In the landmark decision, Brady v. Maryland, the nation's highest court ruled that a prosecutor must make available to a criminal defendant any material evidence that potentially could clear the defendant or lead to a reduced sentence. We still hear about cases in which prosecutors fail to disclose evidence that might be favorable to the defense.
That is more than a technical violation. In fact, it poses a real risk that an innocent person will be sent to prison.
In 2008, for example, then-U.S. Sen. Ted Stevens of Alaska was found guilty of seven felony counts of accepting illegal gifts. A year later, a federal judge overturned the conviction after an embarrassed U.S. Department of Justice admitted it had improperly withheld evidence. The judge also appointed a special investigator, who last month issued a blistering 514-page report that outlines examples of "intentional" prosecutorial misconduct.
The New York State Bar Association long has supported laws to help ensure that prosecutors comply with their obligation to provide the defense with exculpatory evidence before trial.
Three years ago, our Task Force on Wrongful Convictions recommended steps to accomplish just that. Those steps included: better training for prosecutors and investigators; closer supervision by the courts, including court conferences focusing on disclosure; giving defendants more time to review and investigate materials when the prosecution is late in turning them over; creating statutory remedies for defendants when failures occur; and, finally, where withholding is intentional, imposing sanctions against prosecutors. Our recommendations all are included in a bill pending in the State Legislature.
In Washington, U.S. Sen. Lisa Murkowski of Alaska has introduced a similar bill, largely in response to the botched prosecution of Stevens. While the Fairness of Disclosure of Evidence Act of 2012 bill differs in some respects from the state bar's bill in Albany, its objectives are the same.
One of its most important features is that, if adopted, it would set national standards for all federal prosecutors across the country. Once uniform federal standards are established, every state would likely adopt the same or similar standards. Such action by state and federal lawmakers is long overdue.
The right to a fair trial is enshrined in the U.S. Constitution. Requiring prosecutors to disclose exculpatory evidence will help ensure that no innocent person is incarcerated for a crime someone else committed. And that might result in further investigation leading to the conviction of the guilty.
In the interest of both justice and public safety, the New York State Bar Association urges state and federal legislators to address a serious shortcoming in our criminal justice system. We need strong laws to make sure prosecutors comply with the Constitution and give defendants all materials that might clear them of guilt.
Vincent E. Doyle III of Buffalo is president of the New York State Bar Association.