evidence Act of 2012,, (last visited Nov. 29, 2013).

[14] Matthew Umhofer, Fairness in Disclosure of Evidence Act: The Good and the Bad, Reuters,  Apr. 23, 2012, available at

[15] Peter J. Henning, In ‘Squawk Box’ Case, a Delicate Line for Prosecutors, N.Y. Times, Aug. 7, 2012,

[16] Id.

[17] Id.

[18] Neil A. Lewis & David Johnston, Tables Turned on Prosecution in Stevens Case, N.Y.Times, Apr. 8, 2009, at A0.

[19] Id.

[20] Neil A. Lewis & David Johnston, Dismayed Lawyers Lay Out Reasons for Collapse of the Stevens Conviction, N.Y. Times, Apr. 7, 2009, at A0.

[21] John May, Government’s Response to Brady Relies on Fear Not Fact, White Collar Crime Prof Blog (June 14, 2012),

[22] Umhofer, supra  note 14.

[23] Hearing on Ensuring that Federal Prosecutors Meet Discovery Obligations Before the S. Comm.. on the Judiciary, 112th Cong. 5 (2012) (statement of Carol Brook, Executive Director, Federal Defender Program for the Northern District of Illinois).

[24] Id.

[25] Id.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s