Brady v. Maryland & The Prosecutorial Duty to Disclose Evidence Robert W. Hood Michelle Waymire Director, Community Prosecution & Supervisor, Community Prosecution Division Violent Crime Division Marion County Prosecutor’s Office Association of Prosecuting Attorneys APA “Final Friday’s” Webinar Series May 31, 2013
Brady Caselaw Timeline Connick v. U.S. v. Kyles v. U.S. v. Brady v. Agurs Whitley Ruiz Thompson Maryland 1976 1995 2002 2011 1963 1999 1972 1985 2009 Strickler Giglio v. U.S. v. Cone v. v.Greene Bagley Bell U.S.
Why Is Brady is Important? • Prosecutorial Duty to do Justice • Violation Can Lead to Suppression of Evidence • Violation Can Lead to Protracted Appellate Litigation, Conviction Reversal and/or an Order for a New Trial • Violation Can Lead to 42 U.S.C. §1983 Actions • Violation Can Lead to a Disciplinary Action for an Ethical Violation
Brady v. Maryland 373 U.S. 83 (1963) Under the Fifth and Fourteenth amendments, a prosecutor has a duty to disclose favorable evidence to defendants upon request, if the evidence is “material” to either guilt or punishment.
Giglio v. U.S 405 U.S. 150 (1972) Withheld promise of immunity to co-conspirator upon whose testimony the Government’s case depended required reversal of conviction because “evidence of any understanding or agreement as to a future prosecution would be relevant to [co-conspirator’s] credibility and the jury was entitled to know of it.”
U.S. v. Agurs 427 U.S. 97 (1976) Prosecutor has a due process duty to disclose evidence about a victim’s criminal record, except (1) when the victim’s record was not requested by defense counsel and no inference of perjury by witness created; (2) if the trial court remains convinced of defendant’s guilt after the withheld evidence is reviewed in light of entire trial record; and (3) the trial judge’s firsthand appraisal of the record is thorough and reasonable.
United States v. Bagley 473 U.S. 667 (1985) The court focused on the “materiality” standard, articulating that evidence is “material” within the meaning of Brady when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.
Kyles v. Whitley 514 U.S. 419 (U.S. 1995) New trial granted because of the prosecution’s failure to disclose material evidence favorable to the accused concerning his possible innocence because the net effect raised a reasonable probability that the evidence’s disclosure to competent counsel would have produced a different result. Even if the prosecutor was not personally aware of the evidence, the State is not relieved of its duty to disclose because “the State” includes, in addition to the prosecutor, other lawyers and employees in his office and members of law enforcement.
Strickler v. Greene 527 U.S. 263 (U.S. 1999) Held that a Brady violation occurs when: (1) evidence is favorable to exculpation or impeachment; (2) the evidence is either willfully or inadvertently withheld by the prosecution; and (3) the withholding of the evidence is prejudicial to the defendant.
U.S. v. RUIZ 536 U.S. 622 (2002) The Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant.
Cone v. Bell 556 US 449(U.S. 2009) Observed, without specifically holding, that a prosecutor’s pre-trial obligations to disclose favorable or impeaching evidence, “may arise more broadly under a prosecutor’s ethical or statutory obligations” than required by the Brady/Bagley post-conviction “materiality” standard of review. The court distinguished the post-conviction setting to the prosecutor’s pre-trial broader ethical obligations to disclose, which requires a “prudent prosecutor [to] err on the side of transparency, resolving doubtful questions in favor of disclosure.”
Connick v. Thompson (2011) A district attorney's office cannot be held liable under 42 US 1983 for a failure to train its prosecutors based on a single Brady violation.
Brady in the Federal Circuit Courts of Appeal & the State Courts Selected Cases & Trends
Ethics Rules Implicated in Brady Violations
ABA Model Rule of Professional Responsibility 3.8 Special Responsibilities of a Prosecutor • (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
Virginia Rules of Professional Conduct Rule 3.8: Additional Responsibilities of a Prosecutor (d) A lawyer engaged in a prosecutorial function shall: make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of evidence which the prosecutor knows tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment, except when disclosure is precluded or modified by order of a court
California Proposed Rules Of Professional Conduct Rule 3.8 Special Responsibilities of a Prosecutor (d) comply with all constitutional obligations, as interpreted by relevant case law, to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor relieved of this responsibility by a protective order of the tribunal. Compare Current Rule CRPC 5-220: A member shall not suppress any evidence that the member or member’s client has a duty to reveal or to produce.
Other Ethics Rules Implicated By Brady Violations Rule 3.3 Candor Toward The Tribunal (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
Rule 3.4 Fairness To Opposing Party And Counsel A lawyer shall not: (a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; and (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.
Rule 3.8 (g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall: (1) promptly disclose that evidence to an appropriate court or authority, and (2) if the conviction was obtained in the prosecutor's jurisdiction, (i) promptly disclose that evidence to the defendant unless a court authorizes delay, and (ii) undertake further investigation , or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
Rule 3.8 (h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor's jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.
Selected Disciplinary Actions • NORTH DAKOTA: Disciplinary Board v. Feland, 2012 ND 174, 820 N.W.2d 672 (2012) • COLORADO: In the Matter of Attorney F, Supreme Court Case No. 11SA343 Appeal from the Hearing Board, 10PDJ131 (2012) • VIRGINIA: Virginia Committee on Legal Ethics, Legal Ethics Op. 1862 (July 23, 2012) • LOUISIANA: In re Jordan, 913 So.2d 775 (La. 2005) • KANSAS: In re Jordan, 278 Kan. 254,91 P.3d 1168 (2004) • VIRGINIA: Read v. Virginia State Bar, 357 S.E.2d 544 (1987)
Brady Lists & Brady Protocols • Brady lists - Brady listing occurs when a prosecutor places a law enforcement officer’s name on a list disclosing what the prosecutor deems is material and exculpating material concerning the officer’s prior conduct. • Brady Protocols are establish procedures for disseminating Brady material; for notifying officers involved in any Brady disclosure; and for responding to third-party requests for Brady material by the media, defense attorneys, private investigators, and FOIA requests.
Q & A
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