A Prosecutor’s Ethical Obligations as They Relate to Pre-Trial Discovery
By Robert C. Phillips
Deputy District Attorney, Ret.
July, 2021
It goes without saying that a prosecutor does indeed wield significant power. While the loyalties of a defense attorney in any criminal case typically relate to but one person, i.e., the defendant, the prosecutor in a state case represents “The People of the State of California.” Under California’s Government Code: “The district attorney is the public prosecutor, except as otherwise provided by law. The public prosecutor shall attend the courts, and within his or her discretion shall initiate and conduct on behalf of the people all prosecutions for public offenses.”[1]
Similarly, a federal prosecutor, in effect, represents the entire country. “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all.”[2]
But with the power of a prosecutor comes a higher obligation—an ethical obligation—to see that justice is done. “Justice” does not always require that a charged defendant be convicted. Prosecutors, both state and federal, have been reminded by the United States Supreme Court that “(s)ociety wins not only when the guilty are convicted but when criminal trials are fair. (And on the other side of this coin), (O)ur system of the administration of justice suffers when any accused is treated unfairly. . . . . ‘The United States wins its point whenever justice is done its citizens in the courts.’”[3]
Indeed, the United States Supreme Court pointedly held over eight decades ago that a prosecutor;
“. . . is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”[4]
A prosecutor’s ethical obligations to do justice begin not at the time of trial, but from the very beginnings of any criminal prosecution, starting, perhaps, when deciding upon whom to file criminal charges, continuing on through the decision of what information to provide to the defense during pre-trial discovery, and when, in the sequence of events, to provide it.[5]
The prosecutor’s constitutional obligation to provide complete discovery derives from the due process clause of the Fourteenth Amendment.[6] In Brady v. Maryland,[7] the Supreme Court held that the prosecution must reveal to the defense “evidence favorable to an accused . . . where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”[8]
But not every failure to provide complete discovery to the defense constitutes a Brady violation. Discovery is not required unless the three components of a prosecutor’s Brady obligations come into play. The three factors of a Brady violation has been described as (1) when evidence in issue is “favorable” to the accused, either because it is exculpatory or because it is impeaching, (2) the evidence is in fact suppressed by the State, either willfully or inadvertently, and (3) the defendant is thereby prejudiced.[9] The California Supreme Court has specifically disapproved any prior decisions construing the federal constitutional obligation as requiring disclosure of any evidence unless the evidence in issue meets these requirements.[10]
Being every prosecutor’s responsibility to provide the defense with evidence favorable to the accused, it has been held that when in doubt as to the relevance of any particular piece of evidence, the prosecutor should err on the side of caution. The United States Supreme Court has thus noted that “the prosecution’s responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable,” and for that reason, “a prosecutor anxious about tacking too close to the wind” is to err on the side of disclosure in order to “justify trust in the prosecutor,” and to “preserve the criminal trial . . . as the chosen forum for ascertaining the truth about criminal accusations.”[11]
The Issue of Materiality:
As noted above, one of the rules under Brady is that the evidence in issue must be “material” to trigger Brady’s protections. This particular element of a true Brady violation is important because it so often comes into play when determining whether reversal of a defendant’s conviction is necessary. If the disputed evidence is not “material” to the issues, then the prosecution’s failure to reveal its existence to the defense is not a Brady violation.
Per the U.S. Supreme Court, as noted in the landmark case decision of United States v. Bagley;[12] “(I)f there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,” then the evidence is “material.” A “reasonable probability” was defined by the Court as “a probability sufficient to undermine confidence in the outcome.”[13]
The definition of “materiality” has been elaborated on by the California Supreme Court as well: “Evidence is material if there is a reasonable probability its disclosure would have altered the trial result.”[14] Put another way, the defendant must show 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.”[15] “‘In determining whether there is a reasonable probability that disclosure of such evidence would have yielded a different outcome under Brady, ‘“‘the court must consider the nondisclosure dynamically, taking into account the range of predictable impacts on trial strategy.”’”[16]
It is often an issue of what types—or categories—of evidence require pre-trial disclosure in order to warrant the over-turning of a criminal defendant’s conviction. In other words; when is a type of evidence actually material to a defendant’s guilt or innocence, sufficient to justify a reversal of the defendant’s criminal conviction? It helps to break down the various types of evidence into convenient general categories in making this determination.
