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.