Legal and Ethical Obligations in Discovery

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1 Legal and Ethical Obligations in Discovery Ellen Yaroshefsky Maurice A. Deane chool of Law Hofstra University National Juvenile Defender Conference ummit Albuquerque, NM October 22, 2017

2 National Perspective There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it. Judge Alex Kozinski 9 th Circuit (dissenting from denial of rehearing en banc) United tates v. Olsen, 737 F. 3d 625, 626 (9 th Cir. 2013)

3 U.. v. Olsen dissent I wish I could say that the prosecutor s unprofessionalism here is the exception, that his propensity for shortcuts and indifference to his ethical and legal responsibilities is a rare blemish and source of embarrassment to an other diligent and scrupulous corps of attorneys staffing prosecutor s offices across the country. But it wouldn t be true. Brady violations have reached epidemic proportions in recent years, and the federal and state reporters bear testament to this unsettling trend.

4 Olsen and its Effect Judge Kozinski cites 28 federal and state-court decisions Cato Institute National Police Misconduct Reporting Project NY Times editorial Innocence Projects Center for Prosecutorial Integrity

5 potlight on Violations Nothing New Bennett Gershman, Prosecutorial Misconduct Treatise 1985 Articles since 1997 Case documentation urveys (notably in Illinois) Yale tudy

6 Case tudies Innocence Project Disclosure Violations in 43 % of exoneration cases Nifong

7 Ted tevens In my almost 25 years on the bench, I have never seen anything like the mishandling and misconduct in this case chulke report Nonlawyers reviewing files Debriefing that did not go well not memorialized Handwritten notes lost or misfiled Prosecutors own notes not reviewed

8 chulke Report Consultation with supervising prosecutors charged with guiding disclosure obligations was perfunctory Gvt took position at trial that agents reports of witness interviews were not prior statements of those interviewed Contempt not viable because no Order

9 Epidemic or Episodic Prosecutors Views Overstated Most unintentional Police and other agencies as primary cause Actual misconduct rare

10 ABA Resolution 100B Misconduct vs. Error Urges trial and appellate courts in criminal cases to differentiate between misconduct and error

11 Framework Lack of Clarity on definitions Brady and other obligations Lack of clarity as to timing of disclosure (Guilty Pleas??) Difficulty of data gathering Hidden problem Different viewpoints of prosecutors and defenders

12 Discovery Obligations Constitutional Obligations Brady v. Maryland,373 U.. 83 (1963) Giglio v. U.., 405 U (1972) U.. v. Bagley, 473 U (1985) Kyles v. Whitley, 514 U (1995)

13 Brady, Brady, Brady Is That All You Ever Think About???

14 Discovery Obligations tatutory Court Rules Ethical Rules 3.8 (d) Ethics Opinion

15 Rule Professional Conduct 3.8(d) 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;

16 Brady v. Maryland Appellate tandard for Reversal Not trial standard for pretrial disclosure Often confused Rule of Fairness

17 Brady v. Maryland Due Process Violation if: Favorable uppressed Material Within actual or constructive knowledge of state

18 U.. v. Agurs 427 U.. 97 (1976) elf Defense in Homicide Case Prosecution failed to disclose victim s criminal record Required to disclose whether or not defense requests it

19 Brady Must be disclosed to defense in timely manner Whether the defense requests it or not Prosecutor s good faith efforts to comply do not shield the state from a Brady violation

20 Giglio v. U U (1972) Failure to disclose promise for leniency from tate of key witness Brady s obligation extends to all prosecutors in the office and office must develop systems to ensure information is disclosed Impeachment evidence affecting the credibility of the witness must be disclosed

21 Giglio reversal Defendant entitled to new trial if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury Deliberate deception of the a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice. mith v. ecr y Dept of Corr F. 3d 1327

22 U.. v Bagley 473 U (1985) Materiality Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the results of the proceeding would have been different. A reasonable probability is a probability to undermine confidence in the outcome.

