Patterico's Pontifications


Let’s Have A Clear Understanding Of The Relevant Legal Standards Before Having A Fit Over The Failure By The Prosecutors In The Stevens Case To Turn Over All Documents To The Defense (Updated X2)

Filed under: General — WLS @ 3:10 pm

[Posted by WLS]

[Since this is a post relating to prosecutorial ethics, I just want to make two things very, very clear. First: I didn’t write this post. Second: my personal view on exculpatory evidence is that it must be immediately disclosed. — Patterico]

There is news this morning that the federal judge presiding over the Ted Stevens corruption trial has suspended proceedings for the day to consider a defense motion for mistrial based on the failure by prosecutors until late yesterday to turn over to the defense FBI interviews of the key prosecution witness which contain statements by the witness that are favorable to Stevens. 

Before there is too much hand-wringing over the issue, you should be aware of the legal standards that apply, as well as the likely remedies the court can fashion — and dismissing the indictment is not one of them.

First, pursuant to 18 USC Sec. 3500, the government is not required to turn over statements made by its witnesses until that witness has testified on direct examination:

“… no statement or report in the possession of the United States which was made by a Government witness … shall be subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.”

This is a statute passed by Congress, and it was intended to deal with the problem of intimidation of government witnesses in criminal cases.  A judge does not have the legal authority to override the statute and order the prosecutors to turn statements over earlier.   

As a matter of practice, most federal prosecutors will turn over witness statements in advance of trial — usually 7 days — because strict adherence to the statute generally leaves the defendant with a legitimate claim that they need time to investigate the witness’s statement in preparing their defense.  The court will almost always grant a short continuance upon such a motion if statements are turned over only after the witness is on the stand, and that seems to be what happened in the Stevens case.

This rule is somewhat in tension with the ethical obligations of prosecutors to turn over to the defense any evidence that is favorable to the defense, even if that evidence is contained in a witness’s statement which it can otherwise withhold.   But this obligation is the product of case law (the famous Brady v. Maryland case), and there are no applicable timing requirements.  The precise legal formulation of the obligation requires that for there to be a violation warranting reversal, the withholding of the favorable evidence must actually prejudice the defendant in the outcome of the trial. 

The obligation is to turn this information over while it is still useful to the defense.  Generally, favorable evidence that is turned over during the course of the trial is still “useful” to the defense.  There usually is no Brady violation because the defendant is not prejudiced by the withholding of the evidence if he still has the opportunity to make use of it during the trial. 

So, the government was legally entitled to withhold the FBI statements of its key witness, even if the statements included evidence favorable to the defense, so long as those statements were produced before cross-examination took place and the defense had the opportunity to make use of them.

Now, the remedy that the Court has available to it is not so much to “punish” the prosecutors since they have complied with both the statute and their Brady obligation.  Rather, the remedy the court must consider is to deal with the question of whether the defendant is entitled to a delay in the proceedings so as to make effective use of the new information. 

The Court can “scold” the prosecutors all he wants — and they might very well have violated a promise they made to turn over the FBI statements earlier than yesterday, and that is why he is angry with them — but he really doesn’t have a legal basis to sanction them for misconduct.  The most he can do is protect the defendant’s right to a fair trial by granting a short continuance at the defendant’s request so they can investigate what it is the witness has said in his statements to the FBI.

UPDATE:  The judge has denied the motion to dismiss the indictment, and indicated that he would deny the motion for mistrial, but has set a hearing for Monday morning to determine if  Sen. Stevens needs additional time to prepare to cross-examine the gov’t witness.

— WLS (and not Patterico)

Update x2:  While this is an extremely esoteric subject, there is a significant reason in federal criminal law for not wanting Brady material to fall under the rubric of “discovery,” and to fight to preserve the distinction between discovery obligations under Rule 16, and ethical/legal obligations to produce favorable evidence pursuant to Brady

The Court has inherent authority to police its docket and to punish the government for abusive discovery practices such as withholding evidence it has been ordered to produce under Rule 16.  The Court can sanction the government for such practices even in the absence of prejudice to the defendant if the Gov’t conduct is sufficiently egregious, and such sanctions can include the dismissal of the case. 

