Brady v. Maryland, 373 U.S. 83 (1963) 2/19/2014. What is Brady Information? Exculpating Evidence. Exculpatory Information. Impeachment Evidence

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1 2/19/2014 The Ethical, Effective Assistance of Counsel and Jencks Act Consequences of Brady v. Maryland and its Progeny David P. Baugh, Esq E. Main Street, Suite 114 Richmond, Virginia What is Brady Information? Exculpatory Information Impeachment Evidence Evidence which mitigates the degree of offense or punishment Exculpating Evidence Evidence which suggests that someone else committed the offense 1

2 2/19/2014 Impeaching Evidence Any evidence that would bring into question the credibility of any government witness, inconsistent witness statements or prior inconsistent statements by a witness Mitigating Evidence Information which reduces the grade of offense or punishment - say from murder to manslaughter, or a lesser weight of drug cases Ethical Considerations Time of Tender for use at trial Timeliness should be in order to use during preparation Virginia LEO

3 2/19/2014 ABA Rules of Professional Conduct Rule 3.8 Special Responsibilities of a Prosecutor The prosecutor in a criminal case shall:... (d) make timely disclosure to the defenses of all evidence or information known that tends to negate the guilt... Mitigate the offense... or except when... relieved of this responsibility by a protective order of the tribunal. The Brady Motion All Brady information know to the government Pointless and no constitutional or record protection except to the most basic and obvious Brady information, such as a confession from someone else or a statement from a witness that someone else committed the offense A general Brady request is totally worthless for appeal or habeas. U..S. v. Agurs, 427 U.S. 97 (1976) A specific Brady request the prosecution is seldom, if ever excused from complying, irrespective of good or bad faith on the part of the prosecution. U.S. v. Agurs, supra. - Note this standard triggers the prosecution s proving beyond a reasonable doubt that denial of tender did not affect the verdict. 3

4 2/19/2014 Making the Brady Record Timeliness If something pops in a Brady tender which changes your defense hypo or which gives rise to anew defense hypo, move for continuance and object, object, object. Reality You cannot provide effective assistance of counsel without tender of all Brady during trial preparation and before plea negotiation Guilty plea must conform with effective assistance of counsel standards. Missouri v. Frye, 132 U.S (2012) Guilty plea waiver of rights must be intelligently, knowing, and deliberately made. U.S. v. Zerbst ABA Guideline 6.3 Decision to Enter a Plea of Guilty (a) Counsel shall make it clear to the client that the client must make the ultimate decision whether to plead guilty. Counsel should investigate and explain to the client the prospective strengths and weaknesses of the case for the prosecution and defense,... Counsel should not base a recommendation of a plea of guilty solely upon the client s knowledge of guilt or solely upon a favorable disposition offer. 4

5 2/19/2014 Motion for Court Monitored Brady Tender Should: Require the prosecution to admit or deny, either in writing or on the record, the existence of each specific and enumerated item of Brady requested information sought by the defense. Motion for Court Monitored Brady Tender Should: Require the prosecution to admit or deny, either in writing or on the record, the specific steps taken to comply with Kyles v. Whitley, 514 U.S. 419 (1995) to determine the existence of specific requested Brady information from the files and writings of law enforcement. Motion for Court Monitored Brady Tender Should: Strongly encourage the prosecution to disclose, or submit for in camera review, under penalty of sanction including dismissal, all evidence arguably within the rule in Brady. 5

6 2/19/2014 Motion for Court Monitored Brady Tender Should: Require the prosecution to submit in camera, ex parte review, on the sealed record, any requested specific exculpating, mitigating or impeaching information it wishes to withhold because the prosecution believes the information is not material to the outcome under Brady or the disclosure would cause a public or witness security concern. Motion for Court Monitored Brady Tender Should: The Court will issue written orders and findings of fact and conclusions of law regarding each specific Brady request made by the defense. Getting a LEO from your State Bar 6

7 2/19/2014 Jencks Act Conclusion Questions? 7

8 THE ETHICAL, EFFECTIVE ASSISTANCE OF COUNSEL AND JENCKS ACT CONSEQUENCES OF BRADY V. MARYLAND AND ITS PROGENY VIRGINIA TRIAL LAWYER S ASSOCIATION The Homestead March 28, 2014 David P. Baugh, Esq. dpbaugh@dpbaugh.com Richmond, Virginia Violations of and the denial of due process protections have become one of the largest reasons for successful habeas challenges to criminal convictions. Mistaken and, in many instances, deliberate suppression of evidence which tends to negate the guilt of the defendant, mitigate his or her punishment or which could impeach a government witness has become an all too frequent blemish on criminal prosecution in this nation. A cursory internet investigation bears out the extent of the problem and the due process impact of this issue. It is further complicated by several notable cases wherein systemic toleration for the suppression of evidence favorable to the defendant has grabbed the headlines of the nation's leading