Rumors or Otherwise Speculative Evidence:
As an example of the importance of finding that undisclosed evidence is material, we can consider the Ninth Circuit Court of Appeal’s decision in Smith v. Stewart.[17] In Smith, defendant Bernard Smith was charged with having committed a murder during the commission of a robbery of a convenience store. During the robbery, defendant “shot his hapless victim,” the store’s clerk, merely because the victim ignored defendant’s demand for the money from the cash register. In Smith, the court held there was no Brady violation despite the prosecution having failed to tell the defense that the police had heard a rumor in the community to the effect that the defendant’s brother was in the car with defendant at the time of the robbery.
In response to defendant Smith’s post-trial complaint that he should have been told of this rumor, the Court held that “it is pretty difficult to see how the information was favorable. If it were, it was so weak, so remote, and so inconclusive that it is highly unlikely that it would have had any effect whatever upon the verdict, much less would it ‘undermine confidence in the outcome’ of the trial.”[18] As such, the fact of the existence of such a rumor itself was held to be immaterial to defendant’s guilt or punishment. That defense counsel had not been told of this information beforehand, therefore, was not to be a violation of the Brady rules.[19]
Speculative evidence falls into the same category. The California Supreme Court has consistently suggested that evidence that is “speculative” is not favorable evidence for Brady purposes.[20] Other lower courts, state and federal, have similarly repeated this rule.
For instance, In People v. Gutierrez,[21] defendant argued that the principles of Brady had been violated by the prosecution’s failure to scan police personnel files of the officers involved in his case, looking for adverse character evidence. California’s Second District Court of Appeals rejected defendant’s argument in this regard, holding that Brady does not require “the disclosure of information that is of mere speculative value.”[22] Having failed to provide a basis for believing that the officers’ personnel files in issue contained any Brady material, defendant was not entitled to a reversal of his conviction based upon an alleged Brady error.[23]
And in Downs v. Hoyt,[24] a federal Ninth Circuit case, the prosecution did not turn over information on some 100 leads contained in the sheriff’s file, including pictures and names of suspects, license plate numbers of vehicles matching the description given by the defendant, and names and phone numbers of citizens and law enforcement officials with potentially relevant information. Nevertheless, the Ninth Circuit held that “Brady does not require a prosecutor to turn over files reflecting leads and ongoing investigations where no exonerating or impeaching evidence has turned up.”[25]
Pending Internal Investigations:
When a potential law enforcement witness in a criminal case has a pending internal investigation into possible misconduct by that witness, there is some argument that because the substance of that pending investigation is still “preliminary,” at least until the internal investigation is complete, that the prosecution need not alert the defense to the fact that an internal investigation is in the works.[26]
The Ninth Circuit Court of Appeals, however, appears to have rejected this argument. In United States v. Olsen,[27] an internal investigation into a forensic scientist employed by the Washington State Patrol was still pending. The Court ruled that the prosecution had a duty to provide defense counsel with impeachment information related to that investigation.[28]
Per the Ninth Circuit: “In the government’s view, apparently, no matter what the investigative file contained—even perhaps a sworn affidavit by [the scientist] himself admitting that [wrongdoing]—this evidence would not be favorable under Brady until the administrative decision maker concluded that such conduct violated [the employing agencies’] regulations. This position is untenable under Brady, and the government’s tenacious adherence to it is mystifying.”[29]
The Ninth Circuit ultimately found that the evidence was not material; i.e., it wouldn’t have affected the ultimate outcome of the case. However, had it not so ruled, the clear implication in Olsen is that exculpatory information in an internal investigation, whether on-going or complete, should ordinarily be disclosed. This conclusion is supported by a California case—City of Los Angeles v. Superior Court[30]—where it was held that “the Pitchess scheme[31] does not delay discovery of citizen complaints until an investigation is completed or even until the officer has filed his response. Rather, when the proper showing is made, citizen complaints are discoverable even if the investigation of those complaints is still incomplete.”[32]
Inadmissible Evidence:
Although “admissibility” of any particular piece of evidence is obviously relevant to the issue of “materiality” when considering the applicability of the Brady rules, there is a split of authority as to whether inadmissible evidence must be disclosed.
