The Federal Criminal Procedure Committee of the American College of Trial Lawyers, which is chaired by Kostelanetz & Fink partner Sharon L. McCarthy, has published a guide for state and federal prosecutors “to help them comply with their Brady and Giglio obligations (“Brady/Giglio”) to ensure a fair trial and to help them avoid uncomfortable and unnecessary problems and accusations.” The guide was written by current and former prosecutors as well as defense attorneys who serve on the Federal Criminal Procedure Committee, and it was compiled with input from College members who are state prosecutors. The guide is intended for use by prosecutors to assist them in identifying and adopting best practices to guard against Brady/Giglio violations.
As the introduction to the guide notes, “Any prosecutor who has ever faced an accusation of a Brady/Giglio violation knows the uncomfortable emotions that go along with it. Suddenly it is not the defendant who is on trial but the prosecutor. While the law is clear that a Brady/Giglio issue does not necessarily involve a prosecutor’s good faith, any prosecutor who has ever been accused of violating disclosure obligations knows that their good faith is being challenged. Also, depending upon the violation, a prosecutor may be subject to an internal investigation or a state bar investigation. This guide offers advice on approaching Brady/Giglio issues to minimize failures to make appropriate disclosures and, consequently, to minimize accusations of misconduct. This is good for the prosecutor, fair to the defendant, and crucial for the proper administration of justice.”
“While some prosecutors have committed intentional Brady/Giglio violations, most violations are unintentional. Instead, they arise from poor management of evidence, a failure to see that a particular bit of evidence might have exculpatory value, or the failure of the investigating agency to provide information to the prosecutor. This guide suggests ways of managing evidence to avoid losing track of it. It also recommends ways of reviewing evidence that make it more likely that prosecutors will appreciate the exculpatory value of evidence and disclose it appropriately.”
The guide includes three sections: intake discovery management (the investigation); production discovery management (production to the defense); and a list of items that should trigger specific Giglio concerns for a prosecutor.
The full guide can be found here.