Information that is favorable to the accused because all favorable information is critically relevant to that determination. The commitment of nacdl and the foundation for criminal justice to seek reform in the area of fair disclosure is one of the many areas in which we are working to make our criminal Justice System fairer and more humane across a wide range of issues. In recent months we have worked to expand access to counsel, promote reform of the nations indigent reform system, address ethnic and Racial Disparity in the criminal Justice System, explore the impact of militarization of the nations Law Enforcement infrastructure, rein in overcriminalization and promote the restoration of rights and status for those who have had a brush with the criminal law. All of this is a reflection of the core mission of americas criminal defense bar, libertys last champions as we define ourselves. Fairness is the bedrock principle of any society and of any judicial system. The reforms ensuring fairness proposed in material indifference are not ideals, but rather are realizable actions that can and should be employed. And so i am proud to welcome you to join with us in the release of this important report, a report that we hope will lead to the vital reforms essential to ensure a fair trial for every accused person. Now, to introduce the extraordinary speakers we have gathered for this event and to moderate the discussion, i am pleased to invite nacdls executive director Norman Riemer to the podium. Good afternoon and thanks very much to our president , theodore simon, for the introduction and also for the support thats been provided for this project byn acdl and the foundation for criminal justice. Material indifference, how courts are impeding fair disclosure in criminal cases, illuminates a problem that is widespread in the criminal Justice System. To fully appreciate the importance of this report, weve assembled a distinguished Panel Including the authors, a prominent judge who has recognized the problem, and a practicing attorney who understands the depth of the challenge and took steps to address it during his tenure at the Justice Department. Before i call upon our panelists, i want to put the problem of fair disclosure in the real world context of how americas criminal Justice System actually works. In the nations civil Justice System when individuals, companies, or Government Entities bring lawsuits to address a wrong, to seek compensation for injury, or for a court order to enforce a right or prevent a harm, our legal system provides for early, open, and complete disclosure. Parties can and must provide access to witnesses, disclosure of all documents, opportunities for pretrial depositions, and interrogatories and more. In fact, the failure to provide full and fair disclosure in a civil proceeding to ensure that there is no trial by ambush can lead to very severe monetary and other sanctions. But throughout most of the country in both state and federal criminal cases, disclowe smur to the accuse is minimal and highly limited. So we have a system that provides when what is at stake is usually a sum of money, there is full disclosure. But when a persons reputation, liberty, or even in some cases his or her life hangs in the balance, as it does in all criminal cases, discovery is very limited. This is extremely problematic for two reasons. First, because prosecutors bring criminal charges at the time and place of their choosing, they do so after having fully investigated the case, including interviewing all potential witnesses. They control the tempo and timing of arrest and indictment. They have exclusive control of the investigative reports. Yet in most places prosecutors do not even have to reveal the names of witnesses unless and until those witnesses testify at trial nor do they have to provide the accused with access to the investigative reports that were compiled during the investigation. Even statements of testifying witnesses often do not have to be revealed until late in the process, sometimes on the eve of trial or when the witness testifies. Accordingly, favorable information, that is information that tends to support lack of guilt of the accused or mitigate wrongdoing or that which undermines the believability of witnesses and evidence that the prosecution will use to prove guilt, is within the sole and exclusive control of prosecutors unless and until they decide to provide it to the defense. Another hallmark of the criminal Justice System is that it is adversarial. Prosecutors view cases through the prism of their own theories. Prosecutors also seek to win cases, as they should, but that means that we have a system in which the party that brings the charge and is zealously committed to theory of prosecution must recognize information that undermines that theory and, further, even though the prosecutor has every incentive to win the case, he or she must also decide whether and when to disclose the very information that may undermine the prosecution they are bringing. More than 50 years ago, the Supreme Court in the brady case held that prosecutors must provide the helpful information that has been uncovered in Law Enforcements investigation to the accused. Failure to provide such information violates due process where the information withheld is material to guilt or punishment irrespective of good or bad faith. That is a core aspect of a fair trial, and well it should be. Without that disclosure it may never be known and there can be no confidence in the outcome of the case. More than 300 dna exonerations, which have scientifically established the innocence of wrongfully convicted persons show that favorable evidence was withheld from the defense in an alarmingly High Percentage of exonerations. But biological evidence that can definitively establish innocence is available in only a tiny, minuscule percentage of all criminal cases. Most cases turn on the reliability or falability of