For instance, in Woods v. Bartholomew,[33] the United States Supreme Court held that failure to disclose evidence that a witness had failed a polygraph was not a Brady violation since the results of a polygraph are inadmissible. Because the polygraph results are inadmissible, there was no “reasonable probability” that had the evidence been disclosed the result at trial would have been different.[34]
However, despite this ruling, the California Supreme Court has noted that the High Court has “never announced a bright line rule that only admissible evidence is ‘material’ for purposes of a Brady violation.”[35] As a result, federal and state courts are split over whether the failure to disclose inadmissible evidence constitutes a Brady violation. In the federal arena, it appears that the majority of the federal circuits tend to believe that Brady does apply to inadmissible evidence, at least if the withheld evidence would have led directly to material admissible evidence.[36]
California seems to be leaning in that direction as well. For instance, in People v. Santos,[37] the Fifth Appellate District held that the defense was entitled to discovery of the misdemeanor convictions of some of the prosecution witnesses, even though such convictions are inadmissible hearsay, because disclosure of the existence of such convictions would “assist the defendant in obtaining direct evidence of the misdemeanor misconduct itself.”[38] Similarly, in Kelvin L. v. Superior Court,[39] the Second District Court of Appeal, in a juvenile case, held that “discovery is not limited to admissible evidence, but encompasses information which may lead to relevant evidence.”[40]
Prior Conflicting or Inconsistent Statements:
A government witness’ prior inconsistent statements, if found to be material, clearly satisfy the first requirement of a Brady violation; that the evidence be “favorable” to the defendant. For instance, in the Supreme Court case of Smith v. Cain,[41] an eyewitness to the murder of five individuals testified at trial that defendant was the first of several shooters to come through the door where the murders took place. In that witness’ prior statement to law enforcement, however, he told investigators that he could not identify defendant. In that this witness’ testimony was the only evidence connecting defendant to the murders, it was found to be material. Failure of the prosecutor to provide defense counsel with the witness’ prior inconsistent statement was held to be reversible error.
Similarly, in In re Miranda,[42] the prosecution was in possession of a letter written by a Los Angeles County jail inmate by the name of Larry Montez, recounting another person’s (Joe Saucedo's) admission to Montez that he (Saucedo) had personally killed the victim. The Montez letter, although hearsay and not itself admissible in evidence, directly contradicted Saucedo's testimony at defendant’s capital murder trial that it was defendant who had stabbed the victim while he (Saucedo) had tried to stop the killing.[43] Failure of the prosecution to provide defense counsel with this letter was found to constitute Brady error, requiring reversal of both defendant’s guilty plea and his death sentence.[44]
Minor inconsistencies in a witness’ statements, however, may not constitute evidence that is “material” for Brady purposes.[45] In People v. Cook,[46] for instance, it was held that “a slight variance” in a witness’ recorded statements (one of which was provided late to defense counsel) made a different times was immaterial.[47] Each case has to be evaluated on its own merits.
Prior False Reports:
Evidence that a complaining witness has made prior false accusations of having been sexually assaulted or molested by another is relevant on the issue of the complaining witness’ credibility. Evidence of such a false accusation is relevant and possibly admissible notwithstanding California Evidence Code sections 782 and 1103(c), which generally place strict limits on the use of prior sexual activity by the victim in a sexual assault case.[48] As such, the facts underlying such an accusation may not be admissible in evidence.[49] This, however, is a matter best taken up before the trial court prior to trial.[50] Attempts by the prosecution to keep secret an alleged a victim’s false accusations of sexual assault in the current case, perhaps under the misguided belief that the Evidence Code prohibits the use of such evidence and that a trial court would so rule, will definitely raise Brady issues that might jeopardize a conviction.