9 newspapers and lead to sweeping court orders in federal and state cases. A quick Google search for cases involving Brady violations and suppressed exculpating evidence. The relatively recent civil opinion in Connick v. Thompson, 563 U.S (2011) has eliminated virtually any deterrent effect of detection of prosecutor misconduct by granting an absolute immunity from 1983 liability for prosecutors engaging in deliberate and long term systematic pattern of suppression of Brady information. to hundreds of pages of law review cites from around that nation from over the years. 1 Compounding the difficulty with implementation of the Brady protections is the sometimes innocent failure of prosecutors to recognize favorable evidence to the defense. Another, and perhaps the greatest impediment to full benefit of the due process opinion in Brady is the ignorance of judges, prosecutors and, all too many defense attorneys as to what Brady material is the good faith opinion of the prosecutor that the information is not exculpating, impeaching or mitigating. 1 Examples Geo. J. Ethics, 1993; Wisconsin Law Review, 2006; Duke Law journal, 1969, Wash. University Law Quarterly, 1999; Fordham L. Rev. 1984; Fordham L. Rev.; 2000; McGeorge Law Review, 2002; Colum. L. Rev. 1989; Rutgers L. Rev. 1990; The Yale Law Journal, 2006 reveal the duration and legal depth of the issue. 2

10 WHAT IS BRADY INFORMATION? - Brady information is not merely exculpating evidence: exculpating evidence being evidence which goes to prove your client s innocence. Brady material, for which the government has a constitutional obligation to tender to the defendant, includes: Exculpating evidence, Impeachment Evidence, and Evidence which could mitigate the defendant s punishment. It is important to remember all three types of evidence: exculpating, impeaching and mitigating and understanding the examples and differences of each. Exculpating evidence is relatively easy evidence to understand and recognize: a confession from someone else, or a witness who says someone else committed or is likely to have committed the offense. Impeachment evidence is usually thought of as evidence of some government witness having a reason for lying. It the witness is getting a deal in return for his or her testimony, that is impeachment evidence or Giglio evidence. But also, and it should be recognized and described in your motion, impeachment evidence would be if a witness has given differing statements. If one statement, Statement A, says one thing and another, 3

11 Statement B, says something else, each of those is impeaching. Statement A can be used to impeach the witness on Statement B and Statement B can be used to impeach on Statement A. If there are different witnesses and one witness says the robber had on a blue shirt and another says the witness had one a red shirt, that is impeachment. Both are impeachment as each can be used to impeach the other. Mitigation evidence is also an aspect of Brady often overlooked. If one witness says the defendant was selling 100 grams a week and another says he was selling 50 grams a week, that is mitigating. The statements lessen the total weight and that lessens the punishment. Likewise, for example in a premeditated murder case, one witness says your client was arguing with the victim before they were shot, or that they had a beef and that was a part of the killing, the presence of hot blood negates premeditation. It lessens the murder one to a murder two or three. Some Brady materials can be readily identified: the confession of another and the contradicting witness are but two examples. However many Brady requirements are determined by the defense hypothesis, of which the prosecution might not be aware. 4

12 By example a victim's propensity for violent outbursts might not be classified as Brady in a routine premeditated murder case. Such would likely be inadmissible under the federal rules of evidence. However, if the defendant is formulating a self-defense case, such evidence would be admissible in a murder case. In a non-capital case a denial of Brady tender can result in reversal only if the suppressed evidence could have lead to a different verdict. ETHICICAL CONSIDERATIONS CONCERNING BRADY Most courts let the prosecutor provide Brady material in time to be used from cross examination of a witness. That is the law. There is much and very recent case law indicating that giving the Brady material up during trial will suffice to comply with Brady obligations. The opinions in support of this last minute tender are replete with references to the assertions that there is not constitutional right to discovery. Never noticed by the courts is that Brady is not discovery. Brady tender is a constitutional due process issue. Case law has abdicated the entire constitutional question to the prosecution. What is Brady and when must it be tendered is subject to the prosecutor s understanding of the law, without supervision, and his or her whim. On appeal the Brady violation is only subject to reversal only if the 5

13 omitted evidence would have changed the outcome. This assessment is made against a record and defense crafted without benefit of knowledge of the omitted evidence. Secondly, in most instances the attorneys object to the late tender, but that is the end. From this moment on, as we try to drag the courts into compliance with the constitution, as soon as the last minute tender is made of some impeachment information, immediately move for continuance to research and investigate the tender. See if there is something that should be followed up on, outside of court. If denied, OBJECT, OBJECT OBJECT. However, the ABA ethical guidelines, adopted by most state bars have changed that. The new guidelines do not change the law, but they do set an ethical Brady tender obligation earlier than cross examination. In the ABA Model Guidelines tender is required when the prosecutor finds the Brady or identifies, in response to a Brady request, the Brady material. If not tendered immediately the prosecutor is to seek a protective order. ABA Rules of Professional Conduct Rule 3.8: Special Responsibilities of a Prosecutor Advocate Rule 3.8 Special Responsibilities Of A Prosecutor 6

