Brady v. Maryland and Undisclosed Impeachment Evidence

Statutorily Protected Confidential Records and Potential Brady Material

A prosecutor has a duty under Brady v. Maryland to specifically inform defense counsel of the existence of records and/or reports which contain potentially impeaching information.  The fact that such records and/or reports are made confidential by statute does not take precedence over the fact that they contain potentially impeaching information and are thus discoverable.

Nineteen-year-old defendant Brandon Stewart was alleged to have forcibly raped and digitally penetrated 15-year-old Doe 1; his cousin.  Originally, it was also alleged that he sexually assaulted 11-year old Doe 2.  However, Doe 2’s allegations were dropped from the complaint although she still testified against defendant as Evidence Code § 1108 character evidence (see below).  Doe 1 testified that on the November 25th, 2016, she, defendant, and her sister (Aaliyah), were all sitting together watching television in Doe 1’s home, in Oakland, California.  Surreptitiously, defendant started rubbing Doe 1’s thigh, prompting her to move away from him.  Aaliyah got up to go to the bathroom at some point at which time defendant started rubbing Doe 1’s thigh again.  The rubbing eventually led to him digitally penetrating her.  Despite her resistance, defendant was able to move her on to his lap, penetrating both her vagina and then her anus with his penis.  Doe 1 was finally able to get away from him and go to her bedroom.  Defendant followed her while urging her to submit, not stopping until Aaliyah finally came out of the bathroom.  Doe 1 testified that she did not initially tell her mother or sister about the incident because she was afraid of how they might react and whether they would believe her.  But it was noticed by everyone that her personality changed as she began to “act out,” getting into trouble at school.  Finally, five days later, after being sent home early from school, Doe 1 told her mother what had happened.  Her mother took her to the hospital and the police were called.  Although the initial interview was relatively unproductive, a subsequent SART exam revealed “significant traumatic injuries” to Doe 1’s genital area that were consistent with “some type of penetration that stretched the hymen and tore it.” It appeared that the injuries had occurred recently.  This was all followed up with an interview at the “Child Abuse, Listening, Interviewing, and Coordination” (“CALICO”) center where staff trained in forensic interviews of sexual assault and child abuse victims conducted a detailed interview.  Everyone involved in these various contacts with Doe 1 eventually testified at defendant’s trial.  Doe 2 also testified, but only under the provisions of Evidence Code § 1108 which allows for evidence of a defendant’s character. (E.C. § 1108 provides an exception to the general rule of E.C. § 1101 that evidence of a person's character, including in the form of specific instances of conduct, is inadmissible to show the person has a propensity to engage in certain behavior.  Under § 1108, in a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by § 1101.)  Doe 2 was also a cousin of the defendant’s, but from the opposite side of the family, and did not personally know Doe 1.  Doe 2 testified that defendant sodomized her and forced her to orally copulate him when she was 11 years old.  Three years later, when Doe 2 was 14, defendant molested her again by reaching under her shirt, inside her bra, grabbing her breast and sucking on it, stopping only when she started to cry.  Doe 2 didn’t tell her mother what had happened until some months later, at which time it was reported to the police.  But because of certain inconsistencies in her account as to what defendant had done (see below), the prosecutor chose to use Doe 2’s testimony as character evidence only, not alleging these acts as separate counts on the complaint.  Defendant, tried as an adult, testified at his trial.  He denied molesting either Doe 1 or Doe 2.  He was found guilty and sentenced to prison for 13 years, precipitating this appeal.

