Evidence Favorable to the Accused

By Jason K Jensen, Private Investigator

Part I – U.S. Supreme Court Case Briefs

A. Brady Evidence – Negating Guilt of Accused or Affecting Level of Punishment

Title: Brady v. Maryland, 373 U.S. 83 (1963)

State of facts: In separate trials Brady and a co-defendant were each convicted of first degree murder and sentenced to death. Unbeknownst to Brady, the prosecution withheld a written statement by the codefendant confessing to be responsible for the killing even though a request to the prosecutor was made by Brady’s attorney. Despite the request, the prosecutor failed to disclose the statement and at the time of the punishment phase, the jury convicted the defendant to death over his argument against the capital punishment because he did not commit the killing. After his sentencing, Brady learned about the confession and post-conviction remedies were sought asking for a new trial. The Maryland Court of Appeals only reversed the sentencing phase, not the guilt phase finding that the failure only affected the punishment phase, not the guilt phase.

Issue: Whether the failure to disclose evidence favorable to the favorable to Brady entitled him to a new trial, where favorable evidence existed and was not disclosed?

Decision: The United States Supreme Court held that the failure of the prosecutor to disclose evidence favorable to Brady deprived him of due process where Brady had requested it. He was entitled to a new sentencing.

Reasoning: Society wins when criminal trials are fair. The administration of justice suffers when the accused is mistreated. "The United States wins its point whenever justice is done its citizens in the courts." When a prosecutor withholds evidence contrary to his demands, if it had been made available, would tend to clear him or reduce the penalty helps shape a trial that bears heavily on the defendant. The prosecutor cannot act in the role of an architect of a proceeding that does not comport with standards of justice.

Dissenting Opinion: Justice Harlan dissenting felt that the due process violation could have extended to the guilt phase as well since it was the jury’s province to decide both the guilt and punishment phases of a First Degree Murder in Maryland.

B. Brady Evidence – Evidence Impeaching Witnesses

Title: Giglio v. United States, 405 U.S. 150 (1972)

Statement of facts: Giglio filed a motion for a new trial upon disclosure that a material witness was promised leniency in exchange for testimony against Giglio. At the hearing, the Assistant Attorney General who presented the case to the grand jury admitted promising the witness immunity for his testimony. However, he did not inform the Assistant Attorney General of that promise who prosecuted Giglio.

Issue: Whether the prosecutor’s failure to disclose a witnesses’s promise of leniency entitled the defendant to a new trial?

Decision: [Expanding Brady] Regardless of the prosecutor’s lack of knowledge or good faith, Giglio was deprived of due process because the prosecutor has the duty to provide the accused all material evidence to the jury was not fulfilled.

Reasoning: The Governmental nearly relied exclusively on the testimony of the witness who received leniency. The Court emphasized was it not for the testimony of that witness, who struck the deal with the prosecutor, there would not have been a conviction or even an indictment. Furthermore, the Court emphasized that the deal was relevant to the credibility of the witness and therefore, favorable evidence for the accused. The prosecutor should have provided it to the accused.

Dissenting opinion: There was no dissent.

Part II – State Court Case Analyses

In the Giglio case, the Supreme Court explained that the deal was relevant to this issue of the credibility of the witness. Relevant evidence is that evidence which is material to the case and is on point to the issue at hand. (Lee, 2007). That evidence was exculpatory evidence. Exculpatory evidence is that evidence which tends to favor the defendant as to guilt or to mitigate punishment. Brady and Giglio are cases that outline the prosecutor’s duties beyond his or her responsibility to prosecute. These cases stand for the proposition that the prosecutor also has a duty to ensure the sanctity of a fair trial for the defendant. The prosecutor is required to make sure he or she has the evidence that tends to proves guilt beyond a reasonable doubt, but that he or she also has a duty to think in terms of what evidence would favor the defendant and ensure it is provided to the accused. The responsibilities recognized in these two U.S. Supreme Court decisions have carried over to the State court systems in all fifty states as well as the inferior federal courts.