However, “[a] prior accusation of rape is relevant to the complaining witness's credibility, but only if the accusation is shown to be false.” For it to be relevant, “the defense would have had to establish both that the accusation was made and that it was false. If the complaint of being previously sexually assaulted is true, it has no relevance to impeachment.[51] Irrelevant evidence is not favorable evidence and thus, absent a showing to the effect that the prior accusation was false, it is not discoverable.[52]
The same holds true where an alleged victim has provided law enforcement with prior false information on one or more prior occasions. In Benn v. Lambert,[53] for instance, the court held the fact that an informant-witness had, in the past, repeatedly lied to law enforcement was discoverable Brady information.[54] In another case, where the witness had a history of faking suicide attempts in order to obtain prison transfers or otherwise influence his placement within the prison system,” the fact of such false claims was held to be potentially impeaching.[55]
Not all prior allegations of alleged misconduct or instances of dishonesty, however, are worthy of being classified as Brady material. In People v. Jordan,[56] for instance, the People presented evidence from a gang expert witness. After the trial, the defense learned that in two other unrelated criminal trials, the defendants in those cases had alleged that the same gang expert had fabricated evidence. In one of those unrelated trials, the defendant had also testified that the gang expert had used excessive force during a detention and then fabricated evidence of the defendant’s alleged possession of narcotics in order to justify the use of force. The defendant in that prior case, however, did not file a complaint about the officer’s alleged conduct until after his own case had been reversed on appeal. In a different unrelated trial, that same defendant testified that he was approached by the same gang expert and threatened with being imprisoned for life if he did not identify gang members from a book of photographs; that the gang expert stopped him two months later and planted cocaine on him; and that the officer’s conduct resulted in the defendant being falsely convicted. That defendant also did not file a citizen’s complaint.[57]
On appeal in the Jordan case, the defense claimed the prosecution had a Brady obligation to reveal all this information. The Appellate Court, however, disagreed, holding that the prosecution has no duty “to catalog the testimony of every witness called by the defense at every criminal trial in the county, cull from that testimony complaints about peace officers and disclose those complaints to the defense whenever the People called the peace officer as a witness at another trial.”[58] In addition, the Court noted that “it does not appear that a claim of peace officer misconduct, asserted only at an unrelated criminal trial by a defendant trying to avoid criminal liability, constitutes favorable evidence within the meaning of Brady.” Such complaints, per the Court, “do not immediately command respect as trustworthy or indicate actual misconduct on the part of the officer,” even if the unrelated trial results in an acquittal.[59]
Related Civil Suits:
If a victim or witness in a criminal case has filed a civil suit against the defendant, this fact alone has been held, at least in other jurisdictions, to be “favorable evidence” because it provides a potential motive to testify in a manner helpful to being successful in the civil suit. “Introduction of the existence of the civil suit in a criminal case is permissible ‘to show the complainant’s possible bias and interest in the outcome of the case.’”[60] However, “[t]he specific details of a lawsuit filed by a complainant are irrelevant to establishing the complainant’s bias or motive.”[61]
But whether the fact that a law enforcement officer has been sued by the defendant in the criminal case based upon the same set of facts as alleged in that criminal case, is admissible, has yet to be decided, likely because the defendant is certainly already aware that he has filed such a suit, and therefore the Brady issue never arises. The issue then becomes one of whether or not being the defendant in a pending civil suit provides the officer with sufficieint motivation to alter his criminal case testimony in any manner. The answer to this question must await future case law.
Mistakes Perpetrated by a Witness:
A witness’ incompetence or bungling in the charged case undoubtedly constitutes favorable evidence, and is thus discoverable. In the Ninth Circuit case of United States v. Howell,[62] for example, an officer had mistakenly written in the police report that money was found on one defendant when in fact it was found on the other defendant. Despite the fact the corrected information only served to help establish the complaining defendant’s guilt, the court found the existence of the error to be Brady material. The court reasoned that indications of conscientious police work will enhance the evidence’s probative force while “slovenly work” will diminish it. Thus, information that might raise opportunities for a defendant to attack the thoroughness and good faith of the investigation can constitute exculpatory, material evidence.[63]
However, minor inaccuracies contained in a witness’ statements to the police, such as an inaccurate description of the defendant’s physical characteristics, or even the omission of some minor narrative details, may not, depending upon the circumstances, be deemed material favorable evidence. A single mistake on a past case is not likely to be important enough, by itself, to be considered “favorable evidence.”[64] The issue will have to be determined on a case-by-case basis, with the answer likely to turn on whether the “sloppiness” in a person’s work or inaccuracies in his recollection of what had occurred involved an isolated mistake (or even a few isolated mistakes) as opposed to a pattern of sloppiness or mistakes rising to the level of a habit or character trait.