14 The prosecutor in a criminal case shall: (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; Emphasis added. You should check your state ethical rules. This ABA model rule has been accepted and, now, including, in the ethical guidelines of most states. Again, although not law, it is an argument you can use and you should be familiar. The word "timely" should be better defined. Some states have ruled that the tender of the information if made before trial or during the trial at a time prior to the defendant's resting is sufficient. Disclosure after investigation, formulation and commitment to a defense theory before the jury in opening statement is not timely and denies the defendant effective assistance of counsel. The defendant enjoys, among his rights to effective assistance of counsel the right to have the attorney fully and properly investigate all leads. Additionally, the defendant has the right to have his or her attorney to apply his or her legal expertise in 7

15 developing, far in advance of trial, a defensive theory. Such a theory could not be formulated if the true extent of the government's allegations and evidence is not known. Tender during trial might require the defense to negate its opening statement and the theory of the case, the defense theory at that time being inconsistent with a defense theory predicated with ignorance of the suppressed evidence. Virginia's bar counsel changed its definition of timely by issuing a new Legal Ethics Opinion. The Commonwealth of Virginia State Bar Office of Bar Counsel recently issued Legal Ethics Opinion 1862 in March of 2012 which defined "timely disclosure" as mandating the disclosure duty as soon as the prosecutor is aware of the existence of the information, unless relieved of the obligation by protective order. This definition recognizes and foresees the need for the tender of the Brady information at a time which enables the defense to investigate, evaluate and use the exculpating information. It should be argued in a real and complete Brady motion that the language of the ABA Model Rules of Professional Conduct, again, adopted by every state I am aware of and have checked, implicitly conveys to the court leave to compel ex parte submission of information, for whatever reason, the prosecution wishes to conceal. The seeking of a protective order 8

16 by the government would necessitate in camera review of the item for which nondisclosure is sought. In every case you have, if you are serious about the case, you should file a motion for court monitored Brady tender. I would also encourage all true criminal defense advocates to file for legal ethics opinions in your state for a similar ethical definition of the word timely regarding the duty to tender Brady materials. Of note is that the Assistant Attorney General issued a memo to all United States Attorneys setting forth the policy of the Department of Justice in relation to discovery and Brady. Google will take you to the memo and a portion of it is attached to this paper. In short, the Assistant Attorney General Ogden states that Brady materials should be tendered when discovered. No court would allow a government memo to be viewed as binding on the Department of Justice or to give rise to a defendant s right. Do each of you remember the Petit Policy? However, the Ogden policy could be used in support of a Court Monitored Brady Tender Motion. You should also inform the court that you would be ineffective to advise a client to take a plea or even enter into plea negotiations until all discovery and Brady material has 9

17 been tendered. That is as per the ABA Capital Counsel guidelines and the policy of many public defender offices. THE ACTUAL BRADY MOTION Most attorneys file a discovery motion, under Rule 16 in federal court or your local court rules, and add a sentence asking for all Brady information known to the government. Such a motion is pointless. It has no constitutional and record protection implications except for the most basic information, such as the confession of someone else. No, a proper Brady motion must specifically set out what is being sought. The question arises, naturally, how can someone seek specifically that of which he or she is unaware? MAKING YOUR BRADY RECORD Start with this reality. A general, plain vanilla, give me my Brady material motion is worthless for preserving the client s rights. And when a judge starts are setting the case with a blanket order for Rule 16 and Brady tender, the judge is an idiot. How can someone order Brady without even knowing or even having an inkling of your defensive theory. It is that defensive theory which determines what is exculpating, mitigating or impeaching. 10

18 Simply stated, a trial advocate need only remember a few basic rules to preserve the appellate record. 1. A general or non-specific Brady request ( Defendant moves for tender of all Brady materials. ) is totally worthless and of no greater value for appellate or habeas purposes than no Brady motion. See United States v. Agurs, 427 U.S. 97 ((1976). 2. When a defendant makes a specific and express request for identified Brady material within the possession of the government, the prosecution is seldom, if ever excused from complying with the request, irrespective of good or bad faith on the part of the prosecution. The conviction must be reversed if the suppressed evidence might have affected the outcome of the trial. See Agurs, supra. ((This standard for review has been stated as warranting reversal unless the prosecution can prove, beyond a reasonable doubt, the suppressed evidence did not affect the outcome of the case. 3. When Brady information is not tendered until shortly before trial or during trial, to preserve the record counsel must immediately move for continuance to investigate and develop the information. Failure to comply and preserve the lateness of tender, forever 11

19 waives any defect. The objection should be couched in terms of due process and effective assistance of counsel. How can counsel defend or prepare a defense unmindful of evidence in possession of the government which weakens the government s case. BRADY AND PLEA NEGOTIATION AND PLEAS - In 2012 the United States Supreme Court came down with its opinion in Missouri v. Frye, 132 U.S (2012). Without getting into a lengthy discussion about the facts of the case, the gist of the opinion is that the United States Supreme Court extended the right to effective assistance of counsel to pleas and plea bargaining. Previously any effective assistance of counsel concerns for a client would be resolved with a plea of guilty. The court noted that so many criminal cases are resolved with guilty pleas, denial of effective assistance of counsel should be a basis for habeas relieve in a plea. The implications of this opinion are pertinent to any discussion concerning Brady v. Maryland, when one considers the ABA guidelines for indigent defense. Guideline Standard 6.3 Decision to Enter a Plea of Guilty, states: (a) Counsel shall make it clear to the client that the client must make the ultimate decision whether to plead guilty. Counsel should investigate and explain to the client the prospective strengths and weakness of the case for the prosecution and defense, including the 12