The First District Court of Appeal (Div. 2) reversed.  On appeal, defendant argued that he was deprived of his right to a fair trial because he had been denied access to certain information relative to Doe 2’s credibility; a violation of Brady v. Maryland (1963) 373 U.S. 83.  The specific issue was whether the prosecutor had illegally withheld impeachment information pertaining to Doe 2’s credibility.  The Appellate Court held that defendant was correct in these assertions, necessitating this reversal.  In the initial discovery provided to the defense was an investigator’s notes indicating that in 2012, Doe 2—when she was 11 years old—had been the victim of a child molest by someone other than defendant.  Per the notes, the matter had been thoroughly investigated (including a CALICO center interview) and turned over to “Juvenile Authority,” but that the case was then “(c)losed 11/27/12.”  The notes also indicated that there was an Oakland Police Department (OPD) report regarding the same matter.  A copy of that OPD was in the prosecutor’s possession but not given to the defense.  Some of the details of Doe 2’s allegations were described in the notes given to the defense. However, the prosecutor did not inform defense counsel that the OPD report contained potential Brady (impeachment) material. Separate from Doe 2’s 2012 case, the original complaint in this new case alleged Doe 2’s allegations that defendant had also molested her.  However, these charges were excised from the complaint prior to defendant’s preliminary examination (inferring, perhaps, the prosecutor’s concerns over Doe 2’s credibility), leaving only the counts as they related to Doe 1.  Only Doe 1 testified at the prelim; her testimony resulting in an information being filed that contained only the three charges on which he was ultimately tried.  Pretrial in limine motions and jury selection occurred from May into early June, 2018.  Among the motions litigated pretrial were the People’s motion to allow Doe 2 to testify as a propensity witness under Evidence Code section 1108 (which was granted), and the defendant’s motion to order the prosecutor to produce all information required by Maryland v. Brady, including exculpatory evidence and impeachment evidence for any prosecution witnesses.  With the prospect that Doe 2 would be testifying against his client, the defense attorney specifically asked the prosecutor for a copy of OPD’s police report.  The prosecutor responded that the confidentiality of the suspect in that case, who was not the defendant, and Doe 2—both of whom were minors—were protected under Welfare and Institutions Code section 827, and for that reason the OPD report was not discoverable.  The trial judge agreed, telling defense counsel that to get that information he must file a petition with the Juvenile Court under W&I § 827.  Defense counsel filed such a petition on May 11, 2018.   Trial started on June 4th without any response to defendant’s petition from the Juvenile Court.  Four days after defendant’s conviction and six weeks after his petition to the Juvenile Court, defendant finally got the requested information, and more.  Received were some redacted Child Protective Services (CPS) reports regarding Doe 2, describing the incident of alleged abuse of Doe 2 which had been reported in 2012.  (Defendant never did get the related OPD report.) The CPS reports reflected a thorough investigation including interviews of Doe 2, her 10-year-old brother, and a 12-year-old male cousin (the suspect), all of which resulted in an investigator’s conclusion that the allegations were unfounded because “[t]he children made conflicting reports regarding the alleged sexual abuse.”  Arguably, this was all potential evidence defense counsel could have used to impeach Doe 2 (i.e., “Brady material”) at defendant’s trial.  Based on the CPS reports, defense counsel moved for a new trial on the grounds of discovery of new evidence and the prosecution’s failure to disclose the evidence in violation of Brady.  The trial court denied defendant’s motion for a new trial, indicating that it would “not likely have admitted the evidence (in trial) for several reasons—E.C. § 352, undue consumption of time, and the investigator’s conclusion being an inadmissible opinion—and thus it would not have “rendered a different result probable on retrial.”  The Appellate Court disagreed, finding the trial court’s denial of a new trial to be error, and that the prosecutor had in fact violated Brady, thus requiring a reversal. The rules under Brady are simple (even though not always easy to apply):  “The prosecution has a duty under the Fourteenth Amendment's due process clause to disclose evidence to a criminal defendant when the evidence is both favorable to the defendant and material on either guilt or punishment.” (In re Miranda (2008) 43 Cal.4th 541, 575.)  “There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” (People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 710.)  “Evidence is ‘favorable’ if it … helps the defense or hurts the prosecution, as by impeaching one of the prosecution's witnesses. [Citation.] Evidence is ‘material’ only if there is a reasonable probability that, had [it] been disclosed to the defense, the result . . .  