For instance, in the Fourth District Court of Appeal case of People v. Garcia,[65] a California Highway Patrol (CHP) accident reconstruction expert testified in defendant’s case. After defendant’s conviction, the prosecution learned that the expert was no longer being used by the CHP because of a history of faulty and improper calculations. This was brought to the attention of the San Diego district attorney’s office which did its own review of a dozen cases (although not defendant’s case) where the expert had testified. This review resulted in finding errors with respect to speed calculations in five of those twelve cases. Although it was not clear whether the expert used the improper calculation in the defendant’s case, the fact that the expert had used the wrong calculations in other cases was deemed to be relevant exculpatory evidence in the defendant’s case.[66]
Similarly, in the Ninth Circuit case of United States v. Olsen, [67] the Court held that information in a report that was generated as part of an internal investigation into a forensic scientist was favorable evidence that should have been disclosed. The investigation arose based on claims that, in previous cases, the scientist offered statistical conclusions regarding hair sample identifications that were not consistent with scientific principles and had substantially overstated the number of cases in which he had conducted hair analyses. The internal report included several evaluations of the scientist’s work by other experts, including forensic chemists who called into question the scientist’s diligence and care in the laboratory, his understanding of the scientific principles about which he testified in court, and his credibility on the witness stand. The reviewing experts noted, among other things, the presence of unexplained contaminants in his laboratory.[68]
The Ninth Circuit found that the peer evaluation was favorable to the defense for two reasons. First, it provided evidence that the scientist’s lab work was characterized by sloppiness and haste as it criticized the scientist for (i) his reliance on “speed and shortcuts,” and (ii) for unaddressed contamination of laboratory materials and an inaccurate test. Secondly, the peer evaluation reported “small misstatements made in a number of testimonies,” “a tendency for conclusions to become stronger as the case developed, from notes to written report to testimony,” and testimony that was either unsupported by the data or outside the scientist’s field of expertise. The Ninth Circuit held that while these findings largely bore on the scientist’s willingness to offer unwarranted scientific conclusions, they also spoke to his “truthfulness on a more general level, by suggesting a proclivity to shade his testimony in favor of the government’s case. As such, they could have been used to question the accuracy of his account about the care with which he examined [defendant’s] items and thus call into question his credibility as a witness.”[69]
In another Ninth Circuit case, Aguilar v. Woodford,[70] the Court held the prosecution had a duty to disclose evidence in a pending case that a police scent dog had a history of mistaken identifications in past cases and that those misidentifications had caused a court in a previous case to exclude handler testimony relating to a scent identification. The prior exclusion was based, in part, on the dog having identified two different men as the source of the scent on a murder suspect’s shirt four years earlier and on having identified someone as the perpetrator of a crime in another case where the person identified was in prison at the time the crime was committed.[71]
Promises, Offers, and Inducements:
The prosecutor has a duty to “disclose to the defense and jury any inducements made to a prosecution witness to testify and must also correct any false or misleading testimony by the witness relating to any inducements.”[72] “In general, Brady requires prosecutors to disclose any benefits that are given to a government informant or other witness, including any lenient treatment for pending cases.”[73] Additionally, there is a corresponding “duty to learn of any possible inducements made by law enforcement officers or other agents of the state.”[74]
This includes tacit or implied promises as well.[75] Again, all inducements to an informant to testify must be disclosed to the defense, even if the prosecutor is not aware of the inducement and even if it includes open-ended (i.e., non-specific) promises.[76]
In Maxwell v. Roe,[77] for instance, the Ninth Circuit held the prosecution had a duty not only to disclose a “deal” the prosecution had worked out with the defense attorney, but also was required to disclose the fact that the informant had “pursued an additional benefit to himself—independent of and subsequent to the agreement worked out by his public defender.” The Court also noted that this fact constituted “Brady material” in that it would have contradicted the informant’s contrary testimony at trial, reflecting on his credibility.[78]
In Phillips v. Ornoski,[79] the Ninth Circuit held there was a duty to disclose an offer being made to a witness in exchange for the witness’ testimony, even though the offer had been refused, where the witness testified she did not expect any benefit in exchange for her testimony. The Court held that the jury had been misled on this issue when it was inferred that no offer had been made, and that the witness, despite her refusal to accept the deal, did not still expect leniency.[80]
Any payments to witnesses qualify as favorable evidence.[81] “Payments to a government witness are no small thing.”[82] Also, “an agreement to put in a good word” on behalf of a prosecution witness in a pending case may, depending upon the circumstances, constitute a circumstance that Brady requires to be revealed.[83]
The California Supreme Court has held that any agreement under which an informant provided information in exchange for efforts to keep him safe by maintaining him in county jail instead of returning him to state prison was not favorable evidence, and thus did not have to be disclosed.[84] The California’s High Court has also ruled that making arrangements to help protect the safety of a witness who has cooperated, such as by relocating him while in custody, is probably not the type of benefit that necessarily must be disclosed under Brady.[85] However, in a seemingly conflicting opinion, the California Supreme Court has also ruled that a witness who has received monies in order to cover the costs of relocating the witness, this fact probably needs to be disclosed.[86] Given these conflicting results, this is one area of the law where it would seem wise to err on the side of caution and reveal any official actions taken for the purpose of protecting the witness in exchange for his testimony against a defendant.
