There are No Secrets in Due Process

In the 1991 film thriller Cape Fear, Robert de Niro played a vicious ex-convict out to wreak revenge on the public defender who had represented him at his trial. Why? Because he knew the man whose job was to defend him had concealed evidence that might have gotten him acquitted. Yes, his own attorney.

From the perspective of a criminal defense lawyer, such a gross betrayal of the duty of a defender is so outrageous, one can somewhat understand the motives of the de Niro character (while certainly not — repeat, not — supporting his methods!)

Interestingly, in the original 1962 version of the film, the target of the terror was an ex-prosecutor, not a public defender, and concealment of evidence played no part in the story. Why the writers of the remake made the change is a matter for film critics to consider. But the irony is that in reality, failure to disclose evidence is a much bigger problem when it comes to prosecutors than defenders.

The U.S. Supreme Court, in a series of cases stretching across half a century, has made it clear that failure by a prosecutor to disclose information favorable to the accused is a violation of the Fourteenth Amendment right to due process of law. Yet the problem has continued to arise often enough that several years ago, a bill was introduced in the U.S. Senate to define exactly what, when, and how a federal prosecutor must disclose such evidence. The Fairness in Disclosure of Evidence Act of 2012 specified that prosecutors must disclose favorable evidence:

• When it is in their possession
• When its existence is known to them or would, with due diligence, become known to them
• Without delay after arraignment and before the entry of any guilty plea
• As soon as is reasonably practicable upon it becoming known, regardless of whether the defendant has entered a guilty plea.

Unfortunately, the bill died in committee.

Legislated or not, protecting your right to due process when charged with a crime is one of the most important jobs of your criminal defense attorney. Make sure you have one you can count on.