JOE CLEARY & MONICA FOSTER JULY 2014

Brady, Jencks & Rule 16

Rule 16 Upon request, requires disclosure of:

• D’s stmt, whether oral, written or recorded

• D’s prior record

• Docs & objects relevant to defense or to be used by G in case in chief

• Items obtained from or belonging to D

• Reports of examinations & tests

• Written summary of expert testimony

Jencks Act 18 USC §3500

• Stmts & reports of G witnesses need not be produced until after W testifies

• Prior stmts of Ws will be ordered produced on request of D after the W testifies if the testimony relates to the subject matter of stmt

Brady v. Maryland, 373 U.S. 83, 87 (1963)

“The suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or punishment.”

What is “material” evidence?

• Suppressed evidence is “material” if it reasonably undermines confidence in the outcome of the trial

– Need not show by preponderance that undisclosed evidence would have produced different result

– Not sufficiency of the evidence

– Merely a “reasonable probability” of a different result – does it “undermine confidence”?

• Kyles v. Whitley, 514 U.S. 419 (1995)

USA v. Bagley, 473 US 667 (1985)

Favorable evidence includes impeachment evidence

There is Brady in every case

David Hammer v. USA

• 2 go in; 1 comes out

• D confesses to FBI

• D confesses to cellmates

• D pleads guilty during trial

• D waives direct appeal arguing pro se to CA3 that he is guilty & DP must be administered quickly to be effective

G. Paul Howes, AUSA

• Misuse of witness vouchers in handling murder cases

• Concealment of improper payments

• Falsely assured judges and defense lawyers that all voucher payments had been disclosed

Senator Ted Stevens

• AUSA’s intentionally concealed exculpatory evidence, including prior inconsistent statements of their “star witness”

• Stevens loses reelection due largely to conviction and is killed in plane accident before he is exonerated

Bickel

Are we getting everything we are entitled to receive?

• Prosecutors frequently do not know what they have

• Prosecutors frequently do not know the law in this area

• It does not matter what the reason is for nondisclosure

Prosecutor is responsible for what the police know, even if prosecutor

personally is unaware

• “[T]he individual prosecutor has a duty to learn of favorable evidence known to others, including police.” Strickler v. Greene, 527 U.S. 263, 281 (1999)

• Suppressed evidence is assessed collectively, not item by item

• Must be assessed by the best use competent counsel could make of the evidence

Fertile areas for mining Brady claims

• Money or other consideration given to snitches

• Criminal histories of government witnesses

• Statements inconsistent with trial testimony (multiple proffer sessions?)

• Witnesses who were listed but not called

• Expert credentials

• Crime lab issues

• And a million other things

How do we discover Brady violations?

Making suppressed evidence material

Making suppressed evidence material

• Continue to investigate: suppressed evidence must be assessed in the best light competent counsel could have made of it at trial

• What witnesses and themes are spawned from discovery of suppressed material?

• Be willing to reassess your case & defense(s) in light of recently disclosed evidence

Making a Record

Making a record

• Must set forth the evidence that was late discovered/suppressed

• Must explain why it is exculpatory

• Must ask for a continuance if it is late discovered

• Must explain why the continuance the court has in mind is not adequate

• If possible, present evidence to demonstrate late discovery/suppression is a pattern.

• Expert testimony?

Brainstorm with your team & other lawyers!