ARTICLE
28 January 2010

Department Of Justice Issues Guidance for Prosecutors Regarding Criminal Discovery

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.
United States Criminal Law

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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