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New Standards for Brady and Giglio Disclosures
For the past five years, the white-collar criminal-defense bar has been working to enhance the obligations of federal prosecutors to disclose exculpatory and impeaching information under Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and their progeny. In the past few months, those efforts have begun to bear significant fruit.
In 2004, after a study by the American College of Trial Lawyers showed that the current system was not working, the Advisory Committee on Federal Rules of Criminal Procedure began to consider an amendment to Rule 16 that would codify and enhance the government's disclosure obligations. At first, the Department of Justice (DOJ) argued that no changes were necessary. As it became clear that the Committee was seriously considering such an amendment, the DOJ changed its position and, in a preemptive strike, issued in October 2006 a new section, ' 9-5.001, of the U.S. Attorneys' Manual ('USAM') that increased the obligations of federal prosecutors to disclose Brady and Giglio information. Later that same month, the Committee reviewed the new USAM section and decided that it did not go far enough ' that a federal rule, enforceable by the courts, was necessary and appropriate. It therefore voted to recommend to the Committee on Rules of Practice and Procedure ('the Standing Committee') that an amendment to Rule 16 be adopted.
In June 2007, the Standing Committee met to consider the proposed amendment to Rule 16 and declined to approve the recommendation. Whether the Standing Committee will move forward is unknown. What is certain is that all criminal-defense attorneys should become familiar with the new USAM disclosure rules ' which are binding on all federal prosecutors ' and with the issues that the Standing Committee faces in connection with the proposed amendment to Rule 16.
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