Complete. Ord is yet that is exactly what we expect prosecutors to do in applying materiality standards to pretrial without any sense of the perspective of the defendant. Complicating the problem further, is the prosecutors dual role. Prosecutor is a minister of justice, but importantly a advocater is also an with the skills, the training and ability to effectively winecute cases and convictions. What is inherently difficult thet the prosecutor making materiality decision is that he cannot be neutral within this context. When deciding whether information is material or relevant, that is exactly what expected to do, to set aside their role as advocates, pour through the open mind,th an recognize the importance of the information to the defense, and an objective decision about whether or not to disclose it. Are subject to what psychologists call confirmation bias. Tend tons that we evaluate what we perceive in a way that is consistent with what believe. R a prosecutor with the responsibility of ultimately guilt, the defendants in possession of Police Reports that support the defendants will perceive his universe through this lens. And will tend to view in a way that is consistent with that belief that guilty. Ndant is information inconsistent with that belief is likely to be viewed as not relevant. Not relevant is not found material and therefore is defense. Osed to the so even the best intention prosecutorsnd most are is not in a position to materialitydecide pretrial through the limited lens of the prosecutions theory. The ply ability of the standard applicationnsistent invite a kind of game machineship without regard to or innocence of the defendant. The dynamics and psychological pressures affecting the materiality decision is not limited to the prosecutor. Kind of tunnel a vision or confirmation bias that cases. How they decide in 1985, u. S. Supreme Court Justice harry black man acknowledged that, quote, the reviewing core faced with the todict of guilty, evidence support that verdict and pressure to finalize judgments position to better review the withheld evidence than the prosecutor. Surprising that when the decisions we examine turned on the question of materiality, courts ruled in favor of the prosecutor 86 of time. We identified 210 decisions where favorable evidence was either withheld or disclosed late. Those, courts found brady violations in 22 cases. The remaining 188 decisions the court decided testified was the lateial or disclosure did not materially prejudice the defendant. Also found that courts apply the materiality standard inconsistently. Did this by comparing cases the undisclosed information was similar in contexts that were similar or nearly identical and found that courts were inconsistent in how cases. Led on those we also identify 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 way. Was well under leaving virtually no time to make use of the evidence at to conduct an investigation that may have been revelation of the new information. Despite the obvious prejudice to in this situation, courts found that the late disclosure violated the defendants did you process rights in just one out of 65 cases. We also found that in some cases failed toecutors disclose favorable information, failure bysed the imposing a Due Diligence rule on the defendant, shifting attention away from the obligation to disclose favorable evidence to blaming the defendants failure to discover the information on their own. And finally, turning our the courts role in promoting compliance with the a. D. A. Rule, unfortunately i can be very brief. While courts sometimes encourage prosecutors to resolve doubtful questions in favor of disclosure, they almost never expressly point to the prosecutions duty and responsibility to disclose a they arevidence as required to do by our offession, by a. B. A. Rules professional conduct. The podiumng to turn over to tiffany jocelyn, and for were going to open up questions, and im going to coauthor, todd frees and tiffany to participate in questions. Hose im going to give tiffany a more complete introduction if i may. Colleague at nacdl where she serves as counsel for crime policy. She plays a key role in nacdls and opposerevent overcriminallization, overfederallization, and the erosion of intent requirementings in criminal statutes. She has led Numerous Research nacdl and most notably she played a key role in an extraordinary collaboration between nacdl and the heritage coauthoredwhen she without intent, how congress is eroding the criminal intent requirement in federal law. So tiffany im going to ask you to pick up on where professor ridolfi left off and take us through some of the reports findings and recommendations as well. Thank you, norman. Would bebegin, i remiss if i didnt take a minute and say thank you to my coauthors. Well hear from todd later, we just heard from cookie. A teamport was truly effort and im so proud and honored to have them by my side as well as the rest of this very distinguished panel. Heard from cookie and as has been observed by many, the current perfect mutation of brady has become a defendants the access to favorable information. This is in part because the odds defendant. The prosecutors who withhold favorable information overwhelmingly have that decision affirmed by courts. When undisclosed information surfaces, it is rare Justice System to provide a remedy to the accused. My colleague just discussed there are several disturbing issues that arise in brady jurisprudence that can effectively relieve prosecutors their disclosure obligationings and deprive defendants from access to information. For example, courts frequently impose a Due Diligence defendant. On the if the defendant could have found testified on his own then there is no brady violation. Strict reading of brady, prosecutors can disclose very without the risk of upsetting a conviction. Unnoticed. T gone disclosure of all favorable information is not the policy of justice, fort of example. Adherence toal bradys materiality standard without regard to the integrity become aocess has direct endorsement of nondisclosure of favorable information. Found, what our study that is what our study supports. That is why this problem must be addressed on the front end. The brady standard used by courts following a conviction is not the rule by which prosecutors should measure their disclosure obligations in advance of a trial. Requiringstandard disclosure of all favorable information, accompanied by for noncompliance, must be established. This sort of front end reform can be accomplished through passage at the state and the levels of a statute consistent with the a. B. A. Model 3. 