Brady the Duty of a Prosecutor to Disclose Mitigating or Exculpatory Evidence

Kyles versus Whitley! In 1995 the court, Supreme Court re-recognized this notion and again said, “it’s any favorable piece of evidence” and Ii like Whitley because there it was all these little pieces, none of which were of any significance by itself. In Whitley, it was that 1 out of 4 eye-witnesses; had a different description for the defender. It was little bits of pieces like that. So Whitley’s another great case to get the point across; if it’s just favorable in some way to the defense, then you have to hand it over.

Knowledge! we always, i don’t know how many times you’ve heard it, every time i suggest, I need Brady evidence, i get these dirty looks and i have the prosecutor screaming and shouting and carrying on, accusing me of prosecute towards miss conduct and I’m hiding evidence, you know what folks; prosecutors and judges tell them, do they even have to know about it, for it to be Brady. If someone on their team knows. You know, it really doesn’t require a misdeed or an intentional withholding of evidence by the prosecution for it to be Brady! You know, just get rid of those notions. Let me illustrate the point! This is testimony in a case, and I’m not sure how to do this from here. Can you all click on the first audio on the upper right corner and then on the video? It’s testimony of a prosecutor who didn’t…

It is the same thing here when you look at it, you look at the fact that they asked and asked and asked for the stuff that we said there was none. And we did not turn it over and now they tested it, that mean there were some that we didn’t give to them. So what she was saying is; one of her colleagues knew about the evidence, she didn’t. And she didn’t know they had it! And the defense asked and asked and asked for it and it turns out we had it and we didn’t turn it over so I’m guilty of 30 violation. And she got it right! She didn’t know, she didn’t turn it over. They had it, it was favorable; it’s a Brady violation. You know this is a really stand up prosecutor who said; Yeah I get it. It’s not about attacking prosecutors it’s about providing what is constitutionally required.

If a prosecutor still does not remember, it is still a Brady violation,” I don’t specifically recall providing discovery” Same thing that can an innocent testify to his deposition. Well, i don’t know! I don’t really remember. I mean this is favorable, certainly i would’ve turned it over but i don’t specifically recall it. And then you put on the testimony of every one of the defense lawyers and you show it in the trial record, they never used it. And clearly used everything in their favor that they could have! It doesn’t require the prosecutor to recall, or even know if they have it, if the prosecution team has it, and it wasn’t turned over, it’s a Brady violation. This might i hope, encourage prosecutors to listen to you when you say; please ask your agents, please ask people on the prosecution team, please ask the medical examiner whoever else is working on your case with you, the doctors who are testifying, who have become a part of your prosecution team. Ask them as well and search because you know, do you want to try this case twice? Why don’t you give it to me now?

Agurs The 1976 came out after Brady and said, and this is a shock we always hear,” you’ll get it, at trial” because of course there’s language to that effect. But back in 1976, the Supreme Court said, “In advance of trial and perhaps in the course of trial as well, the prosecutor must decide what to give to the defense lawyer. “So here’s a very early recognition that Brady disclosure should be made pretrial”
There’s plenty of times that you can’t use it, if you get at a trial. We all know how reluctant judges are to give any continuances of real importance, during the middle of trial. When you learn Brady evidence you can’t go investigate, find the expert witness, get the related impeachment evidence and so forth that you need to make full use of it at the trial.

So use Agurs and our new Morton legislation when it comes into effect, to encourage prosecutors to make early disclosures of this information. And then Agurs, also added the notion that it used to be; had to request Brady; if you didn’t request it and you’re outta luck Agurs made it clear that this needs to be disclosed without a specific request. Because it’s about the prosecutors duty as the minister of justice. It’s about fairness of the proceedings. And the prosecutors are in the best position to possess all this information and knows the holes in their case, it goes back to that visceral you know,” I don’t want to give it to you, I hate to tell you” test. They need to in fairness provide it even if you don’t know the right questions to ask! And in Morton they didn’t know the right questions to ask at first.

Francisco Hernandez

Author Francisco Hernandez

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