20 availability of prosecution witness (if known), relevant concessions and benefits subject to negotiation, and possible consequences of a conviction after trial. Counsel should not base a recommendation of a pleas of guilty solely on the client s acknowledgement of guilt or solely on a favorable disposition offer. This standard would seem to impart a logical requirement that effective assistance of counsel has been denied when an attorney engages in plea negotiations with the prosecution and plea discussions with the client until the case has been completely investigated, factually and legally, and the strengths and weaknesses of the government s case determined. How can a client be given complete disclosure of the strengths and weaknesses of the government s case without disclosure of Brady material? Brady information, by its very nature, is potential weakness in the government s case and could be the basis for a finding of innocence, impeachment of a government witness and/or mitigation of the sentence? Since the opinion in Missouri v. Frye, defense counsel cannot rely upon at-trial tender of Brady material. Such material must be or should be tendered before a plea of guilty can be discussed intelligently and effectively with a client. CONCLUSION As members of the criminal defense bar, charged with the protecting of the constitution, we must unerringly push the envelope and increase the 13

21 protections. We must not all into settling for what is usual. Be creative. Be forceful and assert every constitutional right. 14

22 SAMPLE COURT MONITORED BRADY MOTION This is a sample motion, applicable in every kind of criminal case to prevent, rather than try to unring the bell, Brady violations. UNITED STATES DISTRICT COURT EASTERN DISTRICT of WHEREVER UNITED STATES OF AMERICA, ) ) Plaintiff, ) Criminal No XXXXXXX ) v. ) ) XXXXXXXXXX ) ) Defendant. ) MOTION FOR COURT MONITORED BRADY DISCLOSURE MOTION SUMMARY The United States Department of Justice has an abysmal history, including current events, of prosecutorial misconduct, particularly in compliance with the constitutional due process requirements of Brady v. Maryland, 373 U.S. 83 (1963). The issue has been exacerbated by the recent opinion in Connick v. Thompson, 131 U.S (2011) creating absolute immunity of prosecutors for wrongful convictions resulting from 15

23 suppression of defense favorable evidence. Defendant proposes that the following process be implemented to permit the prosecution to comply with the Rules of Professional Conduct and to seek, when necessary, protective orders, when specific Brady requests are made and the prosecution questions that appropriateness of tender or questions the classification of a given item of evidence or information as Brady material, subject to immediate tender. PRAYER SUMMARY To limit the likelihood of intentional or negligent denial of the defendant's due process rights, the defendant seeks implementation of the following: 1. Requiring the prosecution to admit or deny, either in writing or on the record, the existence of each specific and enumerated item of Brady requested information sought by the defense. 2. Requiring the prosecution to state, either in writing or on the record, the specific steps it has taken to comply with Kyles v. Whitley, 514 U.S. 419 (1995), obligations to determine the existence of specific Brady request information in the files and writings of law enforcement. 3. The court strongly encouraging the prosecution to disclose, or at least to submit for in camera review, under penalty of sanction including 16

24 dismissal, all evidence that is arguably within the rule in Brady and/or in compliance with a specific and enumerated Brady request of the defense. 4. Requiring the prosecution to submit for in camera review, on the record, such record to be sealed among the record of this case, any exculpating, mitigating or impeachment information it wishes to withhold because the prosecution believes the information is not "material" to the outcome under Brady or information the disclosure of which would cause a public or witness security concern. 5. The court issuing written orders and findings of fact and conclusions of law regarding each specific Brady request made by the defense. MOTION COMES NOW, XXXXXXXXX, defendant herein, by and through counsel and moves for the implementation and the issuance of an order detailing a specific procedure for court monitored constitutional due process Brady tender supervision to insure that the prosecution can recognize material which is subject to tender pursuant to Brady. Brady and the ANY STATE Supreme Court ethics obligation require the prosecution to timely tender any information known to the prosecution 17

25 and law enforcement agencies involved in the investigation of the case all information which: 1. could negate the defendant's guilt, or 2. which could lessen the degree of the offense, or 3. which could be used to impeach any government witness. In support of the motion the defendant would allege and prove the following: 1. the negligent and intentional non-compliance for the timely disclosure of Brady material is a significant cause for substantiated allegations of mistrials, wrongful convictions and actual innocence convictions, in capital and non-capital cases, in the various courts of this country, including the those of the United States. 2. there have been a significant series of documented violations of the requirements for due process Brady tenders of evidence. 3. the Office of Professional Responsibility, the ethics compliance arm of the United States District of Justice, has a long and documented record of not imposing sanctions upon prosecutors found to have violated defendants' due process rights through suppression of evidence favorable to the accused. 18