But the obligation to turn over evidence favorable to the defense is not an obligation that arises under Rule 16 (federal discovery rules), so the Court cannot “order” the production of favorable evidence pursuant to Rule 16.  The obligation to turn over such evidence is independent of discovery obligations.  The failure to produce such evidence would not be a violation of Rule 16, so the Court would lack the authority to sanction the government for abusive discovery practices by ordering dismissal of the case.     

Rather, longstanding case law from the Supreme Court establishes that the failure to produce evidence favorable to the defense is reviewed for actual prejudice — is it likely that the outcome of the case would have been different if the evidence had been timely produced to the defense?  If the answer is “no” then the error is harmless and the conviction stands.  Failure to produce Brady material is not a sanctionable offense.

But that is not to say that the Judge cannot report the prosecutor to the approrpriate state bar organization for unethical behavior.  That’s another can of worms entirely.

12 Responses to “Let’s Have A Clear Understanding Of The Relevant Legal Standards Before Having A Fit Over The Failure By The Prosecutors In The Stevens Case To Turn Over All Documents To The Defense (Updated X2)”

  1. I thought the Brady requirement was more specific than that, that the prosecutor has an ethical obligation to turn over such material as soon as it is known. Hell, Brady requires that the material be turned over even if the prosecutor /didn’t/ know about it, iirc.

    Soronel Haetir (644722)

  2. Brady is not more specific than that. Not all Brady obligations warrant reversal of a conviction — usually the finding is that the evidence of guilt was so overwhelming, the little bit of favorable evidence that didn’t get turned over would not have affected the outcome. So a defendant must show prejudice to the outcome of the case in order to obtain relief from a conviction.

    Its hard to show actual prejudice to the outcome if a defendant got the evidence during trial and had an opportunity to present it.

    As for information the prosecutor is unaware of, there was a case that came along a couple decades after Brady which held that the prosecutor is deemed to have “constructive” knowledge of all evidence known by investigators. So, its no longer a valid response to a claimed Brady obligation that only the investigator was aware of the favorable evidence and didn’t communicate it to the prosecutor. But, with that one exception, the Brady rule only applies to favorable evidence actually known to the prosecutor.

    WLS (26b1e5)

  3. Changing the topic, for purposes of my CLE, the government has a confidential informant, Johnny Six Fingers, whom they will never call to the stand but who has given them a tape-recorded and memorandized statement which contradicts the testimony of the witness they will call, Shoeless Sammy. How do Brady and the rule reconcile in that case? Is “witness” strictly defined as a witness called to the stand?

    nk (5335a4)

  4. Some people wonder why other people think that the courts don’t deserve respect. Game playing with people’s lives (on either side) is not a good plan for gaining respect.

    htom (412a17)

  5. nk — that falls under Giglio, which is a progeny of Brady. The evidence undermines the credibility of a government witness, and must be produced.

    wls (26b1e5)

  6. Thank you, WLS.

    I already agreed with WLS’s point about substantial prejudice so as long as there’s no Congressional attempt to undermine Due Process (Brady) the rule is just one of hundreds thousands that lawyers need to deal with every day.

    nk (5335a4)

  7. JRM, a prosecutor, sends this comment, which he tried to post:

    I can’t seem to post from out of town, so let’s see if this survives. (I also don’t have access to serious legal search engines, so citations are unavailable.)

    I tentatively view the violations as mistakes which were uncovered before severe harm occurred, and I think the judge was right to continue with the trial. However, I don’t know the facts well enough to confidently expound on that.

    This comment primarily addresses general prosecutorial obligations. I disagree with WLS’ position in several ways.

    1. Dismissing the indictment is an option in Brady violations. Sometimes, the violation is incurable in trial – say you’ve got knowledge of a now-unservable witness, or your witness’ exculpatory statements might be confirmed or supported with a few months more investigation.

    2. I’m certain WLS knows federal discovery statutes better than I do. However, Brady material should virtually always be promptly conveyed to the defense. (The exceptions to this are complicated and I don’t want to go into them. In some cases there are statutory bars to immediate disclosure.)

    Plus, what if you get a witness with exculpatory evidence and he no-shows, and the defense didn’t subpoena him? Woe be unto you, I bet.

