A reason to doubt: The suppression of evidence and the inference of innocence

Journal of Criminal Law and Criminology

Volumn 100, Issue 2, 2010, Pages 415-474

  Jones, Cynthia E ^a  

^a AMERICAN UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 78149445370     PISSN: 00914169     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (225)

1. See DOJ Press Conference on Stevens' Indictment (Fox News television broadcast July 29, 2008); see also U.S. Dep't of Justice, Transcript of Press Conference with Acting Assistant Attorney General Matthew Friedrich on Indictment of U.S. Senator 3 (July 29, 2008), available at http://www.usdoj.gov/opa/pr/2008/July/pin-stevens-pressconference transcript.pdf.
2. Indictment, United States v. Stevens, 593 F. Supp. 2d 177 (D.D.C. 2009) (No. 1), 2008 WL 284791.
3. DOJ Press Conference on Stevens' Indictment, supra note 1.
4. Transcript of Motion Hearing at 4-5, 45-46, United States v. Stevens, 593 F. Supp. 2d 177 (D.D.C. 2009) (No. 374).
5. Neil A. Lewis, Justice Dept. Moves to Void Stevens Case, N.Y. TIMES, Apr. 2, 2009, at A1, available at http://www.nytimes.com/2009/04/02/us/politics/02stevens.html.
6. 373 U.S. 83 (1963).
7. Napue v. Illinois, 360 U.S. 264 (1959).
8. Indictment, supra note 2.
9. Id.
10. Specifically, Stevens was charged with violating 18 U.S.C. § 1001(a)(2) (2006), which penalizes any person "within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, [who] knowingly and willfully ... makes any materially false, fictitious, or fraudulent statement or representation." The statute was enacted as part of the Ethics in Government Act of 1978 and requires every elected United States Senator to file a financial disclosure form every year they are in office. The purpose of the filing requirement is to monitor and deter conflicts of interest. Senators are required to disclose their income, assets, gifts, financial interests, and liabilities from the previous year, including gifts over $250 or $300, and liabilities in excess of $10,000. Indictment, supra note 2.
11. Indictment, supra note 2.
12. Moreover, Stevens maintained that his wife directly oversaw the renovation project and had taken out a second mortgage to pay over $160,000 to VECO for the renovations, an amount they believed was the full cost of the services provided. See Neil A. Lewis, Closing Arguments in Stevens Trial, N.Y. TIMES, Oct. 21, 2008, at A19, available at http://www.nytimes.com/2008/10/22/washington/22stevens.html; Stevens Says, 'I am innocent' After Corruption Convictions, CNNPOLITICS.COM, Oct. 27, 2008, http://www.cnn.com/2008/POLITICS/10/27/stevens.jurors/index.html.
13. Transcript of Motion Hearing, supra note 4, at 4-5.
14. Id.
15. Senator Stevens's Motion to Dismiss Indictment or For a Mistrial at 1-9, United States v. Stevens, 593 F. Supp. 2d 177 (D.D.C. 2009) (No. 08-231).
16. See Minute Order, United States v. Stevens, 593 F. Supp. 2d 177 (D.D.C. 2009) (on file with author).
17. Transcript of Motion Hearing, supra note 4, at 6.
18. Actually, the testimony was that Allen should not worry about getting the letter requesting the bill because "Ted is just covering his ass." Transcript of Motion Hearing, supra note 4, at 21.
19. Id. at 21-22.
20. Id. at 24-25.
21. Specifically, the Attorney General stated: I have concluded that certain information should have been provided to the defense for use at trial. In light of this conclusion, and in consideration of the totality of the circumstances of this particular case, I have determined that it is in the interests of justice to dismiss the indictment and not proceed with a new trial. Press Release, U.S. Dep't of Just., Statement of Attorney General Eric Holder Regarding United States v. Theodore F. Stevens (Apr. 1, 2009), available at http://www.usdoj.gov/ opa/pr/2009/April/09-ag-288.html.
22. Transcript of Motion Hearing, supra note 4, at 46. Judge Sullivan also remarked: "In nearly 25 years on the bench, I have never seen anything approaching the mishandling and misconduct I have seen in this case." James Oliphant, Prosecutors Now Target of Inquiry, L.A. TIMES, Apr. 8, 2009, at 1, available at http://articles.latimes.com/2009/apr/08/nation/ na-stevens8.
23. Transcript of Motion Hearing, supra note 4, at 46. The court acted pursuant to Federal Rule of Criminal Procedure 42, which also authorized the court to appoint an independent attorney to prosecute the case against the prosecutors. This rule of procedure states, in relevant part: "Any person who commits criminal contempt may be punished for that contempt after prosecution on notice... . The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney." FED. R. CRIM. P. 42(a)(2).
