Bill of Rights. (From the public domain.)

The newest addition to my blogroll — under the Beyond Blogs category — is Brady v. Maryland, 373 U.S. 83 (1963). I urge all judges, prosecutors, criminal defense lawyers, and police to read Brady at least once a year, particularly its key holding: "We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87.

How often do prosecutors withhold evidence that must be disclosed under Brady, whether intentionally or not, because they are overworked or underresourced, because they do not understand Brady, because they detest Brady, because they have too narrow an interpretation of Brady, because the police are interfering in providing Brady evidence, or because they do not understand that Brady extends to sentencing, and not just to the pre-sentencing phases of a prosecution? How many judges refuse to review evidence in chambers to independently determine whether it is Brady evidence, and instead let the prosecutors — as officers of the court, but certainly not unbiased ones — decide what is Brady evidence, which is at best akin to the bank employee who asked me during my pre-law school bank auditing career: "Who’s auditing the auditors?" On the other hand, prosecutors are not even auditors.

Certainly, many judges might be concerned that reviewing material for Brady evidence will open floodgates that will make their chambers burst at the seams with in camera evidence to review. That might be, if we added civil discovery disputes to the mix. However, criminal cases ordinarily implicate much more serious liberty interests than civil cases, and deserve more in chambers review for Brady evidence. If the courts require limiting the time spent handling criminal cases in the court system, it should involve a limit on the number of cases that are prosecuted in the first place.

Particularly for jurisdictions that apply the Model Rules of Professional Conduct, of particular note is the American Bar Association’s recent nine-page formal opinion 09-454 on Rule 3.8(d), which covers prosecutors’ obligations to furnish exculpatory evidence. At present, the opinion is only available to ABA members and paying parties; I emailed the ABA today asking to make it available free, lest prosecutors, judges and criminal defense lawyers not have it at their fingertips. Here is the introductory overview of the opinion: 

"Rule 3.8(d) of the Model Rules of Professional Conduct requires a prosecutor 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, [to] disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor.” This ethical duty is separate from disclosure obligations imposed under the Constitution, statutes, procedural rules, court rules, or court orders. Rule 3.8(d) requires a prosecutor who knows of evidence and information favorable to the defense to disclose it as soon as reasonably practicable so that the defense can make meaningful use of it in making such decisions as whether to plead guilty and how to conduct its investigation. Prosecutors are not further obligated to conduct searches or investigations for favorable evidence and information of which they are unaware. In connection with sentencing proceedings, prosecutors must disclose known evidence and information that might lead to a more lenient sentence unless the evidence or information is privileged. Supervisory personnel in a prosecutor’s office must take reasonable steps under Rule 5.1 to ensure that all lawyers in the office comply with their disclosure obligation."

Of particular note in the foregoing ABA opinion is the following: "In particular, Rule 3.8(d) is more demanding than the constitutional case law, in that it requires the disclosure of evidence or information favorable to the defense without regard to the anticipated impact of the evidence or information on a trial’s outcome. The rule thereby requires prosecutors to steer clear of the constitutional line, erring on the side of caution." (Emphasis added.)

Finally, here is a pre-Brady Supreme Court opinion requiring disclosure of confidential informant information, at least where the informant is involved in the crime being prosecuted and is the sole participant in the crime with the defendant. The case is Rovario v. U.S., 353 U.S 53 (1957). Read together, Brady and Rovario support the prosecution’s obligation to provide the full name and address of prosecution witnesses when requested, to update the defense on their change of address, and to update the defense when the prosecution learns of possible or actual witness address changes or inability to reach the witnesses any longer. 

A recent unpublished Fourth Circuit opinion has this to say about Rovario and Brady in confirming a conviction where the trial judge denied a continuance despite the prosecution’s late disclosure of confidential informant information:

"Assuming that a disclosure error occurred, we must assess whether it affected Martinez’s substantial rights and was prejudicial to his right to a fair trial. See Fed. Rule Cri. Pro. 52(a) (providing that ‘[a]ny error . . . that does not affect substantial rights must be disregarded’); see also McLawhorn [v. North Carolina, 484 F.2d 1, 7 (4th Cir. 1973)] (recognizing error and assessing whether failure to disclose informant’s identity was prejudicial). Martinez contends, of course, that not having received timely disclosure with respect to the informant, he was unable to sufficiently prepare his defense and effectively cross-examine Barajas. To support this proposition, Martinez points to several facts that were not disclosed in a timely manner: (1) that Barajas had assisted the CMPD with three drug deals in addition to the drug transaction with Martinez; (2) that Barajas had received approximately $ 5000 for assisting the Charlotte police, including $ 3000 for his transaction with Martinez; (3) that the police officers had advised Barajas that they would assist him in becoming a legal resident of this country in return for his help; and (4) that the CMPD had taught Barajas about the drug trade so that he could work as a paid informant. As Martinez argues, most of this evidence should have been timely disclosed to the defense under the principles of Roviaro, McLawhorn, and Brady." U.S. v. Martinez, 286 Fed. Appx. 809, 2008 U.S. App. LEXIS 13328 (4th Cir. 2008) (unpub’d), cert. denied, 129 S. Ct. 430 (2008).

Consequently, it is better for prosecutors to over-disclose than to under-disclose exculpatory evidence. Jon Katz.  

ADDENDUM:  Thanks to fellow listserv members for recently posting on the above-discussed ABA opinion and Rovario decision.