Criminal Justice Insider

Prosecutors wield an enormous amount power within the criminal justice system. It is within their sole discretion whether to bring charges against a defendant and what charges to bring. They are the only legal professionals allowed to present to a Grand Jury deliberating as to whether to indict a defendant. Because they harness the enormous power of the government, prosecutors have special ethical obligations.

Paramount amongst these is the requirement that a prosecutor must turn over any potentially exculpatory evidence, evidence that may exonerate a defendant of guilt in a criminal trial, he/she becomes aware of to the defense. This important protection was enshrined in the Supreme Court’s decision in Brady v. Maryland, 373 U.S. 83 (1963). In subsequent decisions, the Supreme Court has held that any evidence that can be used to impeach or otherwise undermine the credibility of the government’s witnesses is exculpatory in nature and must also be disclosed. See Giglio v. United States, 405 U.S. 150 (1972); United States v. Bagley, 473 U.S. 667 (1985). Further, the Supreme Court held in Weatherford v. Bursey, 429 U.S. 545, 559 (1997) that the disclosure must be sufficient time before trial for a defendant to be able to make effective use of the evidence. This timeframe has generally been interpreted to mean that disclosure is required shortly after the prosecution becomes aware of the exculpatory evidence.

The biggest flaw in this system is that the prosecutor, the very adversary of a defendant, has both the sole knowledge and possession of such exculpatory material. A prosecutor must review his/her file for such evidence and take a broad enough view of it to realize its exculpatory value. These perpetual affirmative obligations have predictably resulted in untimely disclosures too close to trial or failure by prosecutors to make the disclosure at all.

For this reason, on October 21, 2020, the federal government passed the Due Process Protection Act. This act amended Rule 5 of the Federal Rules of Criminal Procedure such that “…the judge shall issue an oral and written order to prosecution and defense counsel that confirms the disclosure obligation of the prosecutor under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, and the possible consequences of violating such order under applicable law.” This new rule serves as a clarion call to prosecutors to always be mindful of their Brady obligations.

Despite this enhanced protection, there are still issues with the untimely disclosure of exculpatory material. For example, as recently as February 17, 2021, Judge Alison Nathan of the District Court for the Southern District of New York took the U.S. Attorney’s Office to task in United States v. Ali Sadr Hashemi Nejad, 18-CR-224(AJN). In Nejad, the prosecutors failed to disclose a critical exculpatory document until days before trial. Once they realized their mistake, prosecutors buried the document in a list of previously transmitted documents and misled the Court into believing that the document had been previously disclosed. Judge Nathan called the prosecutor’s conduct, “grave derelictions of prosecutorial responsibility” and referred the matter to the Department of Justice’s Office of Professional Responsibility. This matter serves a clear rebuke to prosecutors who shirk their disclosure obligations as well as reminder of the inherent risks when one party is both the proverbial lock and key for exculpatory material.

Notably, the relief for a prosecutor’s failure to properly disclose exculpatory material is not absolute. A defendant who is the victim of such prosecutorial misconduct is only entitled to a new trial where the evidence withheld is material to guilt or innocence and there is a reasonable probability that the timely disclosure would have led to a different result. See Kyles v. Whitley, 514 U.S. 419 (1995). The defendant bears the initial weighty burden of demonstrating the failure to disclose, the materiality of the evidence, and the likely impact such evidence would have had on the outcome.

Lawmakers continue to struggle with leveling the playing field with regard to the disclosure of exculpatory evidence. Some state prosecutors have started to enact “open file” policies where prosecutors turn over their entire file to defense counsel. Until this practice becomes more widespread, or further protections are enacted, defense counsel must understand the mechanics of Brady disclosure and hold prosecutors accountable in adhering to the requirements.

For more information on the topic discussed, contact:

• Adam M. Felsenstein  |  felsenstein@thsh.com  |  212-508-7533