Saturday, March 26, 2011

Brady v Maryland - Outline of leading cases applying Brady rule

BRADY OUTLINE (March 23, 2011)

by Jill Paperno, Special Assistant Monroe County Public Defender

BRADY V. MARYLAND, 373 U.S.83 – Turnover of information is a requirement of 14th Amendment due process “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” nb – Court did not say it had to be exculpatory, though DA’s will make the claim it does.

KYLES V. WHITLEY, 514 U.S. 419 – From the case syllabus: “…(F)avorable evidence is material, and constitutional error results from its suppression by the government, if there is a “reasonable probability” that, had the evidence been disclosed to the defense, the result of the proceeding would have been different…One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict…(T)he state's disclosure obligation turns on the cumulative effect of all suppressed evidence favorable to the defense, not on the evidence considered item by item. (cites omitted). Thus, the prosecutor, who alone can know what is undisclosed, must be assigned the responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of “reasonable probability” is reached. Moreover, that responsibility remains regardless of any failure by the police to bring favorable evidence to the prosecutor's attention. To hold otherwise would amount to a serious change of course from the Brady line of cases.”

PEOPLE V. BRYCE 88 NY2d 124 – (Failure to preserve and turn over significant exculpatory forensic evidence) “Under the New York rule, if a general demand has been made, evidence will be deemed material if there is a reasonable probability that had it been disclosed to the defense, the result would have been different-i.e., a probability sufficient to undermine the court's confidence in the outcome of the trial (cites omitted). The rule applies regardless of the good or bad faith of the prosecutor, for its purpose is not to punish misconduct but to insure that the accused receives a fair trial (cites omitted).” “Notably, in rejecting defendant's claim of prejudice at that time, the Appellate Division stated that defendant had made no claim the evidence was exculpatory (174 A.D.2d at 947, 571 N.Y.S.2d 638, supra ). Indeed, defendant could not have made such a claim before seeing the skull.”

PEOPLE V. BAXLEY 84 NY2d 208 – (Failure of prosecutor to turn over prior statement of informant stating other informant witness was induced to falsely testify by promise of leniency) “A prosecutor's duty of disclosing exculpatory material extends to disclosure of evidence impeaching the credibility of a prosecution witness whose testimony may be determinative of guilt or innocence (cites omitted). Clearly, Washington (a witness who was described by witness Youman as having given a false statement) was such a witness at defendant's trial, and nondisclosure cannot be excused merely because the trial prosecutor genuinely disbelieved Youmans' recantation. The “good faith” of a prosecutor is not a valid excuse for nondisclosure ( Giglio v. United States, supra ).”

PEOPLE V. CWIKLA 46 NY2d 434 – (Prosecutor’s failure confirm correspondence in support of informant’s application for parole) “A prosecutor is under a duty to disclose to defense counsel correspondence between the office of the District Attorney and the Parole Board advising of the co-operation of a principal prosecution witness in the trial of the witness' accomplices and expressing the hope that such co-operation will be taken into account when the witness is considered for parole.”
“It is fundamental that material evidence which is in the possession of the prosecution and which is exculpatory in nature must be turned over to the defendant in order to give meaning to the constitutional right to a fair trial (citing Brady) It is equally true that “(w)hen the ‘reliability of a given witness may well be determinative of guilt or innocence’, nondisclosure of evidence affecting credibility falls within this general rule.” (cites omitted) The existence of an agreement between the prosecution and a witness, made to induce the testimony of the witness, is evidence which must be disclosed under Brady principles (cites omitted).”

PEOPLE V. DOSHI 93 NY2d 499 - (Not Brady violation when prosecution did not turn over billing records defendant generated) “The Brady doctrine requires prosecutors to turn over material exculpatory to defendants (cite omitted). Brady does not, however, require prosecutors to supply a defendant with evidence when the defendant knew of, or should reasonably have known of, the evidence and its exculpatory nature (cite omitted).”

PEOPLE V. HUNTER 11 NY3d 1 - (Prosecution failed to disclose complainant had accused another man of date rape before defendant’s trial in which he was accused of date rape) “If the information known to the People when this case was tried was ‘favorable to [the] accused’ and ‘material’ within the meaning of Brady, defendant had a due process right to obtain it, and that right could not be nullified by post-trial events.” nb – court considers possibility that this evidence would have been admissible in discretion of trial court.