23 Kyles v. Whitley 514 U (1995) New Orleans Police collected eyewitness descriptions and failed to disclose Prosecutor has affirmative duty to learn of any favorable evidence known to other people and agencies acting on behalf of the government, including the police If not in possession of the tate, no Brady violation Maharaj v. tate, 778 o. 2d 944 (Fla. 2000)

24 Read Kyles Inconsistent descriptions by different witnesses of crime Inconsistent descriptions by different witnesses of criminal ome of witnesses s descriptions matched informant Pending charges against informant Ongoing investigation of informant about other crimes Police informant made inconsistent statements to police

25 Kyles Police had other leads that failed to follow up Witness previously said she did not see the crime Witness s description became more accurate after met with police and prosecutor Witness s prior statement or trial testimony omits significant details or facts Witness or informant made incriminating statements

26 Banks v. Dretke 540 U (2004) tate failed to disclose that key witness was a paid government informant and that another witness testimony was improperly coached. Prosecutor failed to correct testimony at trial. Death entence reversed A rule declaring prosecutor may hide, defendant must seek is not tenable.

27 Material Appellate standard Federal ystem Used pretrial in many jurisdictions tate ystems Vary NDAA says disclose

28 U.. v. Coppa 267 F. 3d 132 (2d Cir. 2001) Timing and Due Process There is no specific rule A prosecutor need only disclose exculpatory and impeaching evidence no later than the point at which a reasonable probability will exist that the outcome would have been different if an earlier disclosure had been made.

29 Florida Cases If defendant knew of evidence or, with reasonable diligence, could have obtained such evidence, no posttrial Brady claim Thompson v. tate, 944 o. 2d 1176 (Fla. 3d DCA 2008) Wickham v. tate, 124 o. 3d 841 (Fla 2013) DO NOT CONFUE THI WITH PRETRIAL OBLIGATION

30 Categories of Defenses Act never occurred (frame-up) Act occurred but ODDI (Alibi) Act occurred but not a crime (self-defense) Act occurred but not crime charged (lesser included) Act occurred but not legally responsible

31 Favorable Not Only Exculpatory Any information that might lead jury to conclude defendant should be found not guilty of any crime charged

32 Types of Favorable Information Prior Inconsistent tatement Prosecution Witness Informant Including at Proffer ession

33 Impeaching Inconsistent with testimony of a tate s witness Inconsistent with other prior statements of tate s witness tatement omitting fact witness later told Prosecutor or subject of testimony

34 Favorable Information Criminal History Prior Misconduct Prosecution Witness or Informant Includes antisocial behavior that may alter case texture and focus

35 Favorable Information Benefits Offered, Held Out, Promised or Provided Including Overt or Tacit Leniency Deal Information of Possible Bias, Interest, Hostility, or Reason to Fabricate

36 Favorable Information Tends to undercut Core Believability of Witness or Informant erious and possibly pertinent Perception Problem or Psychiatric Condition Alcohol or Drug Abuse Problem

37 Favorable Information to Undercut Proof of An Element of a Charged Offense Otherwise tends to negate guilt Information that Affirmatively upports A Defense or Buttresses a Likely Defense

38 Favorable Information that Provides a Basis for Alternate Defense trategies (of That Relates to a Defense Theory Different from That Which Has Been Announced or is Being Pursued

39 Brady Applies To: Information That Only Affects the Credibility of a Witness Exculpatory and Impeaching May Mean the ame to the Defense

40 Favorable Information to Undercut Prosecution s Theory of Defendant s Motive or That Which uggests Absence of Motive

41 Favorable Information Related to Arguably Deficient or Unreliable Police Investigation of Potentially Important Evidence

42 Mitigate entence Anything that supports any argument you are permitted to make at sentence in support of a less-than-maximum sentence Anything the courts have held to be a mitigating factor at sentencing

43 Brady Applies Even when the information comes from or relates to a Non testifying person or Hearsay declarant

44 Brady Applies To Information that is itself inadmissible WHEN It could lead to Admissible Evidence or be of Value on Cross Examination