24. Prior to being criminally charged, Stevens had served six terms in the U.S. Senate, winning re-election five times. Biographical Directory of the United States Congress, http://bioguide.congress.gov/scripts/biodisplay.pl?index=s000888. When the charges were filed in July 2008, Stevens was in the middle of re-election to his seventh term in office. It was widely believed that he would almost certainly be re-elected. Lewis, supra note 5. Even though the guilty verdict was announced less than two weeks before the election, he was only narrowly defeated by the democratic challenger, Mark Begich. William Yardley, Senator Stevens Hanging by a Thread in Alaska as the Ballot Counting Continues, N.Y. TIMES, Nov. 6, 2008, at P17, available at http://www.nytimes.com/2008/11/06/us/politics/ 06alaska.html. As was widely speculated prior to the election, the loss of the "reliably Republican" Stevens seat had a far greater impact on the national political landscape because the Democratic Party was poised to (and did) win a powerful sixty-seat majority in the Senate, a feat that would not have been possible if Stevens had won re-election. Alaska Sen. Ted Stevens Loses Re-Election Bid to Mark Begich, ABCNEWS.COM, Nov. 18, 2008, http://blogs.abcnews.com/politicalradar/2008/11/alaska-sen-ted.html.
25. Kim Eisler, Sen. Ted Stevens Hires Super-Lawyer Brendan Sullivan, WASHINGTONIAN.COM, July 1, 2007, http://www.washingtonian.com/articles/ capitalcomment/4457.html.
26. Transcript of Motion Hearing, supra note 4, at 6-7. Stevens's lead defense lawyer, Brendan Sullivan, likewise lamented to the trial judge, "[A]s hard as you try to make it fair[,] ... we are no match for corrupt prosecutors if they want to hide information known only to them or they want to present false testimony." Id. at 30.
27. 983 A.2d 363 (D.C. 2009).
28. Berger v. United States, 295 U.S. 78, 88 (1935).
29. 373 U.S. 83 (1963).
30. Id. at 87-88.
31. Id.
32. Kyles v. Whitley, 514 U.S. 419, 436-38 (1995).
33. 540 U.S. 668, 669 (2004).
34. United States v. Bagley, 473 U.S. 667, 675-76 (1985).
35. LAURAL L. HOOPER, JENNIFER E. MARSH & BRIAN YEH, FED. JUDICIAL CTR., TREATMENT OF BRADY V. MARYLAND MATERIAL IN UNITED STATES DISTRICT AND STATE COURTS' RULES, ORDERS, AND POLICIES 12-14, 25-38 (2007) [hereinafter Brady Report], available at http://www.fjc.gov/public/pdf.nsf/lookup/bradyma2.pdf/$file/brady ma2.pdf. But see DIST. MASS. LOCAL R. 116.2(A), available at http://www.mad.uscourts.gov/ general/pdf/combined01.pdf (providing a definition for "exculpatory evidence"); DIST. OF KAN., GENERAL ORDER OF DISCOVERY AND SCHEDULING, available at http://www.ksd.uscourts.gov/forms/index.php (listing specific categories of Brady evidence subject to disclosure); TASK FORCE ON WRONGFUL CONVICTIONS, N.Y. STATE BAR ASS'N, FINAL REPORT OF THE NEW YORK STATE BAR ASSOCIATION'S TASK FORCE ON WRONGFUL CONVICTIONS 23-24 (2009), available at http://www.nysba.org/Content/ContentFolders/ TaskForceonWrongfulConvictions/FinalWrongfulConvictionsReport.pdf (discussing various categories of Brady evidence).
36. E.g., Arline v. State, 294 N.E.2d 840 (Ind. Ct. App. 1973) (ordering new trial in selfdefense case where prosecution failed to disclose the weapon used by decedent during altercation); Branch v. State, 469 S.W.2d 533 (Tenn. Crim. App. 1969) (finding error where defendant claimed self-defense to murder charges and gave uncorroborated testimony that the knife-wielding decedent aggressively attacked him immediately before the fatal encounter, prosecution suppressed evidence that a citizen gave police a knife purportedly belonging to the decedent that was found at or near the crime scene, and prosecutor argued in closing that there was no evidence to support the defense claim that the decedent was armed); Ex Parte Mowbray, 943 S.W.2d 461 (Tex. Crim. App. 1996) (mandating a new trial where prosecution intentionally withheld a blood spatter expert's report supporting the defense's theory that the victim committed suicide).
