The Prosecutor's Brady Obligation to disclose exculpatory evidence
Bob Hurt
Okay, suppose an overeager cop arrests you for a crime you did not commit, investigators find the evidence, and then the prosecutor hides it from you and your attorney. NOW what? What if you discover it years later while languishing in prison?
Attorney Gary presents some considerations about related rule changes from a legal blog. Law philosopher Wolf explains the constitutional seriousness of the problem.
Your job: Decide what to do about it BEFORE you ever get falsely accused and arrested.
Bob Hurt.
Brady v Maryland: Do you Understand your Obligations?
By Steve Rothlein
Legal & Liability Risk Management Institute
Definitions:
- Duty to Disclose: The landmark decision of Brady v Maryland (1963) places an affirmative constitutional duty on a prosecutor to disclose exculpatory evidence to a defendant. This duty has been extended to police agencies through case law, requiring law enforcement agencies to notify the prosecutor of any potential exculpatory information.
- Exculpatory Evidence/Brady Material: Evidence in the government’s possession that is favorable to the accused and that is material to either guilt or punishment, including evidence that may impact the credibility of a witness.
The landmark decision of Brady v Maryland andi its progeny is perhaps one of the most significant Supreme Court decisions to ever impact the criminal justice system. Unfortunately, many law enforcement agencies nationwide have failed to train their officers on their obligations to disclose exculpatory material as a result of the Brady decision.
In 1963, the Supreme Court ruled in the Brady case that the government has a duty to disclose material evidence to the defense, which could tend to change the outcome of a trial. This exculpatory evidence, often referred to as “Brady Material,” could tend to prove that the accused party is innocent or cast doubt of their guilt.
What does this mean in realistic terms for law enforcement officers? The following are just a few examples of the types of situations in which investigators could find themselves aware of exculpatory evidence, which should be documented and provided to the prosecuting authorities. It is the prosecutor, under Brady, who must decide if the information is exculpatory and whether it must be disclosed to the defense. The law enforcement officer’s obligation is to inform the prosecutor of the information.
Consider the following hypothetical examples:
- Detective Jones is handling a rape investigation and develops information of a potential suspect who was seen leaving the scene in a white pick-up truck. The investigator displays a photo line-up to the victim and she identifies the suspect, who does own a white pick-up. No forensic evidence connecting the suspect to the crime is initially discovered. During the course of the investigation, a witness is located during the area canvass who claims to have seen a beige pick-up truck in the area driven by a dark skinned male in his 30’s. The identified suspect is a light skinned male in his 20’s. The investigator does not document this information in his report because it contradicts the probable cause he has developed in his case.
- Detective Smith is handling a murder investigation. He develops a suspect who is of limited intelligence and brings him to the station for questioning. After questioning him over a period of days, he informs the suspect that if he confesses, he will be allowed to go home. The suspect confesses and is taken into custody and charged with murder. Detective Smith fails to document his promise of allowing the suspect to go home in exchange for confessing, and does not inform the prosecutor.
- Detective White is handling a robbery investigation in which a victim is shot. He discovers a footprint near the scene, which he has photographed and lifted. He subsequently arrests a suspect who is wearing a size 9 shoe. The foot print is a size 11 sneaker and Detective White discards the footprint evidence believing it is unrelated to the crime. He fails to document this information.
- Detective Evans displays photo line-ups to three witnesses. Two of the witnesses identify a suspect; however, the third witness fails to identify anybody. Detective Evans documents the two positive identifications but does not document that the third witness failed to identify the suspect and Detective Evans never informs the prosecutor.
- Detective Williams is the lead detective in a homicide case and took a confession from the defendant. His supervisor is aware that five years earlier, Williams received a suspension falsifying a police report. This information is never reported to the prosecutor.
In all of these cases, the suspects are convicted, incarcerated, and later declared innocent as a result of DNA evidence, which was not available at the time of the original investigations. Following their release, all of the individuals file multi-million dollar lawsuits against the investigators, their supervisors, and their agencies for Brady violations. Their attorneys argue successfully that had their defense attorneys been provided with the exculpatory evidence in these cases, the defendant’s might not have been wrongfully convicted.
