New Criminal Rule 5(f) Could Alter Brady Disclosure Timing
On November 30, 2020, LSW founding partner John Siffert and associate Brice Jastrow published an article in Law 360 analyzing the unprecedented changes to the Federal Rules of Criminal Procedure mandated by the Due Process Protection Act signed into law in October, 2020, and their potentially wide-ranging effects on white collar practice.
These changes to the Federal Rules were unprecedented not only because Congress bypassed the normal process by which the Rules Committee of the Judicial Conference proposes changes to the Federal Rules after significant deliberation and input from stakeholders. Just as significantly, the rule changes have the potential to fundamentally alter the timing of exculpatory evidence provided to defendants in federal criminal prosecutions.
The newly adopted Rule 5(f) requires district courts to issue orders at the outset of a federal criminal prosecution confirming the federal prosecutor’s obligations to disclose exculpatory evidence to the defense. While the new Rule 5(f) does not itself set a timeline for the disclosure of such material, at least one district court already requires exculpatory material to be disclosed by the government as soon as possible, and other district courts may follow suit.
It is also possible that the new Rule 5(f) will lead to a patchwork of local orders that differ regarding the timing of disclosure of exculpatory material. As inconsistent local practices could lead to inconsistencies and inequities, the Rules Committee may consider adopting a national standard for the timing of disclosure. The authors recommend that such national standard would need to be carefully drafted to avoid creating a conflict between the local orders and any national standard.