Such rules often create a rebuttable presumption that the prosecution will provide most of the discovery that Rule 16 requires, and often a good deal more, including exculpatory evidence
, soon after the arraignment.
Moreover, because American police officers are not required to actively seek out exculpatory evidence
, investigations are more likely to present a one-sided and incomplete picture of the events.
But since it is their job to believe in the defendant's guilt, they have little incentive to turn over, say, a single piece of exculpatory evidence
when they are sitting on what they see as a mountain of evidence proving guilt.
It may also lead to potential Brady violations if the prosecution did not recognize potential exculpatory evidence
Assuming that the resources for indigent defense were dramatically increased to a sufficient level of funding, defense counsel would still likely be unable to discover exculpatory evidence
that the prosecution has taken affirmative steps to conceal.
Unfortunately, the Supreme Court has never explicitly set out a general rule to apply in all exculpatory evidence
Disclosure of exculpatory evidence
was a contentious issue in the Lubanga trial.
Even if the Eighth Circuit declines to adopt the newly-presented evidence rule in all circumstances, at a minimum it should apply this standard in cases where the underlying claim is ineffective assistance of counsel for failure to present exculpatory evidence
In an extraordinary development in June 2008, the ICC Trial Chamber stayed Lubanga's trial because of the prosecutor's failure to disclose to the defence exculpatory evidence
(which could show that Lubanga was innocent).
C [section] 1983 that the government withheld exculpatory evidence
from a criminal defendant, courts typically use the Fifth or Fourteenth Amendment's due process standard as articulated in the iconic 1963 case of Brady v.
As announced by the Court in 1985, exculpatory evidence
is "material" under Brady "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.
Observers of the first and second instance trials, including from the OSCE, reported serious violations of fair trial standards, such as over-reliance on police evidence, and the failure of the authorities to adequately address the intimidation of defence witnesses and lawyers, to consider exculpatory evidence
, and to effectively follow-up on visible signs of torture.