45 Brady Applies To Information that Could Affect a uppression Ruling

46 Ongoing Duty Information May Become Material Based on Developments Before and During the Trial

47 Brady Applies Applies Equally to Non-Memorialized (Only Oral or Non-Tangible) Information Heard by Law Enforcement

48 Brady-Prosecution Control The Favorable Evidence Must Be Within the Prosecution s Control or Actual Possession

49 Prosecution Control Affirmative Duty to Learn of information known to other agencies If in possession of police in constructive possession of prosecutor Obligation to learn about background, criminal record, other information about key witness (prison record)

50 Prosecution Control If agency is not an investigative arm of the prosecution or did not participate in the investigation no duty Prosecution not charged with knowledge of materials in possession of state police U v. Beers, 189 F. 3d 1297 (10 th Cir. 1999) Even though joint task force, prosecution not responsible for evidence by investigative agencies of other states Moreno-Morales v. U.., 334 F (1 st Cir. 2003)

51 Forensics and Prosecution Control Toxicologist not clearly member of prosecution team argent v. ecr y Florida Dep t of Corr. 480 F. App x 523, 530 (11 th Cir. 2012) (cert denied..) Crime lab chemist ame result mith v. Massey, 235 F. 3d 1259, 1272 (10 th Cir. 2000)(overruled on other grounds)

52 Brady/Kyles Applies The Prosecution s Good Faith or Ignorance of Information Known to the Police is Irrelevant

53 Public Records Law tate required to disclose document within its possession or to which it has access even if such document is not subject to public records law Walton v. Dugger, 634 o. 2d 1059 (Fla. 1994) Guillen v. tate, 589 o. 2d 345 (Fla. 1 st DCA 1991) (Due process violation for failure to provide FDLE report regarding whether pistol met statutory definition of firearm)

54 Brady/Kyles Duty Applies Even when the Prosecutor Doubts the Reliability of the Information Witness Recantation tatements

55 Brady Analysis Is not whether the Prosecution can Reconcile the Information with Their Other Proof Or Whether it Refutes Their Theory INTEAD How the information can be used by the Defense and Viewed by the Jury

56 Youngblood v. West Virginia 126. Ct (2006) Brady/Kyles Issues Impeachment material must be disclosed even if it does not go directly to innocence If police know about exculpatory information (including impeachment) it is considered in the possession of the prosecution even if police never told the prosecutor Reaffirms prosecution duty to seek out information of anyone acting on government s behalf

57 Brady-Police Investigation Any material that helps the defense attack the reliability, thoroughness, or good faith of the police investigation

58 Brady In Camera Judge Must Conduct In Camera Inspection Whenever the Defense Identifies ome Basis for Believing that it is discoverable

59 Post-Conviction Disclosure how all 4 elements: Favorable, uppressed by tate Material (resulted in prejudice) Defendant did not possess nor could obtain

60 Timing Must be Early Enough to Have a Meaningful Opportunity to Use It and Investigate It Differs if Giglio witness

61 Prior to Guilty Plea U.. v. Ruiz, 536 U (2002) Exculpatory v. Impeachment No obligation to disclose impeachment

62 Prior to Guilty Plea Robbery case- one witness ID case tate v. Johnson, 544 o. 2d 767 (La. Ct. App 1989)

63 Forensic Disclosure Proper Preservation, Cataloging and Retention of all Forensic Evidence Technology used to preserve and store (bar coded) Florida preserves through the term of incarceration

64 Forensic Laboratories Certifications Training of lab technicians tandards, Qualifications

65 Types of Forensics DNA low copy and FT Toolmarks Cell Tower Fingerprints Bitemarks Handwriting

66 tingray Cell site simulator IMI catcher Digital analyzer Cell site emulation Triggerfish, kingfish, hailstorm, WITT (FBI Wireless Intercept Tracking Team)

67 Misleading tatements Prosecutor s Misleading tatements About Brady/Kyles Material May Violate Due Process

68 Duty to Correct Prosecutor s Duty to Correct False Testimony False Impressions or Insinuation

69 Rule Prof. Conduct 3.3 (a) A lawyer shall not knowingly: (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

70 Rule Prof. Conduct 3.3 (c ) (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6

71 Duty to Inquire Prosecutor May not Refrain from Learning About and/or Obtaining Readily Available Brady information

72 Favorable--Forensics cientific Tests or Experiments Lack of Inculpatory Tests Lab Protocol Issues

73 Appellate tandard If Defense Knows of hould Know of the Existence of the Information: Prosecution Not Required to Disclose

74 ABA Ethics Op (2009) Rule 3.8(d) of the Model Rules of Professional Conduct requires a prosecutor to 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, [to] disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor..

