Enforcement of Statutes, 121709 FERC, PL10-1-000

Docket Nº:PL10-1-000
Party Name:Enforcement of Statutes, Regulations, and Orders
Judge Panel:Before Commissioners: Jon Wellinghoff, Chairman; Suedeen G. Kelly, Marc Spitzer, and Philip D. Moeller. Kimberly D. Bose, Secretary.
Case Date:December 17, 2009
Court:Federal Energy Regulatory Commission

129 FERC ¶ 61, 248

Enforcement of Statutes, Regulations, and Orders

No. PL10-1-000

United States of America, Federal Energy Regulatory Commission

December 17, 2009

Before Commissioners: Jon Wellinghoff, Chairman; Suedeen G. Kelly, Marc Spitzer, and Philip D. Moeller.


1. The Commission issues this Policy Statement to provide guidance concerning the obligations and procedures for disclosing exculpatory materials during investigations under Section 1b and administrative enforcement actions under Part 385 of the Commission’s regulations.1

1. Introduction

2. In Brady v. Maryland, 373 U.S. 83, 88 (1963) (referred to along with its progeny as Brady), the Supreme Court held that the Due Process Clause of the Fifth Amendment requires disclosure of exculpatory evidence “material to guilt or punishment” known to the government but unknown to the defendant in criminal cases. The longstanding practice of staff in the Commission’s Office of Enforcement (Enforcement staff) has been to provide to the subjects of its investigations such evidence in its investigations and administrative enforcement actions. While the Commission does not believe that the Constitution requires it to institute a policy requiring disclosure of exculpatory evidence in its civil administrative proceedings, promulgating such a policy eliminates uncertainty regarding the Commission’s position on this issue, serves the Commission’s goal of providing fairness to regulated entities appearing before it, and sets forth a procedural framework within which exculpatory disclosures are made. The policy we announce today will provide guidance to the administrative law judges, Enforcement staff, and the regulated community. The Commission also believes that this policy will allow efficient resolution of issues regarding disclosure of exculpatory material and avoid unnecessary consumption of regulated entities’ and Enforcement staff’s resources in future proceedings.

II. Legal Analysis

3. As noted, the Supreme Court in Brady v. Maryland, 373 U.S. 83, 88 (1963), held that the Due Process Clause required the government to provide criminal defendants with exculpatory or potentially exculpatory evidence that is “material to guilt or punishment.” “The rationale underlying Brady is not to supply a defendant with all the evidence in the Government’s possession which might conceivably assist in the preparation of his defense, but to assure that the defendant will not be denied access to exculpatory evidence known only to the Government.”2 Brady is a rule of disclosure, not of discovery.3 Therefore, Brady obligations apply even when a defendant does not request the evidence.4 The obligations also apply regardless of the good faith of the prosecutor.5 However, no duty exists under Brady to provide evidence already in the defendant’s possession or which can be obtained with reasonable diligence.6

4. In Giglio v. United States, 405 U.S. 150, 154-55 (1972), the Supreme Court went one step further requiring disclosure in criminal proceedings “[w]hen the ‘reliability of a particular witness may well be determinative of guilt or innocence, ’” and the prosecution has evidence that impeaches that witness’ testimony. “Such [impeachment] evidence is ‘evidence favorable to an accused’ so that if disclosed and used effectively, it may make the difference between conviction and acquittal.”7 For example, courts have held that impeachment evidence for a key testifying witness includes prior statements by a witness that are materially inconsistent with the witness’s trial testimony;8 a conviction of perjury;9 prosecutorial intimidation of a witness;10 and plea bargains and informal statements by the prosecution that a witness would not be prosecuted in exchange for his testimony.11

5. Because Brady disclosure in criminal proceedings is required under the Due Process Clause, legal privileges against discovery like attorney-client, work-product, or deliberative process do not allow the government in criminal proceedings to avoid disclosure on these grounds.12 However, courts have recognized that Brady does not apply to attorney strategies, legal theories, and evaluations of evidence...

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