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A small number of state and local governments have adopted open-file policies that require prosecutors to make available well before trial all information favorable to the defense, without regard to whether such information is likely to affect the outcome of the case.
Serious questions also arise under lawyers' professional conduct rules that require prosecutors to avoid excessive publicity and unnecessary statements that could cause public condemnation even of people who have been accused of a crime, not to mention people like Mrs. Clinton, who have never been charged with a crime.
In 2013, Montgomery fought changes to the Arizona state bar rules that require prosecutors to turn over new evidence that suggests a defendant was wrongfully convicted.
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Such a concealment can be a violation of Brady v. Maryland, the 1963 Supreme Court decision that required prosecutors to turn over favorable evidence to the defense.
Gov. Michael F. Easley of North Carolina has signed a bill that requires prosecutors to share all case files in felony cases with the defense.
There was no question, Chief Justice John G. Roberts Jr. wrote for the majority, that the reports should have been turned over under Brady v. Maryland, a 1963 Supreme Court decision that requires prosecutors to provide favorable evidence to the defense.
Justice Sotomayor made a broader point about the office, which has repeatedly been found to have violated Brady v. Maryland, the 1963 Supreme Court decision that requires prosecutors to turn over favorable evidence to the defense.
The nine supreme court justices reviewing whether Foster should face a retrial will have to consider whether the reasons given by prosecutors for dismissing all the black jurors pass a test established in the court's 1986 Batson v Kentucky ruling, that required prosecutors to provide non-racial reasons for the so-called pre-emptory strikes.
But the appellate judges reached across the border to adopt a New York legal standard that requires prosecutors to inform a grand jury of a possible defense only when it could result in "a complete exoneration," as opposed to a merely mitigating defense.
This beefs up previous provisions that required prosecutors to demonstrate a "directing mind" of a senior manager actively co-ordinating evasion.
Its decision came after the DOJ issued a new binding policy that requires prosecutors to give more detailed reasons when applying for gag orders and makes it much harder to seek one that lasts indefinitely.
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Justyna Jupowicz-Kozak
CEO of Professional Science Editing for Scientists @ prosciediting.com