75 Use Ethics Rules in Demands Rule 3.8 (d) ABA Op ABA tandards for the Prosecution and Defense Function

76 Ethics Op (cont d) Rule 3.8(d) requires a prosecutor who knows of evidence and information favorable to the defense of disclose it as soon as reasonably practicable so that the defense can make meaningful use of it in making such decisions as whether to plead guilty and how to conduct its investigation

77 Prosecutors are not further obligated to conduct searches or investigations for favorable evidence and information of which they are unaware. In connection with sentencing proceedings, prosecutors must disclose known evidence and information that might lead to a more lenient sentence unless the evidence or information is privileged. upervisory personnel in a prosecutor s office must take reasonable steps under Rule 5.1 to ensure that all lawyers in the office comply with their disclosure obligation

78 Disclosure Demands pecificity Follow up and make more demands Demands in writing Demands throughout trial Create a record and get response and court ruling on the record Witness availability (alive, in jurisdiction)

79 Disclosure Demands Based on extensive debriefing of client and witnesses Mine social media and other internet resources trategic considerations tipping your hand

80 entencing Don t forget mitigate punishment Cone v. Bell,556 U.. 449, 475 (2009) Information that casts doubt on drug quantity, financial loss, role in crime, acceptance of responsibility, unwarranted sentencing disparities Impeachment material benefits sought and received for victims

81 Forensic Disclosure Demands Learn the science Learn the labs Learn lab accreditation process Request raw data, bench notes, untested physical evidence

82 U DOJ Critical role of prosecution team in collecting, memorializing and reviewing evidence DOJ process for preserving information road map Files reviewed for Brady information Identities of who conducted review Dates of debriefing, note taker identity Certify efforts to identify and comply with Brady

83 Brady Violation Disclosed If before or during trial, Richardson hearing to determine if willful, inadvertent, prejudicial and consequences Richardson v. tate, 245 o.2d 771 (Fla. 1971).

84 Imbler v. Pachtman 424 U (1976) Ongoing Constitutional Obligation Post-conviction

85 Post-Conviction Disclosure how all 4 elements: Favorable, uppressed by tate Material (resulted in prejudice) Defendant did not possess nor could obtain

86 Rule Prof. Conduct 3.8 (g_ (g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:

87 (1) promptly disclose that evidence to an appropriate court or authority, and (2) if the conviction was obtained in the prosecutor s jurisdiction, (i) promptly disclose that evidence to the defendant unless a court authorizes delay, and (ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.

88 h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

89 Why Do Brady Violations Occur?? Unintentional Intentional Mixed

90 Cognitive Biases Tunnel Vision Confirmation Bias elective Information Processing Avoid Cognitive Dissonance All human decision makers share a common set of information-processing tendencies that depart from perfect rationality

91 Passes

92 Common Claims and Refutation The police never told me about it The statement was not in writing Information not introduced at trial Harmless error (A Brady violation is not harmless because, by definition, it affected the outcome) Would not have resulted in acquittal

93 Why Violations Occur Pressure to Violate the Law Lack of Effective Deterrents Internal Discipline for individuals Disciplinary Committees Judiciary Civil Liability Minimal Organizational Discipline

94 ABA Resolution 105D Urges federal, state, territorial and tribal governments to adopt disclosure rules requiring the prosecution to seek from its agents and to timely disclose to the defense before the commencement of trial all information known to the prosecution that tends to negate the guilt of the accused, mitigate the offense charged or sentence, or impeach the prosecution s witnesses or evidence, except when relieved of this responsibility by a protective order

95 ABA Resolution 105 D (cont d) Urges.to adopt disclosure rules requiring the prosecution to make timely disclosure to the defense before a guilty plea of all information, which may include impeachment evidence, known to the prosecution that tends to negate the guilt of the accused or mitigate the offense charged or sentence, except when relieved of this responsibility by a protective order,.

