NACDL Report on Discovery Violations

The National Association of Criminal Defense Lawyers (NACDL) released a report based on a study of discovery violations, “Material Indifference: How Courts are Impeding Fair Disclosure in Criminal Cases,” which was “produced jointly with the VERITAS Initiative at Santa Clara Law School.”  The report focuses on so-called “Brady violations” when the prosecution fails to disclose favorable information to the defense.  The U.S. Supreme Court declared this failure to be a constitutional violation when the information is material in Brady v. Maryland, 373 U.S. 83 (1963).

The report found:

  • “The materiality standard produces arbitrary results and overwhelmingly favors the prosecution…
  • Late disclosure of favorable information is almost never a Brady violation…
  • The prosecution almost always wins when it withholds favorable information
  • Withholding incentive or deal information is more likely to result in a Brady violation finding…
  • Courts ‘burden shift’ when they employ the due diligence ‘rule’ against the defendant…”

While the report focused on federal criminal cases, a similar discovery process applies to juvenile cases in Indiana, with the same potential disclosure issues.

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