DISCOVERY AND EXCULPATORY EVIDENCE I. Introduction In Utah, criminal defendants are generally entitled to broad pretrial discovery. Rule 16 of the Utah Rules of Criminal Procedure provides that upon request the prosecutor shall disclose to the defense written or recorded statements of the defendant or codefendant, the defendant s criminal record, physical evidence seized from the defendant or codefendant, evidence known to the prosecutor that tends to negate or mitigate the guilt of the accused or mitigate the degree of the offense, and any other item of evidence which the court determines on good cause shown should be made available to the defendant in order for the defendant to adequately prepare his defense. Utah R. Crim. P. 16. The federal rules of criminal procedure also provide defendants with broad pretrial discovery. See Fed. R. Crim. P. 16. Notwithstanding clear statutory language on both the state and federal level, some discovery topics require more in-depth discussion. This chapter will discuss (1) the prosecutor s obligation to provide the defense with exculpatory information under the United States Supreme Court s landmark case of Brady v. Maryland, (2) Rule 16, and (3) the defense s obligation to provide discovery. II. Brady v. Maryland In Brady v. Maryland, 373 U.S. 83 (1963), the Court held that the government s suppression of evidence favorable to the accused may be a violation of the accused s due process rights under the 14th Amendment. In Brady, the defendant had been tried and convicted of felony first degree murder. Brady testified at trial that he had participated in the robbery of the victim, but that the codefendant, Boblit, did the actual killing. Prior to the trial, defense counsel had asked the state to allow him to examine Boblit s extrajudicial statements. The state showed him several of those statements, but withheld one in which Boblit admitted to the actual 1
homicide. The Court held that the suppression by the prosecution of evidence favorable to the accused violates the defendant s rights under the due process clause of the 14th Amendment where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Id. at 1196-7. Subsequent cases have defined exculpatory evidence as material if there is a reasonable probability that his conviction or sentence would have been different had these materials been disclosed. Strickler v. Greene, 527 U.S. 263, 296 (1999). A reasonable probability does not mean that the defendant would more likely than not have received a different verdict with the evidence, only that the likelihood of a different result is great enough to undermine confidence in the outcome of the trial. Smith v. Cain, 132 S.Ct. 627 (2012) (internal quotations omitted). So called Brady evidence includes evidence that could allow the defense to impeach the credibility of a prosecution witness where there is little other evidence for the prosecution, see id., and evidence material to credibility of a civilian witness, such as evidence of false statements by the witness or evidence that a witness was paid to act as an informant. Banks v. Dretke, 540 U.S. 668, 694 (2004). The Brady rule applies to situations involve[ing] the discovery, after trial, of information which had been know the prosecution but unknown to the defense. Agurs. Extrapolating from this language, some courts have held that the prosecution does not violate the Constitution when it fails to provide favorable evidence to the defense that is known by the defense. The defense must therefore still exercise diligence and request the favorable evidence known to it. 2
The remedies for a Brady violation may include dismissal with prejudice if the prosecutor's conduct was deliberate or willful. In the absence of such misconduct, the retrial will cure any prejudice resulting from the violation. See U.S. v. Fahie, 419 F.3d 249 (3rd Cir. 2005). The Supreme Court of Utah has embraced Brady and developed a test to determine whether a Brady violation has occurred. In State v. Pinder, 114 P.3d 551, 557 (Utah 2005), the court held that a Brady violation occurs only where the state suppresses information that (1) remains unknown to the defense both before and throughout trial and (2) is material and exculpatory, meaning its disclosure would have created a reasonable probability that the result of the proceeding would have been different. (internal quotations omitted). Applying this standard, Utah courts have held that the State s failure to disclose partial transcript of interviews of key prosecution witness conducted by police sergeant prior to murder trial was sufficient to undermine confidence in defendant s death sentence, and thus constituted Brady violation. Tillman v. State, 128 P.3d 1123 (Utah 2005). A Brady violation did not occur, however, by the state failing to disclose cooperation agreement with its witness. State v. Bisner, 37 P.3d 1073 (Utah 2001). III. Rule of Criminal Procedure 16 1 Rule 16 of the Utah Rules of Criminal Procedure provides for broad pretrial discovery. It states that upon request the prosecutor shall disclose to the defense written or recorded statements of the defendant or codefendant, the defendant s criminal record, physical evidence seized from the defendant or codefendant, evidence known to the prosecutor that tends to negate or mitigate the guilt of the accused or mitigate the degree of the offense, and any other item of 1 This section will only discuss Utah's Criminal Procedure Rule 16 and not the federal rule. 3