However, there are limits. For instance, in the California Supreme Court case of People v. Sattiewhite,[87] the defendant claimed the prosecution violated Brady when it failed to turn over evidence that the victim’s mother and son opposed the death penalty for defendant. The Sattiewhite Court rejected this claim, holding that the views of the victim’s relatives as “to the appropriate punishment was irrelevant and inadmissible” and had “no bearing on the defendant’s character or record or any circumstance of the offense.”[88]
Grants of Immunity or Other Benefits:
It probably goes without saying that the fact that a witness, who may have been at one time subject to being prosecuted as a co-defendant in either the defendant’s pending case or for any other illegal acts the witness may have perpetrated, but has been granted immunity in exchange for his testimony, is Brady material that certainly must be revealed.[89] This same rule has been held to apply when the grant of immunity is for the benefit of a third party, such as the witness’ son[90] or his grandson.[91] It is further noted that the grant of immunity need not have been provided in a formal agreement. Simply telling a witness that there is “nothing to worry about” so long as the witness testifies truthfully may be sufficient to trigger a prosecutor’s disclosure obligations under Brady.[92]
However, if the prosecution’s offer of a plea deal to the witness is rejected by the witness, then the fact that an offer was made is probably not discoverable. “(T)he duty to disclose is dependent upon the existence of an agreement between the witness and the government.”[93] However, remember Phillips v. Ornoski, discussed above, where the Ninth Circuit ruled that despite the witness’ refusal to accept the deal, that fact that she might still expect leniency in some form made the fact of the officer relevant for Brady purposes.[94]
Even where the prosecutor does not offer immunity or some other benefit, but the witness attempts, albeit unsuccessfully, to obtain benefits in return for his or her testimony, the simple fact the witness even made the attempt has been held to be “favorable” evidence that must be disclosed. In support of this theory, the U.S. Supreme Court has noted that “even though the State had made no binding promises, a witness’ attempt to obtain a deal before testifying was material because the jury ‘might well have concluded that [the witness] had fabricated testimony in order to curry the [prosecution’s] favor.’”[95]
Conclusion:
Obviously, the issues related to the applicability of Brady v. Maryland to any given fact situation are not always obvious, at best, and often unpredictably confusing, at the worst. The simple answer, as noted above, is to err on the side of caution, volunteering questionable evidence to the defense, and then arguing at trial the relevancy of the information when the defense attempts to use it. The standard remedy for a Brady violation is at the very least reversal of a defendant’s conviction. In extreme cases, that reversal may even be with prejudice, foreclosing any attempt to retry the case.[96] In contrast, the remedy for a mid-trial erroneous evidentiary ruling, where the defense was aware of the evidence in issue and had the opportunity to argue admissibility issues before the trial court, is seldom so drastic.
Remember also that the California Legislature has added insult to injury by enacting penal sanctions to a prosecutor’s liability, applicable where a Brady violation is found to be intentional. Effective on January 1, 2016, new subdivision (c) was added to Penal Code § 141, exposing prosecutors to a punishment of up to three years in prison for an intentional Brady violation.[97]
To avoid all these issue, many prosecutors simply open up their files to the defense. While such a practice may not always be the wisest option, particularly when the files in issue contain facts that are clearly not Brady material and might serve to compromise the prosecution’s case or otherwise unnecessarily embarrass or endanger witnesses or victims, it certainly goes a long way to avoid altogether later claims of a Brady violation. It is perhaps the best alternative, however, for a prosecutor to be familiar with the rules under Brady v. Maryland and be prepared to comply with them.
[1] Cal. Gov’t. Code § 26500.
[2] Berger v. United States (1935) 295 U.S. 78, 88 [79 L.Ed. 1314; 55 S.Ct. 629]
[3] Brady v. Maryland (1963) 373 U.S. 83, 87 [10 L.Ed.2nd 215; 83 S.Ct. 1194].