The first question that will be asked during the litigation will be did the investigators receive any training about their duty to disclose exculpatory evidence and, secondly, did the agency have a policy in their departmental regulations requiring officers to disclose exculpatory evidence. If the answer is no training was provided and no policy existed, the agencies will likely be liable for substantial damages for failing in their duties under Brady v Maryland to disclose exculpatory evidence.
In 1972, the Giglio v United Statesii case expanded the Brady decision to require prosecutors to provide information to the defense counsel which could tend to impeach a witness. For example, if a witness is motivated to testify in exchange for a lighter sentence, that information must be disclosed. This includes information about the credibility and veracity of the testimony of police officers. If an officer has a past record of falsifying reports or other conduct which could impact their truthfulness, the Giglio Case requires that the prosecutor provide the defense with that information.
Note: It is critical that when an agency sustains charges against an officer for falsification that they ensure they have the required evidence to support that charge. Having a sustained allegation for falsification can effectively destroy an officer’s career since he/she will forever be an impeachable witness.
The best defense against the civil litigation filed as a result of Brady v Maryland is to ensure the following has been accomplished:
• All officers have been properly trained on their obligations and duty to disclose exculpatory material.
• The agency has a policy which requires that officers document exculpatory information and provide it to the prosecutors.
• The agency has informed investigators via training and policy concerning their obligations as a result of the Giglio Case, including informing prosecutors of information which could impeach the testimony of their officers. Law enforcement agencies should reach an agreement with their prosecutors on the best mechanism for handling the Giglio issues involving police officers.
i Brady v. Maryland, 373 U.S. 83 (1963).
ii Giglio v. United States, 450 U.S. 150 (1972).
This article was published as part of the PATC E-Newsletter – a free resource of the Public Agency Training Council. For more information please visit us on the web at www.patc.com and follow the links to “E-Newsletter.”
From: gary
Subject: Brady Obligations
Date: Fri, 22 Apr 2011 15:02:38 -0700
Below is a 4/22/11 The BLT: Blog of the LegalTimes that discusses a very important topic: a prosecutor’s Brady obligations.
What is amazing is that there is any need for discussion if they truly serve the People. GLZ. But like the Doctrine of Absolute Judicial Immunity and the Exclusionary Rule – maybe it is the wrong discussion from the start. GLZ.
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APRIL 22, 2011
Federal Judiciary Divided Over Changing Criminal Discovery Rule
Federal judges are divided over the necessity to change the rules of criminal procedure to put a greater emphasis and burden on prosecutors to turn over favorable information to defense lawyers, a Federal Judicial Center report concluded.
The center, the research arm of the judiciary, surveyed all U.S. Attorney’s Offices, thousands of defense lawyers and federal and magistrate judges to assess the merits of a proposed amendment to Rule 16, which governs discovery in criminal cases. A copy of the survey results is here. (Click here for an earlier report on the survey’s findings.)
The FJC said 43% of about 1,500 judges completed the online survey, which was conducted last year. Eighty-five of the 93 U.S. Attorney’s Offices participated in the review. More than 5,000 private criminal defense lawyers and federal public defenders provided their assessment.
The judiciary was evenly split on the need for amending the rule. But judges in districts with local rules or standing orders that require broader disclosure of information than what’s required in Rule 16 indicated greater support for a rule change than other judges in the judiciary. The Justice Department opposed a rule change. More than 90% of the defense lawyers who responded favored a change.
The two most frequent disclosure violations among prosecutors, judges reported, were the failure to provide favorable information on time and the scope of the disclosure to the defense.
Judges also reported they rarely hold an attorney in contempt and infrequently report a prosecutor’s conduct to the DOJ’s Office of Professional Responsibility, bar counsel or other disciplinary body.
The survey also said that more than 60% of judges said they did not have a case in the past five years in which a prosecutor or defense lawyer failed to comply with disclosure obligations.
In 2009, Judge Emmet Sullivan of U.S. District Court for the District of Columbia wrote to the Judicial Conference criminal rules committee asking the group of lawyers, judges and law professors to reassess, for a second time in recent years, an amendment to the rule.
