Government Recycles Risk of Danger Argument To Convince Congress To Reject Enactment of Fairness in Disclosure of Evidence Act; Congress Should not be Misled (Again)!

A week or so ago over at Ellen Podgor’s White Collar Crime Prof Blog, guest blogger Jon May summarized the testimony of Deputy Attorney General James Cole concerning the Government’s position on the Fairness in Disclosure of Evidence Act 2012, an act which would require prosecutors in federal criminal cases to disclose exculpatory evidence in a timely fashion. Unfortunately, but not surprisingly, the Government is taking the position that Congress should not enact this important federal statute. Among other things, the Deputy Attorney General claims that requiring the Government to turn over this information would endanger the lives of Government witnesses.

As Jon May points out here, this argument relies on fear, not fact. It is, however, not the first time that the Government has used this argument. As I discussed in a previous post, in 1974, the Advisory Committee and the Supreme Court recommended amending the Federal Rules of Criminal Procedure to require the parties in federal criminal cases to exchange witness lists. This proposed amendment had a broad base of support, and ultimately both the Advisory Committee and the Supreme Court agreed that the change should be made. Before the Congressional Committee addressing the legislation, prosecutors argued (just like Deputuy Attorney General Cole) that pretrial disclosure of prosecution witnesses would result in harm to witnesses. Although the Committee recognized that there may be a risk in some cases, it ultimately concluded that “the risk is not as great as some fear that it is.”

Among other things, the Committee recognized that numerous states require the prosecutor to turn over a list of witnesses prior to trial, and the evidence before the Committee demonstrated that “these states have not experienced unusual problems with witness intimidation.” Moreover, and more importantly, in rejecting the fear of danger argument, the Committee also relied upon the views of the U.S. Attorney for the Southern District of California, a federal district that participated in a pilot project that involved the disclosure of witness lists. According to the United States Attorney himself: “Concerning the modifications to Rule 16, we have followed these procedures informally for a number of years. . . . . We have found that the courts in our district will not require us to disclose names of proposed witnesses when in our judgment to do so would not be advisable. Otherwise, we routinely provide defense counsel with full discovery, including names and addresses of witnesses. We have not had any untowards results by following this program . . . .”

Based on the evidence before it, including the testimony from the United States Attorney from the Southern District of California, the Committee concluded that it was “convinced that in the usual case there is no serious risk of danger to prosecution witnesses from pretrial disclosure of their identities”. It recognized that “[i]n exceptional instances, there may be a risk of danger.” According to the Committee, however, “[t]he Committee rule . . . is capable of dealing with those exceptional instances while still providing for disclosure of witnesses in the usual case.”

Although the Committee fully supported the witness disclosure provisions in Rule 16, the Senate version of the bill (based on the same flawed recently offered by Deputy Attorney General Cole) eliminated the witness disclosure provisions. The Conference Report justified the inaction by parroting the flawed argument made by the Department of Justice: “[A] majority of the Conferees believe it is not in the interest of the effective administration of criminal justice to require that the government or the defendant be forced to reveal the names and addresses of its witnesses before trial. Discouragement of witnesses and improper contact directed at influencing their testimony, were deemed paramount concerns in the formulation of this policy.”

Amazingly, to this day, federal prosecutors are not required to turn over the names of the witnesses that they intend to call at trial. This is because members of Congress bought into the same “fear not fact” argument that Deputy Attorney General Cole made recently. Congress should not be misled again. As the Committee that extensively studied the issue at the time stated: “[I]n the usual case there is no serious risk of danger to prosecution witnesses from pretrial disclosure of their identities.”

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