37. E.g., State v. Landano, 637 A.2d 1270 (N.J. Super. Ct. App. Div. 1994) (involving a Brady violation where defendant charged with killing a police officer and prosecutor concealed fingerprint and ballistics tests, which showed that the gun used to kill the police officer was used in an earlier armed robbery committed by state's chief witness).
38. See, e.g., People v. Jackson, 637 N.Y.S.2d 158, 161-62 (N.Y. Sup. Ct. 1995) ("Even if the Assistant District Attorney 'had valid reasons to consider this witness to be unreliable, [he] should nonetheless have provided the defense with this important exculpatory information which was clearly Brady material.'" (quoting People v. Robinson, 133 A.D.2d 859, 860 (N.Y. App. Div. 1987))); People v. Springer, 122 A.D.2d 87, 88 (N.Y. App. Div. 1986) (reversing the conviction and dismissing the indictment where prosecutor intentionally destroyed surveillance videos relevant to the sole critical issue even though the prosecutor claimed that he believed "the photographs showed nothing that would be of value in an identification procedure").
39. See, e.g., People v. Thomas, 71 A.D.2d 839 (N.Y. App. Div. 1979) (finding a Brady violation during prosecution of two African-American defendants where government suppressed witness statements describing perpetrators as two white males); see also cases cited infra note 44.
40. See, e.g., Padgett v. State, 668 So. 2d 78 (Ala. Crim. App. 1995) (finding a Brady violation where prosecutor failed to timely disclose new blood test results revealing that the blood sample used to match defendant's DNA to the crime was inconsistent with defendant's blood); Nelson v. Zant, 405 S.E.2d 250, 252 (Ga. 1991) (reversing capital murder conviction where government knowingly suppressed exculpatory FBI forensic report which had concluded that the hair sample used to connect the defendant to the victim was "not suitable for significant comparison purposes"); see also Innocence Project, Know the Cases: Roy Brown, http://www.innocenceproject.org/Content/425.php (last visited Feb. 2, 2010). At trial, the government introduced testimony of an expert witness that a bite mark on the victim's body was "entirely consistent" with the defendant and suppressed the fact that another expert had examined the bite mark before trial and excluded the defendant as the source. Id.
41. E.g., Bloodsworth v. State, 512 A.2d 1056 (Md. 1986) (reversing a murder conviction based on brutal rape and murder of small girl where government suppressed a police report discussing another suspect who was found in the woods near the body, had a red spot of blood on his shirt when interviewed by police, and who had the underwear of a small girl in his car); State v. Munson, 886 P.2d 999, 1003 (Okla. Crim. App. 1994) (reversing a conviction based in part on the failure to disclose existence of another prime suspect with a similar modus operandi who was seen at the scene of the crime on the night of the murder); Cook v. State, 940 S.W.2d 623, 625 (Tex. Crim. App. 1996) (finding that the government did not reveal the existence of a person who had a motive to kill victim and had threatened to kill victim shortly before her death).
42. Napue v. Illinois, 360 U.S. 264, 269 (1959).
43. Silva v. Brown, 416 F.3d 980, 987 (9th Cir. 2005); see, e.g., Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997) (granting habeas relief in murder case where state failed to disclose evidence that government's star witness was known to be a "pathological liar" and a "prolific career burglar"); Cook, 940 S.W.2d at 625 (finding a Brady violation where government failed to disclose that witness was believed to be "mentally and emotionally unstable" and "a pathological liar").
44. E.g., Commonwealth v. Ellison, 379 N.E.2d 560 (Mass. 1978) (failing to disclose initial pretrial statements of co-defendants, which did not name the defendant as one of the participants in the crime and which contradicted their subsequent statements and trial testimony); State v. Landano, 637 A.2d 1270 (N.J. Super. Ct. App. Div. 1994) (finding a Brady violation where prosecutor suppressed evidence showing that the only eyewitness to the crime specifically eliminated the defendant as the perpetrator during pretrial photo identification procedure); Texas v. Adams, 768 S.W.2d 281 (Tex. Crim. App. 1989) (suppressing crime victim's pretrial statement that was diametrically opposed to her trial testimony as well as her failure to identify defendant at police line-up).
45. E.g., Jean v. Rice, 945 F.2d 82, 87 (4th Cir. 1991) (failing to disclose records of the victim's hypnosis, which were used to enhance the victim's testimony); United States v. Sterba, 22 F. Supp. 2d 1333, 1334-40 (M.D. Fla. 1998) (failing to disclose "severe credibility problems" of key government witness, including a history of mental health and substance abuse, as well the witness' prior guilty plea to lying under oath in a case that led to the arrest of an innocent man); Munson, 886 P.2d at 1003 (failing to reveal the fact that testimony of one witness was hypnotically induced).
