By Harlan Protass, “‘Lafler’ and ‘Frye’ provide important remedy to ­criminal defendants who receive ineffective counsel, but ­neither helps lawyers decide whether to go to trial….According to the National Association of Criminal Defense Lawyers (NACDL), however, confusion exists as to what evidence the government must disclose. See www.nacdl.org/discoveryreform. Some courts and the U.S. Department of Justice have adopted a rule allowing prosecutors to suppress favorable evidence based on their prediction as to whether that evidence will be ‘material’ — a blatant opportunity for concealment. More significantly, uncertainty continues as to when favorable Brady material must be disclosed. According to the NACDL, most courts apply a vague and confusing rule requiring disclosure only ‘in time for the defense to reasonably use the evidence.’ Moreover, most federal district courts don’t have clear directives specifying the timing of disclosure. And DOJ’s own guidelines still provide ­prosecutors with broad discretion concerning the timing of Brady disclosures. (Read Full Article Here)