    3. It’s just wrong not to disclose promptly. You’ve got a guy on a robbery with tons of evidence. A different guy, Lunatic Steve the Confessor, confesses. Give it to the defense immediately. Why not? It looks worthless to you, and it’ll create a diversion for the jury… but prosecutors don’t make that call. Give the defense as much time as possible to figure out what to do with the exculpatory information.

    Brady’s a terrific and correct rule. I frankly don’t know how it can be properly effective if prompt disclosure isn’t the general rule.

    3. It seems like you may be conflating obligations with sanctions here. “Not all obligations warrant reversal,” (Comment 2) is true, for sure. For that matter, not all violations warrant reversal. But failing to disclose up to the point the guy is on the stand is problematic, probably a violation, and violations of Brady are wrong. Whether this is a tiny screwup of no moment or not, it’s a violation, and excusing it on these bases seems really misguided to me.

    Look, I’ve been here. I’ve had some unforeseen Brady evidence show up on some serious, press-followed cases. I turn it over first and figure out what to do next second. That’s how it ought to work, and that’s how it basically works in California. (Case cites not handy due to being away from real search engines.)

    I am in full agreement that Brady material should be disclosed right away.

    Patterico (cc3b34)

  8. I don’t disagree that early production of Brady is the better practice. I don’t know of any self-respecting prosecutor who would condone the knowing withholding of Brady material for simple gamesmanship purposes on the basis that they could get away with it if they produced it “just in time.”

    Further, in my experience the federal statute that authorizes the withholding of witness statements is unique to federal law. I’m not personally aware of any similar rule in any state. Many states have “open file” discovery rules which require the early production of everything in the prosecutor’s file.

    But the federal law was passed by Congress and signed by the President. It was first passed in 1957 and later amended in 1970. My general understanding is that it was passed when certain government witnesses in high profile cases began disappearing before trial — “sleeping with the fishes” — once their identities and statements were made known to the defendants.

    As I said in my post, the statutory right of the government to withhold a witness statement can come into conflict with the legal obligation of the prosecutor to produce favorable evidence. In nearly every instance, the prosecutor is going to turn over the evidence timely because the failure to do so might later jeopardize a hard-won conviction. Any prosecutor that delays production of Brady material has to understand that they are flirting with reversal. But case law gives the first opportunity to the prosecutor to make the judgment as to whether the evidence in question falls under Brady, and secondly at what point in time continued withholding of the evidence becomes prejudicial. The burden is on the prosecutor to not make a misjudgment because it’s the prosecutor’s case that will suffer if he does. There is very clear language in Supreme Court cases that says precisely this, though it is often overlooked by the criminal defense bar which thinks the prosecutor has no discertion on how to deal with such evidence. That’s just not the case.

    The fact is that there may be instances where turning over the evidence prior to trial might legitimately put the witness’s well-being in danger, and that factors into the decision as to when to make the disclosure to the defense.

    wls (26b1e5)

  9. The problem Chicago attorneys have faced is that exculpatory information would not make its way into the police file let alone the prosecutor’s file. Detectives would keep their “field cards” of, e.g. interviews of bystander eyewitnesses, in their pockets. I have gotten Brady compliance along with a copy of the indictment at arraignment. It’s not enough. I have a page length subpoena that I serve on the police “custodian of records”. I still don’t know that I get everything. I do try to interview the police officers. Some will talk to me. Some are even friendly.

    nk (77debb)

  10. page length subpoena *request*

    nk (77debb)

  11. nk — you’re simply dealing with corrupt practices then. It doesn’t matter where the police detective keeps his interview cards — if they exist then under Kyle (?) the prosecutor is deemed to have “constructive” knowledge of their contents and a duty to disclose them arises.

    But, there is another tricky little aspect to this issue that is misunderstood. Brady does not turn the government into a defense investigator. Brady only requires that the defense be made aware of the existence of potentially exculpatory evidence, and its location. The government is well within its rights to refuse to go track it down for you. Compliance is complete simply by telling you who the witness is, and what the nature of the exculpatory evidence is. At that point both sides are operating with the same information. It’s up to the defense to go find it for themselves at that point.

    wls (26b1e5)

  12. Truth, the whole truth, and nothing but the truth, so help me hide these possibly conflicting truths.

    htom (412a17)

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