[4] Berger v. United States, supra.
[5] See Cal. Evid. Code §§ 1043 through 1047.
[6] Brady v. Maryland, supra, at pp. 86-87.
[7] Supra.
[8] Id., at p. 87.
[9] Skinner v. Switzer (2011) 562 U.S. 521, 536 [131 S.Ct. 1289; 179 L.Ed.2nd 233].
Strickler v. Greene (1999) 527 U.S. 263, 281-282 [119 S.Ct. 1936; 144 L.Ed.2nd 286].
[10] In re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5.
[11] Kyles v. Whitley (1995) 514 U.S. 419, 437-440 [131 L.Ed.2nd 490; 115 S.Ct. 1555].
See also United States v. Bruce (9th Cir. 2021) 984 F.3rd 884, 896.
[12] (1985) 473 U.S. 667 [87 L.Ed.2nd 481; 105 S.Ct. 3375].
[13] Id., at p. 682, citing Strickland v. Washington (1984) 466 U.S. 668; a “competence of counsel” case.
United States v. Bruce, supra, at pp. 894-895.
[14] People v. Zambrano (2007) 41 Cal.4th 1082, 1132; see also
People v. Lucas (2014) 60 Cal.4th 153, 273–274; and
City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 7-8.
[15] Kyles v. Whitley, supra, at p. 435.
People v. Stewart (2020) 55 Cal.App.5th 755, 769, quoting In re Miranda (2008) 43 Cal.4th 541, 575.
[16] People v. Stewart, supra, quoting People v. Gaines (2009) 46 Cal.4th 172, 184.
[17] (9th Cir. 1998) 140 F.3rd 1263.
[18] Id., at p. 1273.
[19] Id., citing United States v. Bagley, supra, at p. 682; and Carriger v. Stewart (9th Cir. 1997) 132 F.3rd 463, 479, discussing the issue of materiality.
[20] People v. Burgener (2003) 29 Cal.4th 833, 875; citing United States v. Flores-Mireles (8th Cir. 1997) 112 F.3d 337, 340, and United States v. Arias-Villanueva (9th Cir. 1993) 998 F.2d 1491, 1506; see also
People v. Zaragoza (2016) 1 Cal.5th 21, 52.
[21] (2003) 112 Cal.App.4th 1463.
[22] Id., at p. 1472.
[23] Id., at pp. 1471-1472.
[24] (9th Cir. 2000) 232 F.3rd 1031.
[25] Id., at p. 1037.
[26] See United States v. Agurs (1976) 427 U.S. 97, 109, fn. 16 [49 L.Ed.2nd 342; 96 S. Ct. 2392];
Tate v. Wood (2nd Cir. 1992) 963 F.2nd 20, 25; and
United States v. Veras (7th Cir. 1995) 51 F.3rd 1365, 1374.
[27] (9th Cir. 2013) 704 F.3d 1172.
[28] Id., at pp. 1182-1183.
[29] Id., at p. 1182.
[30] (2002) 29 Cal.4th 1.
[31] Referring to Pitchess v. Superior Court (1974) 11 Cal.3rd 531, and Cal. Evid. Code §§ 1043 et seq.
[32] Id., at p. 13.
[33] (1995) 516 U.S. 1 [116 S.Ct. 7; 133 L.Ed.2nd 1].
[34] Id., at p. 6.
[35] People v. Hoyos (2007) 41 Cal.4th 872, 919; accord In re Miranda (2008) 43 Cal.4th 541, 576.
[36] See Ellsworth v. Warden (1st Cir. 2003) 333 F.3d 1, 5.
[37] (1994) 30 Cal.App.4th 169.
[38] Id., at p. 179.
[39] (1976) 62 Cal.App.3rd 823.
[40] Id., at p. 828.
[41] (2012) 565 U.S. 73 [132 S.Ct. 627; 181 L.Ed.2nd 571]
[42] Supra.
[43] Id., at p. 545.
[44] Id., at p. 582.
[45] See Knighton v. Mullin (10th Cir. 2002) 293 F.3d 1165, 1174.
[46] (2006) 39 Cal.4th 566, 589.
[47] Ibid.
[48] People v. Tidwell (2008) 163 Cal.App.4th 1447, 1454-1458.
[49] See People v. Miranda (2011) 199 Cal.App.4th 1403, 1424; and Cal. Evid. Code §§ 780, 782, 352.