PEOPLE V. SANTORELLI, 95 N.Y.2d 412 – (Good language, bad decision – failure to turn over federal records not in possession of prosecutor not Brady violation.) “A prosecutor must ‘learn of any favorable evidence known to the others acting on the government's behalf in the case’ and promptly disclose any such material evidence to the defendant (cites omitted)….Thus, this Court has charged the People with knowledge of exculpatory information in the possession of the local police, notwithstanding the trial prosecutor's own lack of knowledge ( see, People v. Wright, 86 N.Y.2d 591, 598, 635 N.Y.S.2d 136, 658 N.E.2d 1009; see also, People v. Novoa, 70 N.Y.2d 490, 498, 522 N.Y.S.2d 504, 517 N.E.2d 219 [prosecutor was delinquent in failing to ‘discover and disclose’ terms of cooperation agreement entered into between a trial witness and Special Prosecutor] ). The duty to disclose information in these circumstances, of course, cannot be greater than the power to acquire it.”

PEOPLE V. STEADMAN 82 NY2d 1 – (DA fails to disclose deal made by other prosecutor in the office for leniency to cooperating informant.) “The prosecutor's duty is not lessened because Brady material may affect only the credibility of a government witness. Indeed, we have held explicitly that the duty includes promises of leniency given to the witness in exchange for favorable testimony against an accused (cites omitted). Moreover, the prosecutor's duty extends to correcting mistakes or falsehoods by a witness whose testimony on the subject is inaccurate (cite omitted)… In the final analysis, however, it does not matter whether the trial assistants were genuinely unaware of the arrangement or not. A prosecutor's obligations to correct false testimony given by prosecution witnesses and to disclose Brady material are duties exercised by individual prosecutors and shared by the prosecutor's office as a whole. Promises made to a defendant by one prosecutor are generally binding on others in the criminal law enforcement system and certainly promises made by a superior are binding on subordinates in the same office.”

PEOPLE V. VALENTIN 1 AD 3d 982, Fourth Dept. 2003 – “The criminal record of a prosecution witness constitutes exculpatory material within the meaning of Brady (cites omitted). That rule accords with the principle that the People's disclosure obligations under Brady extend beyond matters that tend to establish defendant's innocence and include material evidence that impeaches ‘the credibility of a prosecution witness whose testimony may be determinative of guilt or innocence’ (cites omitted)…It is not determinative that the prosecutor denied any contemporaneous actual knowledge of the eyewitness's criminal convictions as a consequence of his self-professed standard practice of not checking into such matters. ‘The requirement that the Brady material be in the People's possession or control * * * has not been interpreted narrowly’ (cites omitted) “A prosecutor must ‘learn of any favorable evidence known to the others acting on the government's behalf in the case’ and promptly disclose any such material evidence to the defendant” (cites omitted). Here, the criminal record of the eyewitness was readily available to the prosecutor and certainly known to other individuals in his office who recently had prosecuted the eyewitness (cite omitted). We nonetheless conclude under the circumstances of this case, in which there was no specific request for the exculpatory material in question, that there is no “reasonable probability” that the verdict would have been different had the material been disclosed to the defense and presented to the trier of fact (cites omitted). (But note – a federal habe was granted in this case. See Valentin v. Mazzuca, 2011 WL 65759, in which U.S. Magistrate Judge Bianchini says the DAs cannot be ostriches and other wonderful things.

PEOPLE V. VILARDI, 76 NY 2D 67 – (Failure of prosecutor to turn over exculpatory report of arson investigator) Court reviews history of Brady and its progeny at Federal level, and finds New York grants greater protection to defendants if there is a specific request for Brady material. “We agree with the Appellate Division that a showing of a ‘reasonable possibility’ that the failure to disclose the exculpatory report contributed to the verdict remains the appropriate standard to measure materiality, where the prosecutor was made aware by a specific discovery request that defendant considered the material important to the defense.”

PEOPLE V. WRIGHT 86 NY2d 592 – (Failure to inform defense that complainant was a police informant in assault case in which officers’ testimony differed pre-trial and at trial was violation.)“This case presents the question whether the People's failure to inform the defendant that the complainant had previously operated as an informant for the local police department violated defendant's right to due process. We conclude that the People were required to disclose this information pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 and therefore reverse defendant's conviction.” “Had defendant been armed with the knowledge that Washington was an informant for the same police department that employed Keane and Walczak, she could have presented the jury with a motive for them to favor Washington. Like evidence tending to affect credibility, evidence establishing such a motive for prosecution witnesses to corroborate the complainant falls within the ambit of the Brady rule ( see, Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104, supra; People v. Novoa, 70 N.Y.2d 490, 496, 522 N.Y.S.2d 504, 517 “

***Use the above cases to support your argument that Brady applies for trial and sentencing, that the DA cannot avoid the information or choose not to turn it over because they don’t believe it, it includes evidence going to the reliability and credibility of witnesses as well as other conduct (See Hunter) such as priors and cooperation agreements (and even agreements to put in a good word – See Cwikla- but if you knew or should have known about it it may not be a violation. A specific request is also better than a general request. Requests must be made on the record for an appellate court to be aware of them.

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