DOJ – Hiding the Manual on Hiding the Evidence


For the Accused, A Fair Trial Requires a Full and Open Discovery Process

When it comes to a government prosecuting an individual, the government always has the advantage.  Arguably, the government always has access to greater resources than the accused.  Their case begins with government-funded investigations that essentially have no limits on the amount of time and resources they can assign to a case.  Most prosecutors also have their own investigators who can go out and further investigate any issues that arise along the way, all at government expense.  If the prosecution finds that a particular case is too much work for a single lawyer, they can assign more to work the case.  Cases the prosecution deems important can have entire teams assigned to work them, all with administrative support, in-house investigative support, police support, and if some sort of expert is needed the government will provide that as well.

The accused rarely has anything near the kind of unlimited resources that would be required to even tip the balance back toward fair.  It is simply not possible in most cases to nullify the massive advantage of the state or the federal government with all its power and funding. Despite all those resources, law enforcement and prosecutors still get it wrong.  Something gets overlooked.  Something gets hidden away. The prosecution concludes something incorrect, and all those resources go into backing the prosecution up at trial. Innocent people go to prison.

In part because of their overwhelming advantage from the start, prosecutors are required to hand over certain information to the defense before trial.  Federal rules clearly require that evidence potentially helpful to the defense be made available to the defense.  This process if referred to as discovery.   State rules, including those in Colorado, support the federal rule covering what must be disclosed to the defense, and some even add additional requirements on the prosecution.  This is generally understood to be a requirement in order for an accused to have a fair trial.

Imagine the alternative.  When government agencies are allowed to accuse someone of a crime, and only disclose portions of the whole truth, they choose to present only the evidence that supports their accusation.  If the defense is never provided the whole truth for examination, the jury will never hear the whole truth either.  The prosecution could be allowed to hide facts that matter.  When that happens, more innocent people go to prison.

Prosecutors Cannot Be The Decision-Makers

We do not want the prosecution to be allowed to hide evidence they do not like or agree with.  It makes their jobs too easy. Considering what is at stake, prosecutors’ jobs should not be easy. You might think there is no reason to believe prosecutors would hide evidence, given the option. You would be wrong.  Unfortunately, prosecutorial misconduct is a real thing, and it happens more frequently than any of us should find acceptable.  From pre-trial arguments over discovery, to attempts to admit evidence that would not be allowed using some alternate justification or theory, prosecutors throughout our country regularly and creatively fight against the rules that were put in place to preserve the right of an accused to a fair trial.  Too often it becomes about winning, despite a prosecutor’s ethical obligation to do justice.

In 2012, a court ordered the release of a 500 page report detailing prosecutorial misconduct in the case against the late Senator Ted Stevens of Alaska.  That report concluded that the prosecution systematically hid evidence favorable to the defense.  What did the prosecution do when the report was provided?  They attempted to have it sealed.  This was a 500 page report that included allegations that the prosecution had deliberately hidden evidence that likely would have helped the defense.  They attempted to hide a report indicating they had hidden evidence!  In that case it did not work.  The court ordered the report released, and the Department of Justice shortly after issued a manual to its prosecutors governing how they should deal with discovery requests.

Hiding the Policy About How Much Truth to Tell

Want to see the manual?  So do I.  But we cannot.  The Department of Justice refuses to release it.  It is protected by an attorney work-product rule, which generally means that attorneys are not required to release information about their own notes, thoughts regarding a case, strategies, etc.  However, in this case, we are discussing a Department of Justice policy manual dictating how prosecutors throughout the country respond to requests for discovery.  The implications to the right to fair trial throughout our entire country could not be more directly at issue. The manual is at least 265 pages long.  To date, excerpts from approximately 18 pages have been released to the public.  Again, the prosecution has carefully selected excerpts, like evidence in a trial, that they believe conveys the message or story they want published, while hiding the vast majority of the relevant information. So what is DOJ hiding in the manual that was issued after they got into trouble for hiding evidence?  The manual reportedly contains “advice” to lawyers about what to disclose to the defense and what not to.  Plenty of advice, based upon the page count.  The fact that the DOJ refuses to make that advice public should be concerning to all of us.

If the goal for the government and the prosecution is, as they claim, to accomplish justice, why hide the manual? Why hide anything related to a policy regarding their duty to disclose? Why hide the facts in any case? What does society gain by prosecutors operating in such secrecy?  Come clean, prosecutors. Put all the facts out into the open for inspection and debate, and we will all move closer to a system of justice. If the goal, on the other hand, is simply to win without regard for disclosing the full truth, to be less transparent in how they prosecute, to keep prosecution as easy for them as possible, and to avoid those troublesome questions about whether the accused is actually guilty, they should definitely keep their manual hidden.

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