Prompted by the disclosure that U.S. Justice Department lawyers hid favorable evidence from the defense in the prosecution of the late Senator Ted Stevens of Alaska, Lisa Murkowski (R-Alaska) last year sponsored the Fairness in Disclosure of Evidence Act of 2012. The measure had bi-partisan support including from the late Sen. Daniel Inouye. But the bill died in committee and has not been introduced again this term. It premise is simple. It goes beyond the constitutional mandate of Brady v. Maryland to disclose materially exculpatory evidence, a highly subjective and therefore problematic judgment, to declare a “Duty To Disclose Favorable Information”:
In a criminal prosecution brought by the United States, the attorney for the Government shall provide to the defendant any covered information–‘(1) that is within the possession, custody, or control of the prosecution team; or
‘(2) the existence of which is known, or by the exercise of due diligence would become known, to the attorney for the Government.
Violation would enable a range of discretionary remedies including court costs, adjournments, disclosure, new trial, and imposition of attorneys fees and costs by the United States if it is found to be in violation of the duty. In a new study in the Mercer Law Review casebook co-author Fordham law professor Bruce Green urges adoption of the “favorable evidence” standard.