would have been different.”  (In re Miranda, supra, at p. 575.)  Nor does the evidence necessarily have to be in the actual possession of the prosecution. “[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police” (or anyone else who would be considered to be a part of the “prosecution team”).  There was no issue here that the information in the CPS report was relevant to Doe 2’s credibility and was information of which the prosecution is presumed to have been aware.  The only issue is whether the character of such information as being “confidential,” such as that contained in Juvenile Court records (pursuant to W&I Code § 827), takes precedence over the rules under Brady.  The People argued that because the prosecutor notified defense counsel of the existence of the CPS report in its initial discovery, thus affording defendant the opportunity to petition the Juvenile Court under W&I § 827 for access to any potentially exculpatory or impeachment evidence concerning Doe 2’s credibility, the requirements of Brady were satisfied. The People further argued that the trial court lacked the authority to conduct an in camera review of the juvenile records because section 827 confers exclusive authority on the juvenile court to decide whether to grant access to such records.  The Appellate Court agreed with the prosecution that they were not required to provide defendant with the OPD report, or that the trial court was required to review the report (or other juvenile records) in camera.  However, it disagreed with the argument that by merely disclosing to defendant the existence of notes reflecting the existence of a police report documenting Doe 2’s allegation of sexual abuse by a party other than defendant, the prosecution had satisfied its Brady obligations.  Rather, the Court held that while the prosecutor could have satisfied its obligation by specifically informing the defense that the police report and the Juvenile Court CPS records contained Brady material, merely disclosing the existence of such records, without noting its potential value as Brady material, was legally insufficient. The United States Supreme Court has already held that a state’s interest in the confidentiality of certain reports “must yield to a criminal defendant’s Sixth and Fourteenth Amendment right to discover favorable evidence.” (Pennsylvania v. Ritchie (1987) 480 U.S. 39.)  Taking it a step further, the California Supreme Court has held that a prosecutor satisfies his or her Brady obligations by informing a defendant that there is potential Brady material in a police department’s confidential personnel files regarding officers who were witnesses in the case.  Then, despite the confidentiality of such records, defendant can then seek access to such information pursuant to a “Pitchess motion” (pursuant to Pitchess v. Superior Court (1974) 11 Cal.3rd 531, and Evid. Code §§ 1043 et seq.).  (People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 710; see California Legal Update, Vol. 20, #9, Sept. 7, 2015.)  While a prosecutor is not obligated to do a defendant’s research for him, he or she is at the very least required to inform the defendant of the existence of potentially impeaching evidence (i.e. “Brady material”) in certain records, whether those records are statutorily confidential or not.  As for the OPD report, the People could have satisfied their Brady obligation by informing the defense of the existence of potential impeachment material in the police report, making a copy of the OPD available for the Juvenile Court’s review, and then referring defendant to the section 827 procedure to obtain it.  However, that is not what they did in this case.  In sum, because the prosecutor here failed to advise defense counsel of the existence of Brady material in either the Juvenile Court’s CPS records or the OPD report, Brady was violated.  The suppression of substantial material evidence bearing on the credibility of a key prosecution witness is a denial of due process within the meaning of the Fourteenth Amendment.  Defendant therefore, is entitled to a new trail.

The Court further notes that while defense counsel could have been more diligent in seeking the Juvenile Court records, his foot-dragging did not excuse the prosecution’s failure to specifically inform him that the CPS records and OPD report contained potential Brady material.  Had the prosecutor so informed defense counsel, and the relevant information was not requested in time for trial (perhaps necessitating a continuance of the trial itself), then we would have had an incompetence of counsel issue. But that’s an issue for another day.  The important point here is that it is not sufficient for a prosecutor to merely tell defense counsel that there are records or reports that involve a prosecution witness.  He or she must specifically warn defense counsel that such records contain potential impeaching Brady material, putting him on notice that the ball is now in his court to actively seek out those records.  Seems like over-kill, perhaps, but that’s the rule.