26 4. That the decision in Connick v. Thompson, 131 U.S (2011), conveying absolute immunity from civil liability to prosecutors for constitutional due process violations, removes one available sanction by defendants for intentional violation of constitutional due process rights. 5. the existing standard of appellate review in criminal cases grants reversals for convictions resulting from Brady violations only in those instances wherein the suppressed evidence is would necessitate a different verdict. See United States v. Bagley, 473 U.S. 667, (1985) at 662 ("[Brady] evidence is only material 'if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.'"); Bell v. Bell, 512 F.3d 233 (6th Cir., ("... [N]ot every violation of that duty [to disclose exculpating evidence] necessarily establishes that the outcome was unjust.... there is never a real 'Brady violation' unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict."); Hutchinson v. Bell, 303 F.3d 720 (Fed. 6th Cir., 2002)("The district court also noted that petitioner could not show a reasonable probability of a different result if the [suppressed Brady] materials in the second group of [suppressed Brady materials] had been timely disclosed."). 19

27 WHEREFORE, premises considered, defendant prays that the court impose the above procedures under the heightened standards for protection of constitutional and statutory rights to insure the defendant's protection in a capital trial. Respectfully submitted, XXXXXXXXX By: Of Counsel 20

28 This is the Legal Ethics Opinion of the Virginia State Bar concerning the timeliness of Brady tender. It is offered to encourage other criminal trial lawyers to solicit from your ethics body, similar opinions and standards and provide substance to a critical legal and constitutional standard: due process, what the courts have not provided. DRAFT OPINION OF VIRGINIA LEO 1862 (This opinion is a DRAFT Opinion and is subject to revision or withdrawal until it is finalized by the Ethics Committee March 15, 2012) LEGAL ETHICS OPINION 1862 WHAT CONSTITUTES TIMELY DISCLOSURE 1 OF EXCULPATORY EVIDENCE BY A 2 PROSECUTOR? 3 4 In this hypothetical, in a pending criminal prosecution, the prosecutor is aware of 5 exculpatory evidence, in the form of witness statements accusing another individual of the 6 offense with which the defendant is charged. The prosecutor is also aware that the primary 7 inculpatory witness, an eyewitness to the offense, has died and therefore will not be available to 8 testify in future proceedings in the case. There is an upcoming preliminary hearing scheduled in 9 the case, although the prosecutor has offered a plea bargain in which the defendant would plead 10 guilty to a lesser offense and waive the preliminary hearing. The prosecutor has not disclosed 11 either the exculpatory evidence or the death of the primary witness QUESTION PRESENTED Is the timely disclosure of exculpatory evidence, as required by Rule 3.8(d), broader 16 than the disclosure mandated by, and other case 17 law interpreting the Due Process clause of the Constitution? If so, what constitutes 18 timely disclosure for the purpose of Rule 3.8(d)? During plea negotiations, does Rule 3.8(d) require a prosecutor to reveal information that 21 weakens the prosecution s case against the defendant? APPLICABLE RULES AND OPINIONS The applicable Rule of Professional Conduct is Rule 3.8(d) Rule 3.8 Additional Responsibilities Of A Prosecutor A lawyer engaged in a prosecutorial function shall: *** (d) make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of evidence which the prosecutor knows tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment, except when disclosure is precluded or modified by order of a court; 2 See Cone v. Bell, 129 S. Ct. 1769, 1783 n. 15 (2009) ( Although the Due Process Clause of the Fourteenth Amendment, as interpreted by Brady, only mandates the disclosure of material evidence, the obligation to 21

29 disclose evidence favorable to the defense may arise more broadly under a prosecutor s ethical or statutory obligations. ), citing Rule 3.8(d); Kyles v. Whitley, 514 U.S. 419, 436 (1995) (noting that Brady requires less of the prosecution than Rule 3.8(d)). 27 ANALYSIS Pursuant to Brady v. Maryland and subsequent cases, a prosecutor has the legal 30 obligation to disclose material exculpatory evidence to a defendant in time for the defendant to 31 make use of it at trial. A number of cases interpreting this legal obligation have noted that the 32 prosecutor s ethical duty to disclose exculpatory evidence is broader than the legal duty arising 33 from the Due Process clause, although they have not explored the contours of that ethical duty LEO 1862 Page 2 Rule 3.8(d) does not refer to or incorporate, in the language of the Rule or its comments, 36 the Brady standard for disclosure. The standard established by the Rule is also significantly 37 different from the Brady standard in at least two ways: first, the Rule is not limited to material 38 evidence, but rather applies to all evidence which has some exculpatory effect on the defendant s 39 guilt or sentence; second, the Rule only requires disclosure when the prosecutor has actual 40 knowledge of the evidence and its exculpatory nature3, while Brady imputes knowledge of other 41 state actors, such as the police, to the prosecutor. These differences from the Brady standard 42 raise the further question of whether Rule 3.8(d) requires earlier disclosure than the Brady 43 standard, which requires only that the evidence be disclosed in time for the defendant to make 44 effective use of it. Thus, the prosecutor has complied with the legal disclosure requirement if the 45 evidence is disclosed in the midst of trial so long as the defendant has an opportunity to put on 46 the relevant evidence As Comment [4] to Rule 3.8 explains, [p]aragraphs (d) and (e) address knowing violations of the respective provisions so as to allow for better understanding and easier enforcement by excluding situations where the lawyer/prosecutor does not have knowledge or control over the ultra vires actions of law enforcement personnel who may be only minimally involved in a case. 22

