Codifying the Brady Standard to Help the Prosecutors Understand

June 26, 2012
By Hanging Out with Carl Gunn


  • Think about legislative and rule proposals as well.


Oh, the wonderful Internet and thank God the days of vellum, papyrus, and stone tablets are long gone. I went out to search the Internet for additional support for the Brady standard discussed in my post last week, and it reminded me of legislative and other proposals to codify a standard like the one Judge Pregerson applied in the Sudikoff opinion that I discussed last week. So I thought I’d share some of those in this week’s post before moving on to another, related topic next week.

The bottom line is that Judge Pregerson isn’t alone in his view of the rule, or at least what the rule ought to be. There are various pending proposals out there that would codify his view in either a statute or the rules of criminal procedure. Attached here is a link to a discussion draft of a possible amendment to Rule 16 of the Federal Rules of Criminal Procedure — along with a modified version proposed by defense attorneys — which was being considered last year and attached here is a link to a bill that’s been introduced by Senator Murkowski of Alaska. You might not think of Senator Murkowski as the foremost advocate for criminal defendants’ rights, but I guess that can change when a fellow senator from your state (remember the prosecution of Senator Stevens) has been the victim of prosecutorial shenanigans in the area.

I’m also attaching some letters of support for the Murkowski bill from both the American Bar Association and the Constitution Project, here and here. The Constitution Project letter was written about a week before she introduced the bill, so it’s not framed as a letter of support, but it supports the same concept.

In any event, for those of you who have political instincts and contacts in addition to legal ones, you might think about talking to political people in addition to lawyers and judges. Or maybe threaten our prosecutors with legislation if they persist in not understanding their obligation.

More next week.