The Prosecutor's Blue Book
Our criminal justice system is designed to prevent, to the largest degree possible, the possibility that an accused person is convicted of a crime they did not commit. One of the tenets that furthers this principle is that prosecutors have a solemn duty to disclose exculpatory evidence to the defense lawyer representing the accused.
A few years ago, as this Blogger was heading to trial with a client accused of a sexual assault, the assistant prosecutor turned over reports from the alleged victim's high school that she had, on at least two other occasions, made similar allegations involving fellow students that were proven false. Here's the catch: the assistant prosecutor was leaving her job to practice criminal defense and did not send me the evidence until a week before she left her job.
We were acquitted in that case but I've often wondered whether I would have received the evidence if the assistant prosecutor did not leave her post a month prior to the trial. Although our use of the evidence was limited by the trial court judge, it still had a favorable impact on the development of our defense.
In an interesting recent case, the National Association of Criminal Defense Lawyers sued the Justice Department using the Freedom of Information Act to obtain a copy of the federal criminal discovery blue book. The genesis of the case arose from the reversed conviction of former U.S. Senator from Alaska Ted Stevens, where prosecutors elected not to turn over materials necessary for his defense.
According to the D.C. Circuit Court of Appeals, the book contains, "information and advice for prosecutors about conducting discovery in their cases, including guidance about the government’s various obligations to provide discovery to defendants." The USDOJ refused to disclose the book, asserting it was exempt from FOIA as attorney-client work-product; both the district court and the Ninth Circuit agreed.
So the blue book will not see the light of day unless an Assistant United States Attorney leaks one to the press or to the criminal defense bar. Not a likely scenario.
Nevertheless, we can presume the blue book deals with exculpatory evidence and how to handle it from a prosecutorial point-of-view. As criminal defense lawyers, we would like to believe that such evidence is routinely disclosed so that innocent folks are not convicted and the path toward the truth is respected in each case.
The cynical among us say that's way too much to ask.