Federal judges are divided over the necessity to change the rules of criminal procedure to put a greater emphasis and burden on prosecutors to turn over favorable information to defense lawyers, a Federal Judicial Center report concluded.
The center, the research arm of the judiciary, surveyed all U.S. Attorney’s Offices, thousands of defense lawyers and federal and magistrate judges to assess the merits of a proposed amendment to Rule 16, which governs discovery in criminal cases. A copy of the survey results is here. (Click here for an earlier report on the survey’s findings.)
The FJC said 43% of about 1,500 judges completed the online survey, which was conducted last year. Eighty-five of the 93 U.S. Attorney’s Offices participated in the review. More than 5,000 private criminal defense lawyers and federal public defenders provided their assessment.
The judiciary was evenly split on the need for amending the rule. But judges in districts with local rules or standing orders that require broader disclosure of information than what’s required in Rule 16 indicated greater support for a rule change than other judges in the judiciary. The Justice Department opposed a rule change. More than 90% of the defense lawyers who responded favored a change.
The two most frequent disclosure violations among prosecutors, judges reported, were the failure to provide favorable information on time and the scope of the disclosure to the defense.
Judges also reported they rarely hold an attorney in contempt and infrequently report a prosecutor’s conduct to the DOJ’s Office of Professional Responsibility, bar counsel or other disciplinary body.
The survey also said that more than 60% of judges said they did not have a case in the past five years in which a prosecutor or defense lawyer failed to comply with disclosure obligations.
In 2009, Judge Emmet Sullivan of U.S. District Court for the District of Columbia wrote to the Judicial Conference criminal rules committee asking the group of lawyers, judges and law professors to reassess, for a second time in recent years, an amendment to the rule.
Sullivan was the trial judge who oversaw the Justice Department’s botched prosecution of former Alaska Senator Ted Stevens. Sullivan called the Stevens case one of the most shocking examples of prosecutorial misconduct he’d ever seen during his time on the bench.
DOJ officials tout what they call a "comprehensive" approach to discovery reform in arguing against a rule change.
The department early last year issued new discovery guidance to all federal prosecutors. The memos, issued by then-Deputy Attorney General David Ogden, encouraged “broad and early” discovery. Also, the department announced its intent to provide more training for prosecutors.