On Jan. 4, 2010, the U.S. Department of Justice (DOJ) issued a
Guidance for Prosecutors Regarding Criminal Discovery
("Guidance") and announced related organizational and
training measures. These steps were widely seen as a response to
several recent embarrassing episodes in which DOJ prosecutors
failed to disclose exculpatory evidence to white collar criminal
defendants in high profile cases. The Guidance is codified at
Section 165 of the DOJ's Criminal Resource Manual.
The Criminal Resource Manual is part of the U.S. Attorney's
Manual. Although provisions in the U.S. Attorney's Manual do
not have the force of law and do not create rights, they must be
followed by federal prosecutors, and failure to do so may result in
disciplinary proceedings. Moreover, many of the policies in the new
Guidance relate to constitutional and statutory mandates that
clearly do have the force of law.
Failure of federal prosecutors to turn over exculpatory and
impeaching information to defendants is a growing crisis in the
criminal justice system. The Guidance and related organizational
and training measures should help to stem that crisis, but do not
go far enough.
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