96 ABA tandards Prosecution and Defense Function Recent revisions 2014 Cited by COTU more than 50 times

97 ABA Prosecution Function td Timely disclosure..earliest feasible opportunity td 3-3.9( (a) Prosecutor should not intentionally avoid pursuit of evidence because he or she believes it will damage the prosecution s case or aid the accused td (c )

98 Remedies Open File Open File Discovery What is in the file? Computerize operations of police and other agencies

99 Michael Morton Ken Anderson Diligent Defense Counsel Michael Morton Act

100 Cameron Todd Willingham EXECUTED Junk cience--arson Evidence Failed to disclose letter from Webb jailhouse snitch DA Jackson went to court and got charges reduced to robbery

101 New Rules Informants Bright Line Rules on Dealing with Informants Courts should require disclosure whenever case has informant Extent of contact Past contacts and involvement in cases Inducements no unspoken deals

102 Judicial anctions Judicial Pretrial Conferences Ethical Order anctions Hearings Report to Disciplinary Committees Appellate Opinions Naming Prosecutor

103 Data Gathering Look at 1300 Exonerations Prospective Practices Reexamine reversals and other errors or misconduct Veritas Initiative NACDL tudy

104 Prosecutor Offices Manual Written tandards Transparency Matters Concept endorsed by ABA and National District Attorneys Association (NDAA)

105 UDOJ National Discovery Coordinator January Ogden Memo-gathering and reviewing potentially discoverable information and timely production Blue Book Law enforcement tool for agency coordination Practice notes, Caveats, trategic and Logistical Concerns, Practical Considerations Individual Offices have Policies

106 Prosecutor Office Training Programs not enough upervision not enough Checklists Random Audits

107 ABA Formal Op. 467 (2014) Prosecutors as Managers and upervisors Rule 5.1 and 5.3 Reasonable efforts to ensure organization has measures to give reasonable assurance that lawyers conform to the Rules of Professional Conduct Duty to avoid or mitigate consequences of improper conduct reasonable remedial action Cites New Orleans and Oklahoma examples

108 Culture How to change it? Lawyers as managers top Culture of Blame Beyond Winning Leadership Training upervision Audits

109 Lessons from Organizational Psychology Lawyers- Caliper Profile Lawyers as outliers

110 Caliper Profile kepticism Autonomy Urgency ociability Abstract Reasoning REILIENCE

111 Connick v. Thompson 131. Ct (2011) Blood swatch tested Different from John Thompson Tested, not disclosed, missing from case file 42 UC 1983 Deliberate Indifference to Need to Train on Brady Failure to Train theory requires pattern of similar inaction was functional equivalent of a decision by the city itself to violated the Constitution

112 Judicial Remedies Case pecific Instruction to Jury Reversal entencing Reduction pecific To Individual Prosecutor Naming Discipline-Mandatory Reporting to Disciplinary Committee anctions Internal Office Remedies

113 Judicial Remedies Ethical Orders Pretrial Conferences Hearings (Richardson) Referrals to Disciplinary Committees anctions Annual Accounting by Court of Brady violations and referrals Develop Case Law Limiting Prosecutorial Immunity

114 Pretrial Conference In camera review of police officer file Need plausible showing that court should be gatekeeper U.. v. Nogbou, 2007 WL (DNY Nov, 19, 2007)

115 Legislative Remedies Expand Cause of Action and Damages for Civil Rights Violations Limit prosecutorial immunity Economic compensation when judicial determination of Brady violation Qui tam-like action (reward for whistleblower)

116 Proposed olutions Internal Policies, practices, Conviction Integrity Units Legislation Increase Civil Liability Open File Discovery Disciplinary Committees tate Commission Inspector General Model

117 Administrative Law Change Model Greater transparency Treat like any other large entity Different person reviewing discovery than trial lawyers

ADVOCATE MODEL RULE 3.1

ADVOCATE MODEL RULE 3.1 1 RULE 3.1 - MERITORIOUS CLAIMS AND CONTENTIONS (a) A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and