January 27, 2021

Criminal Law: The Fairness in Disclosure of Evidence of 2012

I remember when I was in law school, a close friend wanted to be a criminal defense attorney. When he would mention this at the cafeteria lunch table, the reaction was always the same: “Really, you want to represent criminals?”  “Sure they deserve a defense, but……”

“Innocent until proven guilty” is widely accepted as a principle (and of course is emphasized in our Constitution), but is it being practiced?  Many believe that it is not– at least in regards to the disclosure of exculpatory evidence.

In October of 2011, Michael Morton was released from prison after 25 years detention for a murder conviction after being exonerated of all charges.  The court found that the Prosecutor (now a Judge) purposefully withheld exculpatory evidence that the defense could have used to prove his innocence.  Unfortunately, it cost Morton 25 years of his life before his innocence was revealed.

Shortly thereafter, it was determined that the Prosecutors in Senator Ted Steven’s trial also acted unethically by withholding exculpatory disclosure to the defense.  Though some argue it would not have changed the outcome of the case, it prevented Senator Stevens from a fair trial.

These two cases have received SOME media attention, but they are undoubtedly not alone. In response, Senator Lisa Murkowski (AK) introduced the Fairness in Disclosure of Evidence Act of 2012; ironically on the same day as the release of the report of prosecutorial misconduct in the Ted Stevens trial.

The Fairness in Disclosure of Evidence of 2012 would establish a uniform disclosure process and specifically require the government to produce exculpatory evidence to the defense. In summary, it would codify Brady and its progeny.

Supporters, including the American Bar Association, believe the bill will institute fairness into the criminal justice system.  As President of the ABA, Wm. T. (Bill) Robinson III commented:  “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.”

The general purpose of this bill is to require Prosecutors to hand over exculpatory evidence. Though Brady already seems to impose these obligations in court proceedings, this bill would introduce immediate consequences for the failure to do so. It would also assist in creating a uniform standard in disclosure requirements, instead of 96 disparate rules and policies.

As stated by Senator Lisa Murkowski in the Anchorage news:

“It is the solemn responsibility of federal prosecutors to secure justice — not simply convictions. It is the responsibility of the government to prove an individual’s guilt beyond a reasonable doubt, and if the government cannot, it is expected to voluntarily abandon the case. To keep Americans’ faith in the system we must raise the standards for government prosecutors and cut the chances that we will see the same “hide the ball” tactics Sen. Stevens faced.

The Stevens case was not unique.”


I strongly support the idea of this bill. However, I do not want this to be an excuse for the prosecution to overwhelm the defense with a tremendous amount of irrelevant data, which has also been an ongoing problem.

Hopefully, the bill will be able to accomplish the following:

  1. Mandatory disclosure of exculpatory and prejudicial evidence. (We don’t want any surprises at Court either!)
  2. A systematic approach to disclosing evidence. Data dumps to conceal exculpatory evidence should not be permitted.
  3. A consistent and stringent approach for sanctioning Prosecutors who do not adhere.
  4. Reasonable time allotted for the Defense to review large data sets.
  5. Consistent and manageable production procedures to reduce cost and increase efficiency.

In a perfect world, the Prosecutors would hand over all evidence in an organized manner, ready for legal review and presentation. Don’t get me wrong—I do not believe that we should move to a civil law system, but this bill, if enacted properly, would avail some structure to the current chaotic system of disclosure.

Brooke Oppenheimer

As the Federal Legal Advisor at AccessData Group LLC, Brooke Oppenheimer, Esq. directs AccessData’s public sector clients in discovering efficient and relevant ways to manage their legal review. Integral to this role is Oppenheimer’s thorough knowledge of AccessData’s litigation support software, training, and professional services. Prior to her employment with AccessData, Oppenheimer worked extensively in the management of e-discovery for government investigations and criminal proceedings on Summation’s Hosted Review platform. Oppenheimer also managed discovery and witness statements for defense teams representing high-profile Kosovar Albanians at the International Criminal Tribunal for the former Yugoslavia (ICTY). Oppenheimer is licensed in the State of New York, and is a member of the American Bar Association.

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