Bruce A. Green

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Suppose that federal prosecutors have conducted an investigation culminating in an indictment. Although the prosecutors believe that they have enough evidence to secure a conviction and are personally convinced that the defendant is guilty, some of the evidence they have collected is favorable to the defendant, because it tends to show that the defendant is innocent or that prosecution witnesses should not be believed. Must prosecutors disclose the favorable evidence to defense counsel to use in investigating, advising the defendant, plea negotiations, or trial? Under current federal law, the answer is generally "no." Unless favorable evidence falls within one of several narrow categories, or the evidence might be probative enough to produce an acquittal, federal prosecutors can keep it to themselves.

Proponents of broader federal criminal discovery law express two principal concerns about prosecutors' existing disclosure obligations. The most crucial one is that disclosure is now too limited to ensure fair outcomes and provide a fair process in criminal cases. The other is that prosecutors do not universally comply even with their existing obligations, whether because of the vagueness, inconsistency, or complexity of the discovery law or because of the failings of individual prosecutors or their offices. ...

This Article discusses the proposed legislation and various arguments that might be made for and against it. It begins by briefly discussing the current scope of federal criminal discovery. It then describes the legislative proposal and the competing testimony of its sponsor and the Deputy Attorney General at the initial hearing concerning it. Finally, in the context of a recent federal criminal case raising disclosure questions, this Article addresses some of the fundamental issues raised by the legislation.