30 4 See e.g., Read v. Virginia State Bar, 233 Va. 560, 357 S.E.2d 544 (1987). 48 Although the Committee has never definitively addressed the question, it opines today 49 that the duty of timely disclosure of exculpatory evidence requires earlier disclosure than the 50 Brady standard, which is necessarily retrospective, requires. This conclusion is largely based on 51 the response to Read v. Virginia State Bar, in which the Supreme Court of Virginia reversed the 52 Virginia State Bar Disciplinary Board s order revoking a prosecutor s license, finding that the 53 prosecutor had complied with his legal obligations under Brady and therefore had complied with 54 the correlative ethics rule in force at that time. The disciplinary rule in effect at that time was 55 DR of the Virginia Code of Professional Responsibility which read, The prosecutor in a 56 criminal case or a government lawyer shall... [d]isclose to a defendant all information required 57 by law At the time of the conduct at issue, Beverly Read was a Commonwealth s Attorney. 60 Read was conducting the prosecution of an arson case. During the investigation, the 61 Commonwealth discovered two witnesses, Sils and Dunbar, who both identified the defendant at 62 the scene of the crime. Sils had second thoughts after he identified the defendant in a line-up and 63 later became convinced that the defendant was not the person Sils had observed at the scene of 64 the crime. Sils disclosed to Read that the defendant was definitely not the man observed at the 65 scene of the crime. Read told Sils that he would not be called as a witness and that his presence 66 was no longer necessary. Read concluded his case and rested without disclosing that the two 67 witnesses had changed their statements. When Sils went home and had further discussions with 68 the other witness, Dunbar, both became convinced that the defendant was not the man they saw. 69 They returned to the courthouse during the trial the following day and agreed to testify for the 70 defense. Read then attempted to pass a message to defense counsel that would have disclosed 71 the exculpatory information but defense counsel refused to accept the writing. Unsuccessful in 72 passing this information to defense counsel, Read then read into the record that the two witnesses 73 had recanted and would testify that the defendant was not the man they saw at the scene of the 74 crime. After this exchange, defense counsel moved to dismiss for prosecutorial misconduct. 75 LEO 1862 Page 3 23

31 The motion to dismiss was denied. A complaint against Read was made with the Virginia State 76 Bar and a disciplinary proceeding ensued Read s counsel argued that his client had complied with Brady because the information 79 was available to use during trial, and therefore had disclosed all information required by law. 80 In spite of the Board s finding that Read had willfully intended to see the defendant tried without 81 the disclosure that the two witnesses had recanted, the Supreme Court of Virginia agreed that 82 Read had complied with the disciplinary rule, reversed the Disciplinary Board s decision, and 83 entered final judgment that Read had not engaged in any misconduct. Following this decision, 84 the Bar rewrote the relevant rule, replacing the Brady standard with the standard now found in 85 Rule 3.8(d) In light of the conclusion that Rule 3.8(d) requires earlier disclosure than the Brady 88 standard, the Committee next turns to the meaning of timely disclosure. In general, timely is 89 defined as occurring at a suitable or opportune time or coming early or at the right time. 90 Thus, a timely disclosure is one that is made as soon as practicable considering all the facts and 91 circumstances of the case. On the other hand, the duty to make a timely disclosure is violated 92 when a prosecutor intentionally delays making the disclosure or withholds disclosure in order to 93 gain a strategic advantage in the case The text of the Rule makes clear that a court order is sufficient to delay or excuse 96 disclosure of information that would otherwise have to be turned over to the defendant. Thus, 97 where the disclosure of particular facts at a particular time may jeopardize the investigation or a 98 witness, the prosecutor should immediately seek a protective order or other guidance from the 99 court in order to avoid those potential risks. As specified by the Rule, however, disclosure must 100 be precluded or modified by order of a court (emphasis added) in order for the prosecutor to 101 be excused from disclosure Because this is not a bright-line rule, the Committee cannot give a definitive answer to 104 the question of whether the prosecutor must immediately turn over the exculpatory evidence at 105 issue in the hypothetical; however, the prosecutor may not withhold the evidence merely because 106 his legal obligations pursuant to Brady have not yet been triggered The answer to the second question is apparent from the text of the Rule. The Rule 109 requires disclosure of the existence of evidence which the prosecutor knows is exculpatory. 110 Although the death or other unavailability of the prosecutor s primary witness likely does make 111 it less likely that the defendant will be convicted at trial, it is clearly not evidence and thus its 112 disclosure is not required by Rule 3.8(d) This opinion is advisory only based upon the facts as presented, and not binding on any 115 court or tribunal