When researching the issue of case law relevant to evidence favorable to a defendant, one must be sure to research both lines of decisions, state and federal rulings for your jurisdiction. In Utah, the Brady Standard can be found in Tillman v. State, 128 P.3d 1123 (Utah 2005). In Tillman, the Utah Supreme Court reiterated the importance of providing exculpatory evidence and expressed it’s the duty of the prosecutor as well as law enforcement to present that favorable evidence to the accused.

In Wyoming, the Brady Standard can be found in Davis v. State, 47 P.3d 981 (Wyo. 2002). In a case practically mirroring Giglio, the Wyoming Supreme Court restated that the prosecutor has a duty to disclose impeachment and exculpatory evidence to the accused even if not requested by the defendant. It further clarified that this duty included evidence only known by the police and not to the prosecutor. The Court said it was the duty of the prosecutor to learn of any exculpatory evidence from the police. In this particular case, since the witness was key for the conviction, and because a tape recording of the witness using drugs was withheld, the Court found that it was Brady material and the nondisclosure violated Brady. Therefore, the Wyoming Supreme Court reversed the conviction and remand for a new trial.

In Colorado, the Brady Standard can be found in People v. Dist. Ct., City & Cty. of Denver, 808 P.3d 831 (Colo. 1991). In that case, the trial court awarded the defendant’s attorney’s fees from public funds. In its order, the trial court stated, in the alternative, if attorney’s fees were not paid, then an order of dismissal would be the sanction for the prosecutor’s failure to provide the defendant with Brady impeachment evidence. The Colorado Supreme Court reversed the trial court explaining that the award of attorney’s fees is not authorized in Rule 16 (the discovery rule) and further stated that a dismissal would be an abuse of discretion. The Supreme Court outlined that the only available remedy for a discovery violation could be an order to permit the discovery, to grant a continuance, and a prohibition of the wrongfully withheld evidence by the prosecutor.

In Idaho, the Brady Standard can be found in State v. Gardner, 885 P.2d 1144 (Idaho App. 1994). In that case, the accused was charged with vehicular manslaughter. The defendant was a allegedly driving under in the influence of drugs or alcohol when he was involved in a fatal collision with another driver. After entering a guilty plea, the accused learned a witness statement claimed a tire blown right before the collision. The Idaho Court of Appeals agreed that such evidence was Brady material in nature because it tended to negate the guilt of the defendant. The prosecutor claimed he was just as ignorant of the statement as the defendant urging the court to view no Brady violation occurred. The Court of Appeals refused, reiterating that duty was the Government’s and all its agents having a significant role in the investigation and prosecution of the case.

As the two briefed cases above, and the following state cases all illustrate, Government bears the unified duty to search for and disclose to the defendant evidence that tends to negate the guilt of the accused, tends to impeach the Government’s witnesses, and that affect the degree of punishment of the defendant if convicted. What these cases also show is that duty at times gets violated. In each of these cases, the discovery of the Brady violation occurred after the conviction. The discovery can happen by accident or by an independent search. Private investigators, who specialize in criminal defense, can be hired to search for exculpatory evidence, both negating guilt or impeaching witnesses. The private investigator accomplishes the by consulting with the defendant’s attorney or by conducting a confidential interview with the accused, by reviewing the relevant charge or charges, by inspecting the crime scene, by looking for surveillance cameras near the crime scene, by canvassing for other witnesses, by submitting Government Records requests to local, state or federal agencies, etc.

Not every case requires hiring a private investigator. However, a private investigator is encouraged for major crimes because the stakes are high. Also, a private investigator is encouraged in minor offenses because the cracks are bigger because the case is less important to the Government than major crimes.

References:

1. Brady v. Maryland, 373 U.S. 83 (1963).
2. Giglio v. United States, 405 U.S. 150 (1972).
3. Tillman v. State, 128 P.3d 1123 (Utah 2005).
4. Davis v. State, 47 P.3d 981 (Wyo. 2002).
5. People v. Dist. Ct., City & Cty. of Denver, 808 P.3d 831 (Colo. 1991).
6. State v. Gardner, 885 P.2d 1144 (Idaho App. 1994)
7. Lee, G.D. (2007). Practical Criminal Evidence. Pearson-Prentice Hall.
8. Federal Rules of Evidence. Rule 401.

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