Has Congress created a new tool to hold individual prosecutors responsible for failing to produce exculpatory material to defense counsel?  Is there more to be done?

In the March 2021 issue of The Champion, official magazine of the National Association of Criminal Defense Lawyers, LSW founding partner John Siffert and the Honorable Donald W. Molloy, US District Judge for the District of Montana, answer yes to both questions.  The authors share insights from the perspectives of bench and bar regarding the government’s disclosure obligations in federal criminal trials. The article  focuses on revised Rule 5(f), which requires judges to inform prosecutors of their obligations to disclose exculpatory information to the defense.

The authors describe how, after a decade of stalemate between the Rules Committee and the DOJ about a mechanism for holding individual prosecutors responsible for Brady violations, Congress took action by passing the Due Process Protection Act on October 21, 2020.  The law amended Rule 5 of Federal Rules of Criminal Procedure 5 (Initial Appearance) by adding a requirement that trial judges “[i]n all criminal proceedings, on the first scheduled court date when both prosecutor and defense counsel are present,” issue an oral and written order: (1) confirming the prosecutor’s disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny; and (2) notifying the prosecution of the possible consequences of violating the order. The amendment to Rule 5 further requires that each judicial council promulgate a model order for use by judges. 

The authors explore the importance of the production of Brady material, and discuss practices courts can and should employ to ensure fair trials for all defendants, including requiring early production of exculpatory information.