Failure to Disclose Exculpatory Evidence

Under the Fourteenth Amendment’s Due Process Clause, prosecutors must disclose to the defense any information that they posses that if favorable to the defense and material to whether the defendant is guilty or to the proper scope of punishment. Of course, prosecutors don’t always follow this command. Sometimes the problem is inadvertent. Sometimes it is purposeful. Either way, the failure to disclose exculpatory evidence can lead to wrongful convictions, and, more broadly, can undermine confidence in the ability of our criminal justice system to determine guilt and administer punishment.

Relevant Posts on Second Class Justice:

1. Why Won’t the Prosecution Play Fair in New Orleans

Other Recommended Resources:

I. Publications

A. Blogs, Newspapers, Magazines

1. Justice and Prosecutorial Misconduct (Editorial in New York Times published on December 28, 2011).

2.  A Call for Prosecutorial Accountability: New research shows that prosecutors are rarely disciplined when misconduct occurs by Deborah Jane Cooper (published in the National Law Journal on December 28, 2011).

3. Playing Dirty in the Big Easy: New Orleans prosecutors have a checkered history of trying to win-at-all-cost. Now a couple lawyers are trying to hold them accountable by Emily Bazelon (published in Slate on April 18, 2012)

4. Congress Must Act to End Prosecutorial Misconduct by Ginny Sloan (appeared in the Huffington Post Blog on April 11, 2012).

5. Head in Sand Over Prosecutorial Misconduct by Erwin Chemerinsky (published in the National Law Journal on April 25, 2011)

B. Books

1. Prosecution Complex: America’s Race to Convict and Its Impact on the Innocent by Daniel Medwed (New York University Press, 2012) (includes a chapter, “In the Interest of Full Disclosure: Discovery in Criminal Cases”).

C. Scholarly Articles

1. The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct by David Keenan, Deborah Jane Cooper, David Lebowitz and Tamar Lerer. Note: this is a phenomenal student note. Description and media attention–e.g. New York Times, National Law Journal, New Orleans Times Picayune–here.

D. Audio and Video

1. American Bar Association Panel on Prosecutorial Accountability (held in New Orleans in February 2012) (video).

2. Louisiana Capital Assistance Center Director Richard Bourke testifying in Louisiana legislature about HB 1070, a bill that would require the prosecution to turn over evidence that is exculpatory regardless of whether it is also material. (Richard’s testimony begins at 1:38) (video).

E. Other

1. The Special Litigation Division of the  Public Defender Service for the District of Columbia produces a free handbook on Brady v. Maryland (last updated January, 2012). Recommended.

II. Judicial Opinions

A. United States Supreme Court

1. Smith v. Cain, 132 S. Ct. 627 (2012) (reversing the conviction under Brady v. Maryland because, among other things, the prosecution failed to turn over police notes that pertained to the only witness that connected Smith to the crime. The notes conflicted testimony that the police investigator testified to at trial) (opinion) (Scotus Blog coverage, including briefs and oral argument audio / transcript) (New York Times coverage: pre and post decision).

2. Connick v. Thompson, 131 S.Ct. 1350 (2011) (reversing a fourteen million dollar jury verdict for John Thompson, who was wrongfully convicted in New Orleans, Louisiana thanks to a Brady violation. The Court held that the district attorney’s office could not be held liable under section 1983 under a “failure to train” theory when the claim is based on a single Brady violation) (opinion) (Scotus Blog coverage, including briefs and oral argument audio / transcripts).

3. Kyles v. Whitley, 514 U.S. 419 (1995) (reversing a New Orleans, Louisiana conviction and death sentence on Brady grounds. As Don Samuel’s summarizes in his Favorable and Noteworthy Opinions compendium: “Along the way, the Court reviews a number of issues relating to materiality, including:  (1) A showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in acquittal; rather, all that need be shown is a “reasonable probability” of a different result. (2) The question is not whether all the evidence, including the withheld evidence would result in sufficient evidence to convict, or not. The question is whether the excluded evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. (3) Once a showing of constitutional error has been made, there is no need for a “harmless error” analysis. By definition, if the excluded evidence was material under the tests above, the Brady violation could not be harmless. (4) In reviewing the materiality of the withheld evidence, it should be considered cumulatively, not in isolation, item-by-item. (5) It is no excuse that information is known to the police, and withheld from the prosecutor. The prosecutor should adopt procedures which ensure that information known to the police is conveyed to the prosecutor.”) (opinion)

4. Giglio v. United States, 405 U.S. 150 (1972) (prosecution must disclose any deals it has made with witnesses against the defendant) (opinion).

5. Brady v. Maryland, 373 U.S. 83 (1963) (seminal case) (opinion).

6. Napue v. Illinois, 360 U.S. 264, 272 (1959) (prosecution must disclose favorable evidence related to the credibility of witnesses against the accused) (opinion)

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