Time to Make Brady Compliance Part of Prosecutors’ Culture


On Thursday, November 4, 2010, Rod Rosenstein, the U.S. Attorney for Maryland, defended the U.S. Department of Justice’s recent efforts to address its compliance with Brady v. Maryland, the 1963 Supreme Court case requiring prosecutors to disclose information that would tend to exculpate criminal defendants.

Rosenstein, speaking before a group of defense attorneys at an American Bar Association town hall meeting, said that the DOJ takes its discovery obligations seriously. Rosenstein said that prosecutors now have new guidelines that represent a change in the culture of the department on Brady compliance. Programs are in place for regular Brady training, and written office policies and discovery coordinators address Brady concerns and attempt to harmonize the approaches to discovery obligations taken by various DOJ offices.

In our view, however, the new guidelines simply maintain the status quo and do not really promote change at all.

The background for Rosenstein’s comments is as follows. After several high-profile discovery missteps, the DOJ issued three memoranda on January 4, 2010, which include guidance for all federal prosecutors and details the steps the department has taken to address Brady concerns. The most notable instance of government non-compliance with Brady came in April 2009 when the DOJ dismissed a seven-count public corruption indictment of former U.S. Senator Ted Stevens. The dismissal followed a guilty verdict in a jury trial, during which the judge repeatedly rebuked prosecutors for failing to disclose evidence that was potentially helpful to the defense.

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