Nathan A. Frazier, Amending for Justice’s Sake: Codified Disclosure Rule Needed to Provide Guidance to Prosecutor’s Duty to Disclose

63 Fla. L. Rev. 771 (2011)| | | |

ABSTRACT :: “I wouldn’t wish what I am going through on anyone,” Senator Ted Stevens commented after losing his seat in the United States Senate on November 18, 2008. Senator Stevens lost the race largely because a criminal conviction damaged his reputation. After Senator Stevens endured months of contentious litigation, the jury convicted the longest serving Republican senator in United States history on seven felony counts of ethics violations. Six months later, the presiding judge, the Honorable Emmet Sullivan, vacated the conviction at the request of Attorney General Eric Holder because of blatant failures to disclose exculpatory evidence. Senator Stevens brings a high-profile example to the continuing discussion of the problems inherent in the criminal disclosure rules. His case exemplifies how the current structure of the material disclosure standard often results in the suppression of material evidence.


A criminal prosecutor possesses considerable authority over the evolution of a criminal proceeding. As a result, one of a prosecutor’s primary responsibilities is to ensure that trials are fair. The Constitution, the opinions of the Supreme Court, the Model Rules of Professional Conduct, and the American Bar Association’s Standards for Criminal Justice establish this obligation. Accordingly, a criminal prosecutor must not only convict the guilty but must also ensure that the innocent are not convicted. Pursuant to that responsibility, a prosecutor must disclose material evidence to the defense.

Beginning in Brady v. Maryland, and continuing to Strickler v. Greene, the Supreme Court’s line of cases established the framework underlying a criminal prosecutor’s duty to disclose. The Supreme Court has held that the material evidence standard consists of three components: (1) the evidence must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence must be willfully or inadvertently suppressed by the State; and (3) “prejudice must have ensued.”

While the Supreme Court’s precedent establishes a clear standard, its subsequent interpretation and application have created an array of complexity. Too often, prosecutors have interpreted their disclosure obligations inconsistently. The current standard requires a sensitive case-by-case analysis to determine whether disclosure is required. These case-by-case determinations of the evidence’s materiality have failed to produce clear guidelines for when prosecutors need to disclose exculpatory evidence. More problematic, these varying prosecutorial interpretations have undermined Brady’s constitutional significance. The lack of clarity inherent in the standard exposes the prosecutor to cognitive biases when he attempts to determine which evidence to disclose and which to conceal.

With the advent of modern technology, post-conviction DNA evidence sheds some empirical light on how prosecutorial suppression of material evidence undermines Brady’s constitutional significance and constitutes a major cause of wrongful convictions. Post-conviction DNA evidence has exonerated more than two hundred criminal defendants, and according to some research, almost half of those cases involved prosecutorial misconduct. Nearly a half century after Brady, prosecutors still fail to disclose material evidence. Some research even suggests that 16%-19% of reversals in capital cases are attributable to the non-disclosure of exculpatory evidence. These numbers are quite difficult to swallow while holding a confident belief that the criminal justice system convicts the guilty but spares the innocent. Could it be true that one out of every five prosecutors in capital cases that are reversed results from prosecutors intentionally concealing evidence? The issue, however, is not limited to a prosecutor’s intent to conceal evidence. Rather, what these statistics point out is that our system is flawed because of the lack of clearly defined rules that fail to counteract the cognitive biases inherent in the disclosure decisionmaking process.

As these startling statistics demonstrate, the current material evidence standard fails to provide defendants sufficient access to exonerable evidence. As Professor Alafair S. Burke explains, “the Court’s standard of materiality invites prosecutors to systematically undervalue it. Because of cognitive biases, prosecutors will overestimate the strength of their case in the absence of the evidence at issue, underestimate the potentially exculpatory value of the evidence, and therefore fail to recognize materiality even when it exists.” The innocent, not the guilty, bear the cost of that failure. This Note addresses the complexities in the current standard that leave prosecutors vulnerable to cognitive bias. Part II provides an overview of the criminal prosecutor’s obligation to disclose material evidence. Part III examines how, under the present standard, cognitive bias affects the prosecutor’s decisionmaking process, causing even prosecutors acting in good faith to under- disclose. Part IV demonstrates how objective guidelines could ameliorate cognitive bias in decisionmaking. This Note argues for the implementation of bright-line rules to guide prosecutorial discretion. It urges a solution that identifies the salient facts from the case law and enumerates those facts into a codified Strickler three-prong standard. A bright-line standard should exist requiring disclosure when any of the following scenarios are present:

(1) Prior perjury or false testimony of a government witness;

(2) Promises of immunity to a government witness;

(3) Monetary rewards to key government witnesses;

(4) Mental impairments of a government witness;

(5) Information reflecting bias or prejudice of a government witness against defendant;

(6) Confessions to the crime by others; and

(7) Inconsistent or contradictory scientific tests.

Such bright-line disclosure rules will confine a prosecutor’s discretion within substantive, clear lines by enumerating uniform and demonstrable standards that would require disclosure. Doing so will reduce the opportunity for cognitive bias to creep into a prosecutor’s decisionmaking process. By counteracting the cognitive bias inherent in the present standard, a codified solution would prevent unintentional under-disclosure and, ultimately, ensure a defendant’s constitutional rights are better preserved.

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