32 THE OGDEN MEMO - US DEPARTMENT OF JUSTICE This is an excerpt of a memorandum sent to all United States Attorneys regarding discovery and, through it, the timeliness of Brady tender. Though not the law, it is a valuable aid and support for argument. David Ruhnke is to be thanked for bringing it to the attention of the defense bar. MEMORANDUM FOR DEPARTMENT PROSECUTORS Monday, January 4, 2010 FROM: David W. Ogden Deputy Attorney General SUBJECT: Guidance for Prosecutors Regarding Criminal Discovery B. Timing: Exculpatory information, regardless of whether the information is memorialized, must be disclosed to the defendant reasonably promptly after discovery. Impeachment information, which depends on the prosecutor s decision on who is or may be called as a government witness, will typically be disclosed at a reasonable time before trial to allow the trial to proceed efficiently. See USAM Section also notes, however, that witness security, national security, or other issues may require that disclosures of impeachment information be made at a time and in a manner consistent with the policy embodied in the Jencks Act. Prosecutors should be attentive to controlling law in their circuit and district governing disclosure obligations at various stages of litigation, such as pre-trial hearings, guilty pleas, and sentencing. Prosecutors should consult the local discovery rules for the district in which a case has been indicted. Many districts have broad, automatic discovery rules that require Rule 16 materials to be produced without a request by the defendant and within a specified time frame, unless a court order has been entered delaying discovery, as is common in complex cases. Prosecutors must comply with these local rules, applicable case law, and any final court order regarding discovery. In the absence of guidance from such local rules or court orders, prosecutors should consider making Rule 16 materials available as soon as is reasonably practical but must make disclosure no later than a reasonable time before trial. In deciding when and in what format to provide discovery, prosecutors should always consider security concerns and the other factors set forth in 25

33 subparagraph (A) above. Prosecutors should also ensure that they disclose Fed.R.Crim.P. 16(a)(1)(E) materials in a manner that triggers the reciprocal discovery obligations in Fed.R.Crim.P. 16(b)(1). Discovery obligations are continuing, and prosecutors should always be alert to developments occurring up to and through trial of the case that may impact their discovery obligations and require disclosure of information that was previously not disclosed. Emphasis added. 26

34 (This opinion is a DRAFT Opinion and is subject to revision or withdrawal until it is finalized by the Ethics Committee March 15, 2012) LEGAL ETHICS OPINION 1862 WHAT CONSTITUTES TIMELY DISCLOSURE OF EXCULPATORY EVIDENCE BY A PROSECUTOR? In this hypothetical, in a pending criminal prosecution, the prosecutor is aware of exculpatory evidence, in the form of witness statements accusing another individual of the offense with which the defendant is charged. The prosecutor is also aware that the primary inculpatory witness, an eyewitness to the offense, has died and therefore will not be available to testify in future proceedings in the case. There is an upcoming preliminary hearing scheduled in the case, although the prosecutor has offered a plea bargain in which the defendant would plead guilty to a lesser offense and waive the preliminary hearing. The prosecutor has not disclosed either the exculpatory evidence or the death of the primary witness. QUESTION PRESENTED 1. Is the timely disclosure of exculpatory evidence, as required by Rule 3.8(d), broader than the disclosure mandated by, and other case law interpreting the Due Process clause of the Constitution? If so, what constitutes timely disclosure for the purpose of Rule 3.8(d)? 2. During plea negotiations, does Rule 3.8(d) require a prosecutor to reveal information that weakens the prosecution s case against the defendant? APPLICABLE RULES AND OPINIONS The applicable Rule of Professional Conduct is Rule 3.8(d) 1. ANALYSIS Pursuant to Brady v. Maryland and subsequent cases, a prosecutor has the legal obligation to disclose material exculpatory evidence to a defendant in time for the defendant to make use of it at trial. A number of cases interpreting this legal obligation have noted that the prosecutor s ethical duty to disclose exculpatory evidence is broader than the legal duty arising from the Due Process clause, although they have not explored the contours of that ethical duty. 2 1 Rule 3.8 Additional Responsibilities Of A Prosecutor A lawyer engaged in a prosecutorial function shall: *** (d) make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of evidence which the prosecutor knows tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment, except when disclosure is precluded or modified by order of a court; 2 See Cone v. Bell, 129 S. Ct. 1769, 1783 n. 15 (2009) ( Although the Due Process Clause of the Fourteenth Amendment, as interpreted by Brady, only mandates the disclosure of material evidence, the obligation to disclose evidence favorable to the defense may arise more broadly under a prosecutor s ethical or statutory obligations. ), citing Rule 3.8(d); Kyles v. Whitley, 514 U.S. 419, 436 (1995) (noting that Brady requires less of the prosecution than Rule 3.8(d)).

