Brady v. Maryland and Undisclosed Impeachment Evidence: Statutorily Protected Confidential Records...
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.
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