“That was nice of the prosecutor,” replied a colleague — a criminal defense lawyer whom I respect very much — after I told him that during his direct examination of a police officer, a Virginia prosecutor strolled over to the defense table to show me that the officer’s testimony significantly exaggerated what was in the police officer’s report.

“Nice?,”  I replied to my colleague. “What nice? The prosecutor was obligated by Brady [this Brady, not the show that defined the syrupy category of 1970’s TV programming] to reveal that.” My colleague’s reply apparently arose from skepticism whether all prosecutors would have revealed this exculpatory evidence to me, whether out of intention, misunderstanding of the Brady/exculpatory evidence rule, overlooking the matter, or not being aware of the matter in the first place. Here, the police officer’s report claimed my DWI client had a moderate odor of alcohol coming from his mouth, but the same police officer testified to a strong odor of alcohol, which I then refuted in cross examination by getting the officer’s admission that the odor was moderate in his report.

Why did I have to rely on the prosecutor to reveal this moderate versus strong odor of alcohol discrepancy? Because Virginia has no Jencks rule requiring the prosecution to provide the defense — before the defense begins cross-examination — with prosecution witnesses’ oral and written statements.

Some Virginia prosecutors’ offices wisely turn over prosecution witness statements to the defense, sometimes unredacted, sometimes not. I say wise, because at minimum, doing so helps prosecutors reduce violating Brady and other discovery obligations, even though simply turning over police reports and witness statements is not sufficient to satisfy Brady, because prosecutors must exercise due diligence to know whether Brady evidence exists outside the four corners of witness statements. Most prosecutors are simply too busy to know prosecution witness statements so intricately and with enough photographic memory (and how many people have photographic memories?) to rely on themselves to satisfy Brady without turning over prosecution witness statements to the defense before the defense cross examines those witnesses.

Some prosecutors are so busy that not all seem even always to read the police reports — which run from brief reports to multiple reports running voluminous pages — at least not before proceeding to a misdemeanor trial. A prosecutor cannot satisfy Brady by both not reviewing police reports in a case and not turning over those reports to the defense before cross examination.

Strange events often come in pairs. Lo and behold, only a week after the above-discussed prosecutor (a likable prosecutor actually) “nicely” pointed out the police officer’s testimonial deviation from his report, I encountered at trial in a different Virginia county a similar deviation, which I learned of in quite a different way. The police officer in this subsequent trial, once again for allegedly driving while intoxicated — kept having to refer to his thin three-page set of reports to “refresh” his recollection during the prosecutor’s direct examination, and even tried to testify directly from his report even after the judge admonished the officer not to do so, after I alerted the judge to the direct reading.

A bonus when police need their reports and notes to refresh their recollection is that I then get an opportunity to read the reviewed portions of the same reports and notes that were not turned over to me as Jencks evidence in Virginia, which has no Jencks rule. Here, I saw that the officer had marked “moderate” odor of alcohol in his DWI investigation checklist.

In cross examination, I asked the officer: “And Mr. Stanley had a moderate odor of alcohol on his breath?” Answer: “No. Strong.” My next question: “Doesn’t your report say he had a moderate odor of alcohol?” Answer: “My narrative says strong.” My next question: “Doesn’t your report include a checklist question asking the strength of the alcohol odor?”
Answer: “Yes.” JK: “And you had a choice to mark strong, moderate or slight odor of alcohol?” A: “Yes.” JK: “And you marked moderate.” A: “Yes.” (In cross examination, once you catch the fish, don’t play with the fish.)

Son of a bomb!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! Let me get this straight. Had the cop never needed to refer to his report to testify, I would never have gotten a chance to read it. Had I not seen the report, would the prosecutor or cop ever have informed me that the cop had contradicted himself in his own writings about whether my client had a strong or moderate odor of alcohol on his breath? Heck, the cop even fought me during cross examination about whether my client’s alcohol odor was moderate or strong. The cop knew his case so poorly going into trial that he had to keep referring to his report.

With the above-addressed scenarios from two separate trials, how on earth can a prosecutor feel safe satisfying his or her Brady obligations and other governing discovery disclosure obligations without providing the defense with the reports and statements of prosecution witnesses? Prosecutors: If you want to sleep more soundly at night, turn over Jencks material to the defense.