Sunday, July 12, 2009

What Is Exculpatory Evidence & When Must It Be Given To The Defense

My recent trial opened my eyes on several levels, the first being that some people do not understand what exculpatory evidence is. It is not quite what you think by definition of the word. In fact, it was interpreted by a Supreme Court case - Brady v. Maryland (which is why many people call exculpatory evidence simply "Brady").

Prosecutor 4 on the case was the first to interview the complainant (to my knowledge.) Before our motions hearing (in which I request evidence & additional hearings outside the presence of the jury), prosecutor 4 & I discussed Brady. He said that conflicts between what the complainant said on the video & what she said to him, if there were conflicts, is not Brady. This is WRONG. In fact, this is the kind of stuff that not guilty verdicts are made of! It impeaches the complainant to tell a different story. (Now, I know that many are thinking little kid - can't remember details. I won't get into that right now but this was an 18 year old whose outrageous claims were during the time period from when she was 14 - 16, depending upon on which story one relied.)

I had the judge admonish prosecutor 4 that conflicts WERE Brady & were to be turned over. His response to me was that he would have to re-watch the video. The case was set for trial and on the trial docket for 2 weeks before the court reset the case. I never heard anything about any Brady information from prosecutor 4 (who later got into trouble for violating Batson - but that's not my case).

Jump ahead three months to prosecutor 5 at the second trial setting. I hear nothing from him despite a couple of requests for Brady. Finally, on the first day of trial, he discloses a conflict that the complainant told him about. What the hell?! Apparently, according to prosecutor 5, it is the same as what she told prosecutor 4.

Now, I was able to use the information but you know, the rules are there to protect the accused. I'm sorry if some don't like that, but it is the law. It is the Constitution. What if it affected my trial strategy?! Moreover, prosecutor 4 had already been admonished (which is RIDICULOUS - as a felony prosecutor he should know the law & the rules. This person is putting people in prison left & right!)

More on this trial but the bottom line gripe, as a division chief in the prosecutor's office told me after I discussed this, and other problems with the trial, is when you think it MIGHT be Brady, turn it over - IMMEDIATELY. Don't you guys see all these DNA not guilty people whose cases are being overturned?! Does anyone give a damn that years of their lives were WASTED in prison?!

If it MIGHT be Brady - disclose it. Yes, you might get it shoved up your nose at trial but that is okay - isn't it? Don't you want justice? Don't you want the truth? Do you REALLY want to put an innocent person in prison? Why would you take that chance?

BTW, I've heard that everyone now has to read the District Attorney's Association book on Brady - what it is & when to disclose it. Shame especially that at a felony stage this is not already known, but at least some of the uppers are concerned enough to take action.

(Also note - this issue does not apply to all prosecutors. Many are quite diligent about turning things over. But, as we learn from the paper every day, some not only turn stuff over late, some cover & hide stuff. Get real. This is just your job, but this is the life of not only the accused but also an entire family - in this case. A family that could have healed much easier, much quicker, if the case had been dismissed - the right thing to do.)

More later.


  1. Cynthia,

    Without a doubt I missed the beginning of this story so I'm not sure which trial you're speaking of. How may I find the start?

  2. Wait. How do I get a copy of the "District Attorney's Association book on Brady - what it is & when to disclose it"? I want it. If it's any good, I've got bunches of prosecutors who need a copy.

    Years ago, we talked about offering a CLE for prosecutors in recognizing Brady. Why, because too many of them actually believe what I've heard from one in court, "I didn't believe this guy's confession, so it wasn't Brady."

    I mean, it's not just that they misunderstand "exculpatory," which isn't the test anyway. The test is "favorable to the defense on guilt or punishment." It's that they wouldn't recognize Brady material if it jumped up and bit them on the ass.

  3. @ Anonymous. The blogspot before this one was just about jury selection. This is the first about the trial. Sorry it must be confusing. (Why would you post such a question as anonymous? Things that make you go hmmmmmmm.)

  4. @ Jeff Gamso - you can order the books from their website ( or buy them at most bookstores that sell law school books.

    And, I totally agree with your assessment of what many of them understand Brady to be. You would think they would know, without additional training, that if it conflicts with what the complainant said before, then it should be turned over. It never ceases to amaze. I heard they just had prosecutors actually hide evidence in CCCL 1 yesterday. This is hearsay but the skinny is that they not only did not disclose a fact, but when they provided the offense report, they actually did not provide the page that had the particular fact in it. That sounds like it should be a crime - even if is not (which is arguable.)

    Thanks for posting guys & gals.

  5. Good stuff, do you know of any case law where a dismissal was granted prior to trial and the only evidence was brady recantation?

  6. @anonymous - I know of no pre-trial case dismissals. Of course, there would be no "case" on appeal because it is the DAs who decide whether or not to dismiss the case. I also can tell you that in the case of destruction of evidence, one has to PROVE that the evidence would have been exculpatory - which is impossible because it no long exists.


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