At SimpleJustice blog (a blog worth following) there is a piece about Judge Kopf and a tweet which leads to a discussion of a prosecutors obligation to provide discovery to the defense.
Let me start with some basics and two cases that prosecutors and defense lawyers know (or should know) well. In Brady v. Maryland, the Supreme Court held that suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Evidence is “material” if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.
Relatedly, in Giglio v. United States, the Supreme Court held that prosecutors must disclose to the defense any “understanding or agreement as to a future prosecution” that the government has made with a material witness. That notion has been expanded to requiring the production of impeachment information of a material character. Specifically, this is thought of as information that either casts a substantial doubt upon the accuracy of any evidence—including witness testimony—the prosecutor intends to rely on to prove an element of any crime charged, or might have a significant bearing on the admissibility of prosecution evidence.
Yes, we know this to be the law, the issue is whether it is practiced. I would add that a discovery request, which I call a Kyles Request (think Kyles v. Whitley, 514 U.S. 419 (1885)), should be part of your practice. We certainly have some well-documented instances of prosecutor error in military cases. Recently, former Chief Judge Effron made a recommendation through the Military Justice Review Group to adopt a military prosecutors manual in the style of the U. S. Attorney’s Manual.
- In the District of Nebraska, and as suggested by Judge Kozinski, [they] already issue mandatory Brady/Giglio disclosure orders, the violation of which would justify discipline. More specifically, federal judges should use as a disciplinary gauge, and require federal prosecutors to scrupulously comply with, part 9-5.001 (Policy Regarding Disclosure of Exculpatory and Impeachment Information) and part 9-5.100 (“Giglio Policy”) of the U. S. Attorneys’ Manual. That Manual is a full and fair exposition of the law. Indeed, it explicitly “errs” on the side of disclosure if there is a question.[v] The Manual would serve as an excellent policy model for state prosecutors to adopt.
They may err because:
“The prudent prosecutor will resolve doubtful questions in favor of disclosure.” . . . Such disclosure will serve to justify the trust in the prosecutor as “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.”
Kyles, 514 U.S. at 439 (quoting United States v. Agurs, 427 U.S. 97, 108 (1976); Berger v. United States, 295 U.S. 78, 88 (1935)).
- Federal judges should not hesitate to employ their independent[vi] disciplinary authority to reprimand, suspend, or disbar prosecutors who violate our orders and the requirements of the Manual. See, e.g., NEGenR 1.7(b) & NEGenR 1.8(g). These judges should not wait for or depend on state disciplinary authorities to act. Nor should they wait for DOJ’s Office of Professional Responsibility to awake. In short, we federal judges are not and should not serve as potted plants, particularly when it comes to Brady/Giglio violators.[vii]