35 LEO 1862 Page Rule 3.8(d) does not refer to or incorporate, in the language of the Rule or its comments, the Brady standard for disclosure. The standard established by the Rule is also significantly different from the Brady standard in at least two ways: first, the Rule is not limited to material evidence, but rather applies to all evidence which has some exculpatory effect on the defendant s guilt or sentence; second, the Rule only requires disclosure when the prosecutor has actual knowledge of the evidence and its exculpatory nature 3, while Brady imputes knowledge of other state actors, such as the police, to the prosecutor. These differences from the Brady standard raise the further question of whether Rule 3.8(d) requires earlier disclosure than the Brady standard, which requires only that the evidence be disclosed in time for the defendant to make effective use of it. Thus, the prosecutor has complied with the legal disclosure requirement if the evidence is disclosed in the midst of trial so long as the defendant has an opportunity to put on the relevant evidence. 4 Although the Committee has never definitively addressed the question, it opines today that the duty of timely disclosure of exculpatory evidence requires earlier disclosure than the Brady standard, which is necessarily retrospective, requires. This conclusion is largely based on the response to Read v. Virginia State Bar, in which the Supreme Court of Virginia reversed the Virginia State Bar Disciplinary Board s order revoking a prosecutor s license, finding that the prosecutor had complied with his legal obligations under Brady and therefore had complied with the correlative ethics rule in force at that time. The disciplinary rule in effect at that time was DR of the Virginia Code of Professional Responsibility which read, The prosecutor in a criminal case or a government lawyer shall... [d]isclose to a defendant all information required by law. At the time of the conduct at issue, Beverly Read was a Commonwealth s Attorney. Read was conducting the prosecution of an arson case. During the investigation, the Commonwealth discovered two witnesses, Sils and Dunbar, who both identified the defendant at the scene of the crime. Sils had second thoughts after he identified the defendant in a line-up and later became convinced that the defendant was not the person Sils had observed at the scene of the crime. Sils disclosed to Read that the defendant was definitely not the man observed at the scene of the crime. Read told Sils that he would not be called as a witness and that his presence was no longer necessary. Read concluded his case and rested without disclosing that the two witnesses had changed their statements. When Sils went home and had further discussions with the other witness, Dunbar, both became convinced that the defendant was not the man they saw. They returned to the courthouse during the trial the following day and agreed to testify for the defense. Read then attempted to pass a message to defense counsel that would have disclosed the exculpatory information but defense counsel refused to accept the writing. Unsuccessful in passing this information to defense counsel, Read then read into the record that the two witnesses had recanted and would testify that the defendant was not the man they saw at the scene of the crime. After this exchange, defense counsel moved to dismiss for prosecutorial misconduct. 3 As Comment [4] to Rule 3.8 explains, [p]aragraphs (d) and (e) address knowing violations of the respective provisions so as to allow for better understanding and easier enforcement by excluding situations where the lawyer/prosecutor does not have knowledge or control over the ultra vires actions of law enforcement personnel who may be only minimally involved in a case. 4 See e.g., Read v. Virginia State Bar, 233 Va. 560, 357 S.E.2d 544 (1987).

36 LEO 1862 Page The motion to dismiss was denied. A complaint against Read was made with the Virginia State Bar and a disciplinary proceeding ensued. Read s counsel argued that his client had complied with Brady because the information was available to use during trial, and therefore had disclosed all information required by law. In spite of the Board s finding that Read had willfully intended to see the defendant tried without the disclosure that the two witnesses had recanted, the Supreme Court of Virginia agreed that Read had complied with the disciplinary rule, reversed the Disciplinary Board s decision, and entered final judgment that Read had not engaged in any misconduct. Following this decision, the Bar rewrote the relevant rule, replacing the Brady standard with the standard now found in Rule 3.8(d). In light of the conclusion that Rule 3.8(d) requires earlier disclosure than the Brady standard, the Committee next turns to the meaning of timely disclosure. In general, timely is defined as occurring at a suitable or opportune time or coming early or at the right time. Thus, a timely disclosure is one that is made as soon as practicable considering all the facts and circumstances of the case. On the other hand, the duty to make a timely disclosure is violated when a prosecutor intentionally delays making the disclosure or withholds disclosure in order to gain a strategic advantage in the case. The text of the Rule makes clear that a court order is sufficient to delay or excuse disclosure of information that would otherwise have to be turned over to the defendant. Thus, where the disclosure of particular facts at a particular time may jeopardize the investigation or a witness, the prosecutor should immediately seek a protective order or other guidance from the court in order to avoid those potential risks. As specified by the Rule, however, disclosure must be precluded or modified by order of a court (emphasis added) in order for the prosecutor to be excused from disclosure. Because this is not a bright-line rule, the Committee cannot give a definitive answer to the question of whether the prosecutor must immediately turn over the exculpatory evidence at issue in the hypothetical; however, the prosecutor may not withhold the evidence merely because his legal obligations pursuant to Brady have not yet been triggered. The answer to the second question is apparent from the text of the Rule. The Rule requires disclosure of the existence of evidence which the prosecutor knows is exculpatory. Although the death or other unavailability of the prosecutor s primary witness likely does make it less likely that the defendant will be convicted at trial, it is clearly not evidence and thus its disclosure is not required by Rule 3.8(d). This opinion is advisory only based upon the facts as presented, and not binding on any court or tribunal.