Judicial Conference to Review Prosecution Disclosure Obligations

Amending the rules of criminal procedure to require prosecutors to disclose any exculpatory information to the defense will be considered during the October meeting of the Judicial Conference Advisory Committee on the Rules of Criminal Procedure, the committee chairman said in a letter to a federal judge in Washington published this week.

Judge Emmet Sullivan of U.S. District Court for the District of Columbia wrote the committee in April urging it to re-examine amending Rule 16 to require the disclosure of any exculpatory information. In 2006, the Justice Department opposed the amendment, according to Sullivan’s letter. Justice lawyers argued then that modifying the U.S. Attorney’s Manual—to include a section on disclosure obligations—was sufficient.

Sullivan, who presided over the Ted Stevens trial, launched a criminal contempt investigation of the Stevens prosecution team stemming from concern that government lawyers failed to follow court orders to produce information to Stevens’ attorneys. Disclosure violations, the judge noted in his letter to the rules committee, surfaced months after a jury found Stevens guilty.

“An amendment to Rule 16 that requires the government to produce all exculpatory information to the defense serves the best interests of the court, the prosecution, the defense, and, ultimately, the public,” Sullivan wrote in his letter to the committee chairman, Judge Richard Tallman of the U.S. Court of Appeals for the 9th Circuit. Sullivan's letter is here.

In a letter dated July 2, Tallman responded to Sullivan’s request, saying that the rules committee is planning to take up the issue at its meet in October in Seattle. Click here for a copy of the letter.

“As I am sure you know, this matter is currently being reviewed at the highest levels of the executive branch,” Tallman wrote. Tallman noted that the Justice Department has created a working group focused on the issue. “I have received assurances that the Department will report back to the committee with its positions on the issue by our October meeting.”