WASHINGTON, D.C., March 15, 2012 — In a March 15 letter, American Bar Association President Wm. T. (Bill) Robinson III commended Sen. Lisa Murkowski for her leadership in introducing the Fairness in Disclosure of Evidence Act of 2012. The bill would require the attorney for the government to disclose favorable information to the defendant in criminal cases brought by the United States and help establish uniformity in standards for disclosure duties for prosecutors.

In his letter, Robinson noted the ABA “strongly support[s] the proposed Act and believe[s] its enactment will be an important step toward achieving consistency and improving fairness in the federal criminal justice system and will serve the cause of achieving justice in countless individual cases.”

Robinson explained that in the U.S. criminal system, the government often has control over the defense’s ability to obtain the evidence it needs to try its case; specifically, the government is required to assess whether evidence is exculpatory (evidence that supports a defendant’s innocence) and to disclose that information to the defense.

“This disclosure of exculpatory information by the prosecution is vital to notions of due process as guaranteed by the Fifth Amendment and effective assistance of counsel as guaranteed by the Sixth Amendment,” he continued.

In Brady v. Maryland (1963); Giglio v. United States (1972); and the United States v. Agurs (1976); the Supreme Court has clearly held that suppression of exculpatory evidence and impeachment evidence by the prosecution violates due process.

Robinson wrote that the ABA has been concerned since Brady and its progeny with articulation of a rule or standard that will guide prosecutors in their responsibilities to disclose evidence to the defense. In August 2011, the ABA House of Delegates adopted policy supporting legislation to implement a standard for discovery obligations of prosecutors under Brady.

He further explained that there are wildly different policies in local U.S. attorney offices and occasionally within the same office. “There is no reason why the DOJ should have 96 different policies rather than one uniform policy,” Robinson wrote.

Robinson noted that the absence of a clear definition of what constitutes Brady material has resulted in confusing and differing disclosure practices. “Even rare violations of Brady are intolerable. The stakes in criminal cases are simply too high to sanction even one isolated occurrence of Brady violation,” he warned.

“A clearly defined and codified disclosure standard would help eliminate the pitfalls of the current system where there is a multiplicity of disparate interpretations of the Brady obligation by both state and federal prosecutors,” he added.

President Robinson’s letter to Sen. Murkowski is available here.

With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

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