If You Want to Do Even More More Dreaming . . .

August 11, 2015
By Hanging Out with Carl Gunn


  • See below.

I stopped with the SAFE Act’s sentencing provisions in my last post because just those alone justified a full post – actually, more than a full post.  There’s also some encouraging trial provisions in the Act, though.  The Act is linked again here, and you should peruse it yourself, but here’s just a few highlights.

• The bill expressly recognizes that mistaken eyewitness identification has contributed to the wrongful conviction of hundreds of defendants, including 20 who served time on death row and 30 who pled guilty.  It also notes that improved policies and procedures are “readily available” and cites those recommended by, inter alia, the National Academy of Sciences, the National Institute of Justice, the American Bar Association, and the International Association of Police Chiefs.  (See pages 16-17 of the linked version of the bill.)

• The bill describes audiotaped and videotaped custodial interrogations as “the best evidence of the communications that occurred” and “encourage[s] the video and audio recording of all custodial interrogations.”  (See page 20 of the linked version of the bill and also see a prior post – “Some Enlightenment in Federal Law Enforcement?” – in the November 2014 link at the right.)

• The bill describes the testimony of informants who have reason to seek leniency as “inherently suspect,” suggests that government rewarding of informants “produces dangerous incentives,” and recommends developing a system to carefully assess the reliability of informant testimony.”  (See pages 20-21 of the linked version of the bill.)

• The bill directs the Attorney General to instruct federal prosecutors and law enforcement agents to (1) allow defendants “to inspect and to copy or photograph the full contents of all investigative and case files, excepting only privileged material or attorney work product”; (2) provide the names and addresses of all persons known to the government to have information concerning the offense; (3) identify the persons the government intends to call as witnesses at trial; and (4) disclose any information which “tends to negate” guilt or “would tend to mitigate punishment,” without the “materiality” requirement the government sometimes tries to overlay on Brady and Giglio material.  (See pages 24-27 of the linked version of the bill for this — and also other categories of information to be disclosed — and see my past posts on the comparable standard in District Judge Pregerson’s Sudikoff opinion, including, most recently, “Another Update on a Not So Recent Discovery Post” post in the June 2015 link at the right.)

     So there’s some proposals for procedural protections in the Act as well.  Think about using those in your motions to present eyewitness identification experts, your motions about informants, and/or your motions about Brady material.