[50] See also People v. Franklin (1994) 25 Cal.App.4th 328, 335; People v. Adams (1988) 198 Cal.App.3rd 10, 18; and People v Burrell-Hart (1987) 192 Cal.App.3rd 593, 597-600.
[51] People v. Alvarez (1996) 14 Cal.4th 155, 201.
[52] E.g., see People v. Neely (1964) 228 Cal.App.2d 16, 18; see also People v. Sully (1991) 53 Cal.3d 1195, 1221
[53] (9th Cir. 2002) 283 F.3d 1040.
[54] Id., at p. 1056; see also Carriger v. Stewart (9th Cir. 1997) 132 F.3rd 463, 479-480; and United States v. Brumel- Alvarez (9th Cir.1992) 991 F.2nd 1452, 1463;
[55] Gonzalez v. Wong (9th Cir. 2011) 667 F.3rd 965, 980-986.
[56] (2003) 108 Cal.App.4th 349.
[57] Id., at p. 356.
[58] Id., at p. 361.
[59] Id., at p. 362.
[60] In re R.D. (Pa. Super. Ct. 2012) 44 A.3d 657, 676.
[61] Commonwealth v. Hanford (Pa. Super. Ct. 2007) 937 A.2d 1094, 1099.
[62] (9th Cir. 2000) 231 F.3rd 615.
[63] Id., at p. 625, citing Kyles v. Whitley, supra, at pp. 443, 446.
[64] People v. Castro (1985) 38 Cal.3rd 301, 306.
[65] (1993) 17 Cal.App.4th1169.
[66] Id., at p.1180.
[67] (9th Cir. 2013) 704 F.3rd 1172.
[68] Id., at pp. 1179-1180.
[69] (Id., at pp. 1181-1182.
[70] (9th Cir. 2013) 725 F.3rd 970
[71] Id., at pp. 980-982.
[72] People v. Masters (2016) 62 Cal.4th 1019, 1067; People v. Phillips (1985) 41 Cal.3rd 29, 46.
[73] Maxwell v. Roe (9th Cir. 2011) 628 F.3rd 486, 510.
[74] People v. Masters (2016) 62 Cal.4th 1019, 1067.
[75] Sivak v. Hardison (9th Cir. 2011) 658 F.3rd 898, 910.
[76] In re Jackson (1992) 3 Cal.4th 578, 589-600.
[77] (9th Cir. 2011) 628 F.3rd 486.
[78] Id., at p. 510.
[79] (9th Cir. 2012) 673 F.3rd 1168.
[80] Id., at pp. 1188-1190.
[81] See United States v. Sedaghaty (9th Cir. 2013) 728 F.3rd 885, 898-903.
[82] Id., at p. 901, citing Singh v. Prunty (9th Cir. 1998) 142 F.3rd 1157, 1162.
[83] Doe v. Ayers (9th Cir. 2015) 782 F.3rd 425, 433, fn. 12.
[84] People v. Masters (2016) 62 Cal.4th 1019, 1067-1068.
[85] See People v. Curl (2009) 46 Cal.4th 339, 352-357.
[86] See People v. Verdugo (2010) 50 Cal.4th 263, 284-285.
[87] (2014) 59 Cal.4th 446.
[88] Id., at pp. 486-487.
[89] See Horton v. Mayle (9th Cir. 2005) 408 F.3d 570, 578-582.
[90] LaCaze v. Warden Louisiana Correctional Institute (5th Cir. 2011) 645 F.3rd 728, 735-736.
[91] Smith v. State (Md. Ct. Spec. App. 2017) 165 A.3rd 561, 590.
[92] See United States v. Mazzarella (9th Cir. 2015) 784 F.3rd 532, 538.
[93] White v. Steele (8th Cir. 2017) 853 F.3rd 486, 491-492; United States v. Rushing (8th Cir. 2004) 388 F.3rd 1153, 1158.
[94] Phillips v. Ornoski, supra, at pp. 1188-1190.
[95] Wearry v. Cain (2016) 577 U.S. 385, __ [136 S.Ct. 1002, 1007; 194 L.Ed.2nd 78].
See also People v. Dickey (2005) 35 Cal.4th 884, 907-909.
[96] See United States v. Bundy (9th Cir. 2020) 968 F.3rd 1019.
[97] See Cal. Penal Code § 1170(h).
