New NACDL Report on How Courts Impede Fair Disclosure

Today the National Association of Criminal Defense Lawyers released the report Material Indifference: How Courts are Impeding Fair Disclosure in Criminal Cases. According to NACDL's press release, "This groundbreaking study documents one of the major problems facing the nation's criminal justice system today: the failure to ensure full, fair and timely disclosure of information favorable to an accused person in a criminal action. It is a significant step towards achieving the vital reforms necessary to guarantee a fair trial for every accused person," NACDL President Theodore Simon said.

The release describes the study's findings as "extensive and dramatic". Findings include:

The materiality standard produces arbitrary results and overwhelmingly favors the prosecution. Indeed, in those decisions where the prosecution failed to disclose favorable information, it still won 86% of the time, with the court concluding that the information was not material.

Courts almost never find Brady was violated by the late disclosure of favorable information. Of the 65 decisions that involve late disclosure of favorable information, only one resulted in a Brady violation finding.

Favorable information is more likely to be disclosed late or withheld entirely in death penalty decisions. Favorable information was never disclosed or disclosed late by the prosecution in 53% of decisions involving the death penalty, but only 34% of all the decisions studied.

The complete press release and report are available here.