Solution #6: Legislation Requiring that Prosecutors Disclose Evidence

In the aftermath of the Senator Ted Stevens case in Alaska, a bill has been introduced in Congress that would require federal prosecutors to disclose evidence favorable to the defense.  Story here.

In my humble opinion, the Brady doctrine (which is named after the US Supreme Court case Brady v. Maryland, and is supposed to require prosecutors to self-disclose evidence favorable to the accused) does not work, because judges don’t enforce it.

How many people are sitting in prison because favorable evidence was not disclosed?

Time after time I am shocked to learn how few prosecutors understand Brady law and how few judges are willing to enforce it.  Brady evidence includes not just the prototypical “exculpatory” evidence (meaning evidence that proves innocence, such as DNA evidence proving the rapist was a different guy), but also impeachment evidence (evidence that can be used to cast doubt on the testimony of witnesses at trial), and also evidence of plea bargain deals that prosecutors make with co-defendants.

If we are going to reform the criminal justice system, and keep innocent people from being convicted (and spending inordinate amounts on jail and prison time for people who should not be there and would not be there had they gotten the evidence they needed to win), prosecutors need to know there will be consequences if they don’t produce the evidence.  As it stands now, in my opinion, they don’t think they’ll ever get caught, or even if they are caught, that anyone will do anything about it.

In my experience, it seems that judges don’t want to find prosecutorial misconduct in a case, because they are concerned that such a finding also likely means an ethics charge for the prosecutor.  (This is the loyalty to public employees that I’ve discussed in other posts.)  This is an unfortunate allegiance.  The private person hailed into court by the government deserves a ruling based on the facts and the law, and not based on the judge’s loyalty to the public attorney(s).  It is an awfully sad commentary on the system that some judges are willing to let innocent people go off to multiple years in prison, rather than hold a public prosecutor accountable for producing evidence.

Sometimes a case comes along where the defendant has enough money, or enough status, or somehow gets enough media attention, to shine a light on problems that most of us see every day in the criminal justice system.  The Ted Stevens case seems to have been such a case.  The proposed legislation seems to have flowed out of lessons learned from that case.  And maybe legislation is a way of removing the impediments to disclosure of evidence.