When the fox is allowed to guard the henhouse

Jun 09, 2010 When the fox is allowed to guard the henhouse


Bill of Rights (From public domain.)

In the jurisdictions where I practice law, prosecutors are not required to share their entire case file with me. Therefore, I must rely on them meticulously to abide by the criminal discovery disclosure rules. However, being human, even the most well-meaning prosecutor sometimes will mistakenly not disclose discovery that s/he is required to disclose. Adding to the risk of non-disclosure mistakes is that even the most scrupulous prosecutor can be hoodwinked by an unscrupulous police officer who hides such critical evidence as exculpatory evidence. 

Thanks to a listserv member who alerted me to a recent motion by a D.C. federal prosecutor to dismiss a federal drug prosecution, due to the possible inadvertent non-disclosure of impeaching evidence concerning statements allegedly made by the defendant to the police. See the article here

The prosecution did not realize this problem until reviewing its files in relation to the defendant’s appeal. For each prosecutor who finds and admits such errors, how many more defendants suffer such serious violations of their rights, without those violations being admitted as violations or possible violations?

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