human perception, the accuracy or inaccuracy of witness accounts, the truthfulness or falsity of testimony all within the vast gray zone of interpretation and inference. Thus, in the majority of cases, the disclosure of helpful information to the accused is necessary if the jury is to make an informed, fair, and accurate assessment of the case. Yet, too often information is not disclosed or too often when the accused learns of the helpful information, its too late to make a difference in how the case is presented or prepared or considered by a jury. While there are certainly many documented cases of prosecutors who have willfully withheld helpful information, that is not what this report addresses. The problem is far more pervasive and insidious than simply a handful of bad apple prosecutors. There is an inherent tension between the adversarial system and the prosecutorial duty to disclose, and that is why, that is why the courts have the ultimate responsibility for ensuring fair, prompt, and effective disclosure of information helpful to the accused. And so the report we release today, material indifference, is an analysis of how courts fulfill that critical function. Im pleased to introduce our first speaker, one of the authors of the report, professor kathleen cookie rodofi, shes a professor of law and the former director of the Innocence Project and a founder of the innocence network, an affiliation of organizations working to address Wrongful Conviction. Another the professors noteworthy work is preventable error, a report on prosecutorial misconduct in california from the period 1997 to 2009. In 2010 the professor launched the Veritas Initiative at santa clara law school. Nacdl and the foundation for criminal justice are proud to partner with ver tas and santa clara this project. Professor, im going to invite you up here to tell us about the project and how the courts are doing in ensuring fair disclosure in criminal cases. Thank you. Thank you. The fairness of a criminal trial depends on the ability of an accused to present a defense, and, of course, to present a defense depends on the access a criminal defendant has to favorable evidence that might exist in his case. The very fundamental nature of this principle was acknowledged by the u. S. Supreme court 50 years ago when it decided the case of brady versus maryland. In brady the court held that a prosecutor has an obligation to disclose all favorable information that is material, and that failure to do so violates a defendants right to due process. The American Bar Association reinforced this principle when it promulgated model rule 36. 8d and that rule states that a prosecutor is required to make timely disclowe smur of all evidence or information that tends to negate guilt or mitigate punishment. So if this principle is so fundamental to our judicial system, how is it that there are so many Wrongful Convictions that have been that are the result of at least in part prosecutors withholding favorable information . In conducting this study, we focused on three questions. First, to what extent are courts consistent in the use and application of the materiality standard when deciding brady claims. Second, what other issues or factors are underlying or influencing courts in resolutions of brady claims. And, third, to what extent is favorable evidence being withheld from the defense . You can see from the questions that our focus was more on the courts than on prosecutors. We wanted to better understand the role that judges play in shaping disclosure of favorable information in criminal cases. Now, a note on the methodology. We looked at five years of brady decisions litigated in federal court. That was approximately 5,500 cases, and that included both cases originating in both state and federal court. We closely examined a stratified random sample of those cases, roughly 1,500 decisions. From those we identified 620 where the courts decision included an analysis of a brady claim. Before i go any further i want to point out the inherent limitations of this study. A brady claim is an allegation by the defense that a prosecutor has withheld favorable information. The question of the extent to which prosecutors are withholding favorable information is actually impossible to answer. Because brady violations by their very nature involve hidden or withheld information, and withheld information may never surface or become known. So we can only deview those cases where the withheld information is ultimately uncovered. So for purposes of the study, we examined the available information, and that body of information included or consisted of records of written opinions in cases where the defense learned information had been withheld, filed a brady claim, and the court issued a written opinion. Those are the cases that form the basis of the study. And keep in mind that written opinions almost exclusively are found in cases that went to trial, and we know that across the country no more than 5 of cases go to trial. So that means that we have no information on 95 of the cases. This is important because it means the evidence that we did uncover in this study in all probability is just the tip of the iceberg. Now, i mentioned a minute ago that the obligation a prosecutor has to disclose favorable evidence is derived from two sources. First, the due process clause of the United States constitution as or tick lated by the United StatesSupreme Court in brady versus maryland, and, second, the American Bar Associations rules of professional conduct. I will address each of these separately beginning with the brady analysis. Under brady a prosecutor is required to turn over all favorable information that is material. The problem starts there. How do we define material evidence . To decide whether something is material, you have to first decide whether it is relevant. To determine relevance, you have to know the case, the whole case, and not just the prosecutions