The First Circuit Court of Appeals reversed two District Court decisions excluding cooperating witnesses from testifying based on the alleged failure of the government to provide Brady discovery. The Supreme Court held in Brady v. Maryland that the government had a duty to provide the defense with all exonerating evidence. By exonerating evidence the Supreme Court meant evidence that is “favorable to the accused and material to guilt or punishment.” Specifically it requires the provision of evidence that is either exculpatory or impeaching in nature.

Joseph Prochilo is charged with possession of a firearm by a convicted felon and Elvis Guerrero is charged with attempting to buy cocaine for purpose of sale in separate cases. The cases against both men rely primarily upon cooperating witnesses. In each case the government provided initial Brady discovery relating to the cooperating witnesses. Defense counsel in both cases moved for further discovery.

Prochilo requested:

(1) details regarding the witness’s work with the United States Secret Service, the Essex County Sheriff’s Department, the DEA, and the FBI; (2) information regarding the other ATF cases on which the cooperator worked; (3) the witness’s cooperation agreements with government agencies other than the ATF; (4) a description of other firearms seized by the government as a result of the witness’s cooperation; (5) information about the cooperator’s contacts with other government agencies as they related to other matters or other investigations; and (6) a list of all benefits the witness received as a result of these contacts.

Guerrero requested:

to produce all information in its possession, custody, or control, regarding the witness, and identifying several categories of information.

Prochilo said that the requested information might reveal that the cooperating witness is “flawed”, that the discovery could help substantiate an entrapment defense, that many of the cases that the cooperating witness handled were thrown out requiring an explanation, and because only his counsel, not the government or the district court, will be able to judge what evidence is both favorable to him and material.

Guerrero claims that the discovery is needed for impeachment purposes.

The First Circuit reversed the District Court decisions in both cases. It held that for the defendants to obtain a court order for Brady material beyond what the government provides the defense must make specific requests for specific items and give specific reasons why the discovery is necessary. “[T]he defendant should be able to articulate with some specificity what evidence he hopes to find in the requested materials, why he thinks the materials contain this evidence, and finally, why this evidence would be both favorable to him and material.”

The problem with this is that you are asking defense counsel to request specific items from the prosecution’s file. If the defense knew what was in the file the defense would not need to ask for discovery. It is the basic requirement of due process and fairness that originally led the Supreme Court to require discovery of exculpatory evidence that is violated when you require the defendant to list specific items out of the government’s file so that he/she can use the items to impeach the cooperating witness.

Following the reversal of the conviction of Senator Ted Stevens for discovery violations by the Justice Department, judges, defense attorneys and prosecutors have discussed means to improve the discovery process.

Some including U. S. District Judge Emmet Sullivan who presided over the Stevens trial want to revise Rule 16 of the Federal Rules of Criminal Procedure which deals with discovery issues so that it requires that United States Attorneys turn over all exculpatory evidence. Currently Rule 16 does not require the government to turn over all exculpatory evidence but the United States Supreme Court in Brady v. Maryland mandated that the government provide all material exculpatory evidence to the defense.

The problem with the Brady rule is that it allows the government to determine what is material and what is not. Since the government is not privy to the defense theory of the case even the U. S. Attorney who conscientiously attempts to provide Brady discovery may fail and their have been enough instances where U. S. attorneys purposely hold back on providing discovery.

The Justice Department came out against requiring the discovery of all exculpatory evidence. Assistant Attorney General Lanny Breuer said that providing all exculpatory evidence “seriously comes into conflict” with victim rights, witness security and, in some cases, national security. Instead he suggested, that while the rule may be amended to bring into one place the current rule and all judicial decisions expanding discovery , current discovery requirements should not be changed. He said the Justice Department would improve training in discovery issues for assistant United States attorneys and would create a position in Washington responsible for improving discovery compliance. Breuer’s comments came at the Judicial Conference of the United States’ Criminal Rules Advisory Committee in Seattle last week.

The final decision will be up to the Judicial Conference of the United States which has control over amendments to the Rules of Criminal Procedure. Its membership consists of the chief justice of the Supreme Court, the chief judge of each judicial circuit, the chief judge of the Court of International Trade, and a district judge from each regional judicial circuit. It generally holds two meetings a year in March and September. It is the principal policy making body of the Federal Courts.