[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.