8d that my colleague described. This requires amongst other things disclosure of all favorable information. This reform could also be judiciaryed by the through changes to judicial rules and it can be accomplished judges andal individual Defense Attorneys through the request in granting to disclose all favorable information. So lets discuss these mechanisms for reform a bit more. Ethical rule. This is one way that Defense Attorneys and judges can actually obtain immediate a particular criminal proceeding. While simultaneously encouraging changes in disclosure practices. Defense attorneys, and i know in thise many of you room, Defense Attorneys should request an order from the judge in every case requiring prosecutors to abide by rule 3. 8d. And that order should also set toth sanctions for failure comply. This is a direct mechanism for way tong reform, and a counter the problems that have been identify in our study. The presumption that most lawyers will comply with orders creates a reasonable probability that widespread use could have a effect on willful nondisclosure. Is notse, this approach a magic bullet. It will not solve the problem. Effectivenesss will still hinge on the willingness of courts to enforce the order. A proven unwillingness of courts to reverse convictions, can only wonder about their willingness to hold prosecutors in contempt. Bring mess to a judicial rule change, another mechanism for reform discussed in the report. This is the type of reform that would address the arbitrary evidenced by the study. Nationwide, judicial branches positioned to take action to improve defendants information. Orable by amending core rules and policies to establish clear and guidelines that track model rule 3. 8d, the judiciary could decrease discovery games manship and help restore balance to our Justice System. In fact, some federal judges have already been calling for sort of reform to the federal rule, rule 16 of the criminal rules of federal procedure. Like necdl, they have pushed unsuccessfully thus far to remove the materiality limitation from rule 16. The findings of the study lend evidence to what these supporters have been saying. Standardiality disincentivizes the disclosure of favorable information. Changes at the state and federal levels would culture ofpromote a compliance. Of course the most important and and most effective mechanism for reform of prosecutorial disclosure would come through legislation. Legislation that sets forth a for disclosure of favorable information. As well as establishes rules for the disclosure process. Such legislation would have a impact. Ide of fairness and disclosure evidence act of 2012 exemplifies thisort of reform that study demonstrates is critically needed. Flawedct response to the prosecution of the late senator ted stevens, senators murder ski inou,rs murkows ki and and others introduced the fairness and disclosure of in 2012. Act they did this to provide clear meaningful standards to govern the prosecutions disclosure obligations. These senators saw what happened to their colleague and had the courage of their convictions to action. This act, the fairness and disclosure of evidence act, prosecutors to disclose all information that may reasonably appear favorable defendant. Effectively prohibiting the government from using bradys materiality standard to limit its disclosure obligation. The favorability of information trigger what would disclosure obligation. It does provide for exceptions where disclosure could be did itry mental to witness safety, and the act also includes a mechanism for seeking a protective order and exempt information from disclosure. If legislation like this were defendants would have increased access to favorable information and that would lit gaig system wide. The enactment of this legislation would also address by ourblems evidenced study and discussed in our report including the common practice of late disclosure, the Due Diligence, and whichequency with incentive deal information is not disclosed. Wouldming provisions require disclosure before the entry of any guilty plea, there some of the pressure on innocent defendants. The weight of legislative action greater than any other mechanism. It is an enforceable message fair disclosure is fair e quis it to requisite to fair process. Bringingmodel for about sensible reform through legislation. Ensuring that compliance would remove much of the games manship the is common place in discovery process and would result in less lit baition and a fairer process. Unfortunately, politics got in the way of fairness disclosure of 2012, it was not passed, nor was it reintroduced in the current congress. Is sitting on a cutting room floor, waiting for another group of legislative and picksome back it pick it up and move it over the finish line. Legislation need not only take place on the federal level. Federal action may be stalled now, but state legislators poised to country are take this reform legislation and their ownw in jurisdictions. The courts reliance on as a central inquiry and a brady violation claim has standard by the which prosecutors measure their disclosure obligationings. Materiality standard is removed as a barrier to fair are reale and there consequences for withholding favorable information, the will remain unaccountable to defendants. This issue,rity to to provide prosecutors and courts with clear guidance, and that those facing criminal charges are accorded the rights