theory of the case. As Justice Stephens ex plains, quote, the significance of a piece of evidence can seldom be predicted accurately until the entire record is complete. Yet, that is exactly what we expect prosecutors to do in applying a materiality standard pretrial without any sense of the perspective of the defendant. Complicating the problem further is a prosecutors dual role. Prosecutor is a minister of justice, but importantly a prosecutor is also an advocate with the skills, the training, and ability to effectively prosecute cases and win convictions. What is inherently difficult about the prosecutor making the materiality decision is that he cannot be neutral within this context. Yet when deciding whether information is material or relevant, that is exactly what prosecutors are expected to do, to set aside their role as advocates, pore through the evidence with an open mind, recognize the importance of the information to the defense, and make an objective decision about whether or not to disclose it. Now, prosecutors, like the rest of us, are subject to what psychologists call confirmation bias. This means that we tend to evaluate what we perceive in a way that is consistent with what we know or believe. A prosecutor with the responsibility of ultimately proving the defendants guilt in possession of Police Reports that support the defendants guilt will perceive his universe through this lens and will tend to view information in a way that is consistent with that belief that the defendant is guilty. Information thats inconsistent with that belief is likely to be viewed as not relevant. Information not relevant is not material and, therefore, is not disclosed to the defense. So even the best intentioned prosecutor, and most prosecutors are, is not in a position to objectively decide materiality pretrial through the limit eed lens of the prosecutions theory. While most seek to do their job with integrity, this is not true of all prosecutors. For those inclined to practice close to the ethical line, the pliability of the materiality standard and its inconsistent application invite a kind of gamesmanship without regard to the guilt or innocence of the defendant. Now, the dynamics and the psychological pressures affecting the materiality decision is not limited to the prosecutor. Judges, too, have a kind of tunnel vision or confirmation bias that affects how they decide cases. In 1985 the u. S. Supreme Court JusticeHarry Blackmon acknowledged that, quote, the reviewing court faced with the verdict of guilty, evidence to support that verdict, and pressure to finalize judgments is in little better position to review the withheld evidence than the prosecutor. So it is not surprising that when the decisions we examine turned on the question of materiality, courts ruled in favor of the prosecutor 86 of the time. We identified 210 decisions where favorable evidence was either withheld or disclosed late. Of those, courts found brady violations in 22 cases. In the remaining 188 decisions, the court decided the evidence was not material or the late disclosure did not materially prejudice the defendant. We also found that courts applied the materialality standard inconsistently. We did this by comparing cases that had where the undisclosed information was similar in factual context that were similar or nearly identical and found that courts were inconsistent in how they ruled on those cases. We also identified 65 decisions where prosecutors disclosed the information but disclosed it late. In 78 of the late disclosure cases, the prosecutor did not disclose the evidence until the trial was well under way leaving virtually no time to make use of the evidence at trial or to conduct an investigation that may have been prompted by a revelation of the new information. Despite the obvious prejudice to a defendant in this situation, courts found that the late disclosure violated the defendants Due Process Rights in just 1 out of 65 cases. We also found that in some cases where prosecutors failed to disclose favorable information, courts excused the failure by imposing a Due Diligence rule on the defendant. Shifting attention away from the prosecutions obligation to disclose favorable evidence to blaming the defendants failure to discover the information on their own. And, finally, turning our attention to the courts role in promoting compliance with the aba rule, unfortunately i can be very brief. They almost never expressly point to the prosecutions duty and responsibility to disclose favorable evidence as they are required to do by our profession, by aba rules of professional conduct. Now, im going to turn the podium over to Tiffany Jocelyn and then were going to open it up for questions, and im going to ask invite my coauthor todd friese to participate. Im going to give tiffany a more complete introduction. Tiffany is my colleague. She plays a key role in nacdls effort to prevent and oppose every criminalization, over federalization, and the erosion of intent requirements in criminal statutes. She has led Numerous Research projects for nacdl and most notably she played a key role in an extraordinary collaboration between nacdl and the Heritage Foundation when she coauthored without intent how congress is eroding the criminal intent requirement in federal law. Im going to ask you to pick up on where the professor left off and take us through some of the reports findings and recommendations as well. Thank you, norman. And before i begin, i just would be remiss if i didnt take a minute and say thank you to my coauthors. Well hear from todd late r s the rest of this very distinguished panel. So as you just heard from cookie and as has been observed by many, the current permutation of brady has been become a hindrance to the defendants access to favorable information. This is in part because the odds are against the defendant. Prosecutors who withhold favorable information overwhelmingly have that decision affirme