evidence which the court determines on good cause shown should be made available to the defendant in order for the defendant to adequately prepare his defense. Utah R. Crim. P. 16. The rule s guarantees to the defendant, however, are only applicable if the defendant requests pretrial discovery. See State v. Martin, 984 P.2d 975, 977 (Utah 1999); see also State v. Booker, 709 P.2d 342, 346 (Utah 1985) (refusing to hear claim that prosecutor failed to provide defendant with pretrial discovery where there was no record that defendant had requested it. Additionally, the Rule does not require the prosecution to provide discovery materials at no cost to defendant. State v. Kearns, 153 P.3d 731 (Utah Ct. App. 2006). Rule 16 also imposes requirements on the accused. It states that a defendant may be required to appear at a lineup, speak for identification, submit to fingerprinting, pose for photographs, try on articles of clothing, permit the taking of samples of blood, hair, fingernail scrapings, and other bodily materials which can be obtained without unreasonable intrusion, provide specimens of handwriting, submit to reasonable physical or medical inspection of his body, and cut hair or allow hair to grow to approximate appearance at the time of the alleged offense. Utah R. Crim. P. 16(h). The defense must additionally disclose information relating to an alibi defense or an insanity defense. Utah R. Crim. P. 16(c). The defense s discover disclosures must be made at least ten days before trial or as soon as practicable. Utah R. Crim. P. 16(d). Remedies for a violation of Rule 16 include (1) discovery or inspection of the evidence, (2) the grant of a continuance, (3) prohibiting the party from introducing the evidence not disclosed, or (4) such other order as the court deems just under the circumstances. Utah R. Crim. P. 16(g). Thus, consistent with the trial court's broad discretion in granting or refusing discovery, the court can craft appropriate remedies for violations of Rule 16. Dismissal for a 4
discovery violation is may be proper, but only when all other attempts to mitigate damage caused by unexpected evidence have failed. State v. Christofferson, 793 P.2d 944, 948 (Utah Ct. App. 1990). IV. Defense s Discovery Obligations As discussed above, Rule 16 requires the defense to disclose evidence related to alibi and insanity. Utah R. Crim. P. 16(c). It also allows for the defendant to submit to physical examinations if necessary. Utah R. Crim. P. 16(h). Aside from these specific requirements, Rule 16 also allows the State to discovery any other item of evidence which the court determines on good cause shown should be made available to the prosecutor in order for the prosecutor to adequately prepare his case. Utah R. Crim. P. 16. In State v. Spry, 21 P.3d 675 (Utah Ct. App. 2001), the court considered whether the State had shown good cause when it requested from the defense the names and testimony of defense witnesses, copies of extra reports, exhibits and investigative reports that would be used at trial. Id. at 676. The court held that good cause requires only a showing that disclosure of requested evidence is necessary to the proper preparation of the defense, and...such a showing is made whenever the trial court is apprised of the fact that the evidence is material to an issued to be raised at trial. Id. at 679 (quoting Cannon v. Keller, 692 P.2d 740 (1984)). Applying this standard, the court concluded that the state had shown good cause that the disclosures were material because they involved information on witnesses and documents which [the] [d]efendant intended to use at trial. Id. Before granting a State s request for discovery, the court must consider any specific privileges asserted by a defendant, including the right against self-incrimination, the attorney work-product doctrine, and the attorney-client privilege. State v. McNearney, 110 P.3d 183, 186 (Utah Ct. App. 2005). 5
Regarding the privilege against self-incrimination, it is important to note that the privilege adheres to the person, not to information that may incriminate him. Id. (quotations omitted). In that respect, it does not violate the defendant s rights if the court compels the discovery of a list of... witnesses Defendant ha[s] a good faith intention to call at trial. Id. Generally, the State may not discover attorney work-product. See id. at 187. However, that privilege may be waived where a defense witness approaches the prosecutor and discloses information that she will testify to at the trial. Id. Taken together, these cases and Rule 16 stand for the proposition that the prosecutor is entitled to discoverable material from the defense if (1) the material does not violate the defendant s constitutional rights, and (2) he can show that the evidence is material to an issue that will be raised at trial. 6