that they deserve, there needs to be reform. Thank you very much. Thank you very much, tiffany. Before i introduce our next introducedo want to todd frees, hes a Research Attorney at the Veritas Initiative at the santa clara andersity scal of law operations direct for for the Northern California innocence project. He focuses on promoting policies, to help prevent Wrongful Conviction and todd questions later in the program. Our next panelist will bring the practitionerf a and former Government Official who attempted to tackle the issue of fair disclosure. W. Ohing again is governmentair of the and regulatory litigation group. Decade asthan three an experienced counselor and litigator he focuses his withice on disputes complex policy dimensions. Inasserts several stints government including serving as Legal Counsel at the United States department of defense, chief of staff and counsel to general janety reno. Assistant attorney general for the civil division. And most Deputy Attorney general of the United States. While in that position in 2010, he issued a Ran Department known by many as the ogden memo, taken in response to a working group that was convened after dismissal after charges against the late senator ted stevens, the dismissal which followed the disclosureof serious violation business the prosecutors in that case. Mr. Ogdenored that a forward. Itten ogden. Thank you, norm. I feel very honored to have been asked to do it. Im really here because i think the authors and the organizations, necdl and veritas and the foundation for criminal justice, are to be commended for is a set of data subject that is extraordinarily important and difficult. To not in a position specifically endorse the recommendations. I think theyre serious recommendations. But i do think this makes, this greatmakes a contribution. I do have the perspective of issuesdealt with these on the outside as defense dealel, as having tried to with them, as i think norm accurately described my effort as Deputy Attorney general when foundational some and fundamental issues in the wake of the stevens prosecution. The subject is important because it relates to the most fundamental criminal justice all, the guilt or innocence of the accused. Whether, when and how the shares information with the defense also goes ourctly to the integrity of legal system, the participants in it, and our institutions of justice. Defense counsel have limited discovery tools at their typical casein a often have very limited resources to conduct their own investigations. For whateverution reason fails to disclose information favorable to the may well mean that it never comes to light. No greater marm can be done by Justice System than conviction of innocent people. Thehe rules that govern obligations disclosed are very mechanisms toare oversee and enforce them. The subject is not only alsotant but it is difficult. Certainly material that is accused or of the undermines the credibility of a prosecution witness must be disclosed. For information of more questionable apparent significance, many believe its prosecutors to compete the concerns include the harmtial of harassment or to witnesses, the integrity of investigations. Is actuallyrmation favorable to the accused may be difficult to assess, and may some extent on the eye of the beholder, and the ways in which it might be used. So where disclosure of more favorable information would significant marm in these areas, i think one may it makes senser to mandate it. Thats what makes it hard. So the newly leadership of the department of justice of which i was then a part, tried to chart a new course. Justttorney general had made a difficult decision to abandon the failed senator ted stevens prosecution, which had had been plagued by and destroyed by violation of the brady doctrine. As Deputy Attorney general late in the spring i put together a broad working group and directed them to under take a thorough review of the departments policies, practices and training related to criminal Case Management and discovery and to areas for improvement. Early in 2010 based on the work implementedp we changes in Department Policy meant to provide direction and resources to prosecutors in obligations tor disclose favorable information. For no claim to perfection that work product or any other product. But heres what we did. We set forth structured to gather, review, disclose and make a record of information, potentially favorable to the aaccused. A comprehensive gathering, a comprehensive review and a timely and appropriate disclosure, and Record Keeping understanding of what had had been done. Direction also to remain vigilant throughout the case to obligate disclosures on an ongoing basis. We establish a new training protocol. And provide a dedicated , to assisthat prosecutors. We also reminded prosecutors that when disclosure obligations are not clear or when other competing considerations seem to against disclosure, prosecutors may seek a protective order from the court timing andthe scope, form of disclosures, and that specific direction was given. The federal prosecutors duty is to seek justice, and spoke about the truth seeking role of the prosecutor. The government wins its point when ever justice is done and citizens in the courts and we stated that providing broad and early discovery often promotes the truth seeking mission of the and foster is a speedy resolution in many cases. It also provides a margin of error. Encourage prosecutors therefore to provide broad and with discovery consistent any counterveiling considerations. I believe today as i did then panelthink others on the believe that prosecutors try hard to live up to those standards, most of them. Course they do have a dual role. Though they are ultimately and theof justice truth, thats their ultimate mission, they are of course tasked as a primary matter with seeking convictionings of those they believe are guilty. An obviouslyle very important function, does affect the lenses or the prism which they see issues. Advocates pursuing a val i goal through to vi