We wrote recently on our distaste for those on the defense side who persist in playing games. It should go without saying that it is far worse for the prosecution to play games. And yet it happens all the time.
Ideally, when the prosecution has done its job right, it’s going to be holding all the cards. If those cards are good, there’s little reason not to show them early and convince the defense to fold. It saves everyone the expense and burden of litigating and trying a case that ought to just plead out.
And if those cards aren’t so good, then fairness requires that they still be shown. Simple due process requires that a criminal defendant — someone whose life, liberty, reputation and property the government intends to destroy — be told when the government has evidence that might help him defend himself. If such evidence is in the government’s possession, it’s not realistic to believe that the defense would ever discover that evidence. Law enforcement is rarely willing to share information with the defense. And even with evidence from other sources, the defense never has anywhere near the resources and ability of the government to discover that evidence. Anyone who thinks the two sides are fairly matched in this regard either has no experience, or no active brain cells.
So that’s why we have the Brady rule. Prosecutors are supposed to give the defense any evidence possessed by the government that might help the defense at trial or at sentencing. It’s a great rule, but the problem is that prosecutors often have a hard time following it. And they get away with it plenty, because it’s not like the defense was ever going to learn of the existence of that evidence. And they have absolute immunity from civil suit for their Brady violations.
What happens often enough, unfortunately, is that prosecutors try to game the rule. Any game-playing by a prosecutor is abhorrent, beyond unethical, as it abuses the overwhelming power of the government. But gaming the very rule intended to prevent such game-playing is perverse.
How do they do it? One simple way is to just not hand it over, secure in the expectation that the defense won’t ever find out. The prosecutor can justify this by claiming it wasn’t really Brady material. Perhaps they spin it as something that isn’t really helpful to the defense, as if their perspective is the only correct one. Perhaps they spin it as just discovery-type stuff, which unfortunately is not discoverable at this time, if ever. Or they can just cross their fingers and hope nobody ever gets wise.
Another way to game the rule is to claim ignorance. There may in fact be exculpatory evidence, but law enforcement never let the prosecutor know of it, and the prosecutor didn’t try all that hard to look for it, if at all. That’s no excuse — law enforcement is the government, and what it knows is imputed to the prosecution — but the prosecutor’s failure to obtain the information keeps it out of the defense’s hands.
Another way to game the rule is to rely on an office’s “open-file discovery” policy to make the defense think they’ve received everything they’re entitled to, when in fact the critical evidence was either withheld, knowingly excluded from the prosecution’s file, otherwise not made part of the file, or deemed “not discoverable.” This game involves a level of deception, essentially lying to the defense that they’ve been given everything.
An “open-file discovery” policy can also be used to game Brady by just dumping a warehouse full of documents on the defense, without highlighting where the potentially exculpatory evidence might be found. The closer in time to trial this happens, the worse it is. But it’s intellectually dishonest for the prosecution to claim “we gave it to them, it’s not our fault they didn’t spot it.”
A particularly nasty game gets played when the defense has reason to believe the evidence is out there, but for some reason — such as when it’s possessed by the police — the defense isn’t able to get the specifics. So the defense notifies the prosecution, and the prosecution claims not to have a Brady obligation, because the defense already knows about the information. This also happens when the prosecution tells defense counsel that the defendant was there, so go ask him what happened. That’s not the rule. If the defense actually possesses the evidence (or could reasonably get it), then there’s no need for the prosecution to provide a second copy. But anything short of that imposes an affirmative duty on the prosecution to collect and share that evidence. Prosecutors like to hide in the penumbra of what a defendant might, with reasonable diligence, discover on his own. But that’s avoiding a constitutional duty, not complying with it.
There are any number of other games that get played — like all the procedural obstacles that get thrown in the way of post-conviction attempts to establish actual innocence — but these are all examples we’ve come across in our own experience. Suffice it to say, prosecutors are playing games with people’s lives all the time.
So it was with some cautious optimism that we saw the resolution that the American Bar Association adopted today, basically telling courts to devise detailed laundry lists of things that count as Brady material in their courthouse, and to provide them to prosecutors and defense counsel in the cases that come before them. If adopted, this practice would make it at least more difficult for prosecutors to claim ignorance of material that could have existed. And it would make it easier for defense attorneys to spot particular bits of police paperwork and other kinds of evidence that they might not have known to ask for, if not disclosed. It would help the hard-working defense lawyer to root out the Brady that might be there, and it would help the ethical prosecutor collect such material that they might not otherwise have obtained.
RESOLVED, That the American Bar Association urges federal, state, territorial, tribal, and local courts to adopt a procedure whereby a criminal trial court shall, at a reasonable time prior to a criminal trial, disseminate to the prosecution and defense a written checklist delineating in detail the general disclosure obligations of the prosecution under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny and applicable ethical standards.FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial, tribal, and local courts in implementing the above procedure to require a criminal trial court to create a standing committee of local prosecutors and criminal defense attorneys to assist the court in formulating and updating the written checklist delineating in detail the prosecution’s general disclosure obligations.FURTHER RESOLVED, That any omissions or deficiencies in the written checklist provided by the court should not relieve either the prosecutor or defense counsel of their legal and ethical responsibilities with respect to providing and seeking disclosures.
Now let’s see if it has any effect.