Federal judges divided

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By Sylvia Hsieh
Dolan Media

Federal judges are divided over whether the Federal Rules of Criminal Procedure should be amended to require the government to hand over exculpatory evidence to criminal defendants, according to a recent survey by the Federal Judicial Center.

The survey was initiated to assist the Advisory Committee on Criminal Rules, which is considering whether Rule 16 of the Federal Rules of Criminal Procedure should be amended to incorporate the government’s constitutional obligation to provide exculpatory and impeachment evidence to the defense, or instead, to create a broader disclosure obligation.

The survey, conducted in June 2010, was sent to all federal district and magistrate judges, U.S. Attorney’s offices and federal defenders as well as a sample of defense attorneys.

The 644 judges who responded were evenly split over whether Federal Rule of Criminal Procedure 16 should be amended to incorporate the constitutional duty to disclose exculpatory evidence.

However, judges in districts where a local rule or order requires broader disclosure of exculpatory and impeachment evidence than required by Rule 16 were in greater support of amending Rule 16 than judges in traditional Rule 16 districts.

More than 90 percent of defense attorneys supported an amendment to Rule 16.

In districts where the rules are more expansive than Rule 16, 70 percent of private attorneys responded that federal prosecutors are consistent in their approach to disclosure, compared to 44 percent of federal defenders.

According to the Federal Judicial Center’s report, the Department of Justice has consistently opposed any type of amendment, generally contending that the government’s obligations are “clearly defined by existing law that is the product of more than four decades of experience with the Brady rule.”
The Supreme Court first articulated constitutional disclosure of exculpatory evidence in Brady v. Maryland, 373 U.S. 83 (1963).