Sullivan was the trial judge who oversaw the Justice Department’s botched prosecution of former Alaska Senator Ted Stevens. Sullivan called the Stevens case one of the most shocking examples of prosecutorial misconduct he’d ever seen during his time on the bench.
DOJ officials tout what they call a "comprehensive" approach to discovery reform in arguing against a rule change.
The department early last year issued new discovery guidance to all federal prosecutors. The memos, issued by then-Deputy Attorney General David Ogden, encouraged “broad and early” discovery. Also, the department announced its intent to provide more training for prosecutors.
Posted by Mike Scarcella on April 22, 2011 at 04:17 PM in Balancing Act,Crime and Punishment, Current Affairs, D.C. Courts and Government,Justice Department , Lawyers Who Do Bad Things, Legal Business,Politics and Government, Supreme Court , Travel | Permalink
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Wolf comments:
Yes, Gary, the issue here is absolute immunity ... but not prosecutorial absolute immunity per se, but government immunity or sovereign immunity through prosecutorial immunity. The two are distingushable in a very important respect. To see the difference, refer to the words of the Petition Clause as it is written ... "Congress shall make no law abridging the right of the people to petition the GOVERNMENT for redress of grievances." Absolute prosecutorial immunity is completely consistent with the First Amendment if but only if the government unit, in this case, the District Attorney's office and the County or State political unit stand in the shoes of the prosecutor and the police for their Constitutional violations. Thus, in effect, if a person is wrongfully imprisoned regardless of who committed the wrong, he is entitled to reasonable compensation from the government unit and neither the prosecutor or police are directly exposed to liability. In that kind of case, the payment of damages and liability for constitutional violations falls on the government unit. Damages for constitutional violations are spread across the tax base and ultimately become political issues determining the supervisorial abilities of politicians and their respective abilities to lead intelligently and competently. The become politically responsible for the incompetence, malice, corruption and so on of everyone in the government unit that they are responsible for. In turn, they, the elected officials create effective avenues of accountability of each government agent who works for them ... that is how clean and effective government is supposed to evolve.
This kind of house cleaning in government requires an understanding of the constitutional obligation of government. Generally, we accept that government's obligation not to wrongfully deprive a person of liberty is a due process obligation...Fifth Amendment, "not be deprived of life, liberty or property, without the due process of law." Thus there is no obligation not to imprison the innocent, only an obligation to assure that his imprisonment occurs by reason of the due process of law ... and discovery rights are due process rights.
But truth is that while our liberty is protected by the due process rights, those are not the only protections. There are "substantive due process rights" which are generally the substantive rights incorporated through the Fourteenth Amendment due process clause. But there are still more protections in the nature of substantive due process, but seldom addressed and much less understood, but much more meaningful. It is at this point that I so throughly enjoy Justice Thomas' dealing with the Second Amendment in McDonald v the Corrupt City, in getting to unalienable privileges and immunities that underlie enumerated and otherwise recognized rights ... like say, "the right to honest government" without respect to any particular wrong by government. That right underlies the right to honest discovery in criminal cases that you bring up.
What are these rights more generally? Basically, it is the right to just compensation as determined by a jury any time government has wronged a person under the Constitution and the right to have a jury determine if indeed government has wronged the person. Substantively, it is very much like strict liability in tort for government wrongs. So in that sense, the question of whether it is a wrong by government to put an innocent person in jail is the question that goes to the jury under the Constitution as it is written, and it is up to the parties to put together all of the reasons that such an event violates the Constitution and why it does not, to the Jury.
That, at least, is the end game of my constitutional understanding. It is as much based on the concept of "wrong" as it is on the concept of taxation. Wrongfully injurying people is an inevitable consequent of government and thus a cost of governing. Since it is an inevitable cost of governing, the government has two obligations: One is just compensation for injuries it justly causes and two is distribute the cost of government across the tax base equally, not to burden the injured person with the whole cost of the injury. When seen in that light, the failue to pay just damages for wrongful injury becomes a violation of the due process of law in taxing the injured person disproportionately to the rest of the tax base in violation of taxing law.
Wolf
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Bob Hurt
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