A recent Ninth Circuit case highlights the importance of disclosing impeachment evidence and the consequences of failing to do so. The prosecutor requested a criminal history check on a key government witness. The prosecutor indicated he was unaware of the criminal history which was not disclosed to the defense. The defendant was convicted and subsequently the criminal history evidence came to light.
The prosecution’s failure to disclose to the defendant the criminal history of a key witness violated the defendant’s due process rights under Brady v. Maryland, 373 U.S. 83 (1963); the criminal convictions were admissible under FRE 609 and the prior acts of theft or dishonesty were admissible under FRE 608(b), in United States v. Price, __ F.3d __ (9th Cir. May 21, 2009) (Nos. 05-30323, 06-30157).
Getting this type of discovery is a frequent problem in military cases. You will notice that Price does not cite to Henthorn. It is unlikely you will find a reference in military cases to Henthorn as a legal standard in the military for background checks on prosecution witnesses. Military discovery is broader than in the civilian community, and you should take the position that Henthorn is more restrictive than contemplated in military practice. An additional argument is that such background checks do not require a discovery request; the duty on the prosecutor is a self-executing one that must be personally done in all cases.
"the 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."
Kyles v. Whitley, 514 U.S. 419 (1995).
In the third prominent case on the way to current Brady law, United States v. Bagley, 473 U.S. 667 (1985), the Court disavowed any difference between exculpatory and impeachment evidence for Brady purposes, and it abandoned the distinction between the second and third Agurs circumstances, i.e., the "specific request" and "general or no request" situations. Bagley held that regardless of request, favorable evidence is material, and constitutional error results from its suppression by the government, "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." 473 U. S., at 682 (opinion of Blackmun, J.); id., at 685 (White, J., concurring in part and concurring in judgment).
Kyles v. Whitley, 514 U.S. 419,1567 (1995).
A good prosecutor will do the research and disclose the information needed. I have noticed a significant difference between Army and Air Force cases compared to Navy and Marine Corps cases. In the Army and Air Force the prosecutors routinely disclose any adverse matter in the witnesses record, including the records of CID and OSI. A recent experience was disclosure of an Article 15 for an OSI agent that had happened nine years before assignment to OSI. In the Navy and Marine Corps it’s a struggle. Frankly, in all but a few cases the Army and Air Force are far superior in voluntarily disclosing the case file. In Air Force cases the ROI’s come nicely tabbed and well organized. I don’t have to whine for agent interview notes, interrogation logs, and ECD’s. This is why I often respond when asked that I prefer dealing with Army and Air Force prosecutors as a group. There are of course exceptions.
I do have a pet peeve that covers all of the Services, and that is the quality of copies. The copies are often illegible because the defense is getting the “millionth” xerox of the original.