46. E.g., Banks v. Dretke, 540 U.S. 668, 700 (2004) (vacating death sentence and remanding case based in part on prosecution's nondisclosure of financial payments, cooperation agreements, and other impeachment evidence involving the state's two chief witnesses); Guerra v. Johnson, 90 F.3d 1075, 1078-80 (5th Cir. 1996) (finding that prosecutor intimidated and threatened three juvenile witnesses to identify the defendant as the shooter); State v. Spurlock, 874 S.W.2d 602 (Tenn. Crim. App. 1993) (ordering a new trial where prosecution failed to disclose that a key witness implicated the defendant on recorded interview only after being promised release from jail); Ex parte Brandley, 781 S.W.2d 886 (Tex. Crim. App. 1989) (finding that key government witnesses were threatened, choked, and manhandled by law enforcement officers prior to falsely implicating the defendant in the murder).
47. See, e.g., Napue, 360 U.S. 264; Pyle v. Kansas, 317 U.S. 213 (1942); United States v. Kelly, 35 F.3d 929, 932-37 (4th Cir. 1994) (finding that prosecutor allowed key government witness to give unimpeached testimony that was either patently false or seriously misleading and which severely undercut the defense); United States v. Kojayan, 8 F.3d 1315, 1322 (9th Cir. 1993) (failing to disclose government informant status and cooperation agreement with a key government witness); People v. Jimerson, 652 N.E.2d 278 (Ill. 1995) (finding error where government witness who had agreement with government for reduced charges committed perjury in denying the existence of any inducement to testify at trial and prosecutor failed to correct the false testimony); People v. Perkins, 686 N.E.2d 663, 669 (Ill. App. Ct. 1997) (finding prosecution's failure to correct government witness' false testimony that he received no favorable treatment in exchange for his testimony was intentional where "[o]ne of the prosecutors who tried this case participated in the earlier negotiations" with the witness to secure testimony).
48. See, e.g., Banks, 540 U.S. at 700-02; Carriger, 132 F.3d at 470.
49. E.g., Landano, 637 A.2d at 1271 ("[The] State suppressed evidence that its principal identification witness was under investigation for having ties with organized crime, and was suspected of having engaged in loan sharking and money laundering, and further, that on the very day his earlier tentative identification of defendant became positive, he was questioned about whether he paid illegal gratuities to [murdered police officer] where defendant was convicted of killing a police officer.").
50. See, e.g., Giglio v. United States, 405 U.S. 150, 154-55 (1972).
51. The Court has made clear that the materiality determination is synonymous with the prejudice analysis. See Kyles v. Whitley, 514 U.S. 419, 435-40 (1995); United States v. Bagley, 473 U.S. 667, 674-75 (1985).
52. Kyles, 514 U.S. at 435.
53. E.g., United States v. Jackson, 345 F.3d 59, 73-74 (2d Cir. 2003) (finding no Brady violation where suppressed impeachment evidence merely furnished an additional basis on which to impeach a witness whose credibility had already been shown to be questionable); United State v. Gil, 297 F.3d 93, 103 (2d Cir. 2002) (holding that materiality standard is less likely met where evidence of guilt is overwhelming).
54. Kyles, 514 U.S. at 434. If the defendant does not make this showing, reviewing courts commonly rule that, although it was error for the prosecutor to suppress favorable evidence, in light of the evidence of guilt adduced at trial, the suppressed evidence was not material.
55. United States v. Agurs, 427 U.S. 97, 110 (1976).
56. E.g., Brown v. Borg, 951 F.2d 1011, 1015 (9th Cir. 1991) ("The prosecutor's actions in this case are intolerable. Possessed of knowledge that destroyed her theory of the case ... she kept the facts secret ... and then presented testimony in such a way as to suggest the opposite of what she alone knew to be true."); People v. Perkins, 686 N.E.2d 663, 669 (Ill. App. Ct. 1997); State v. Spurlock, 874 S.W.2d 602, 620 (Tenn. Crim. App. 1993) ("[T]he prosecution made every effort to suppress the recordings. The prosecution knew if the material contained on these tapes was conveyed to defense counsel ... the credibility of [the prosecution's chief witness] would have been completely destroyed [and the defendant would have been acquitted].").
57. E.g., United States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir. 1993) (stating that the prosecutor "did everything he could to keep the defense from learning" of the existence and nature of the government's cooperation agreement with witness); State v. Landano, 637 A.2d 1270, 1287 (N.J. Super. Ct. App. Div. 1994) (holding that "it is apparent that the State deliberately concealed evidence" implicating the government's two witnesses in the crime the defendant was charged with committing).
58. E.g., United States v. Sterba, 22 F. Supp. 2d 1333, 1334-40 (M.D. Fla. 1998) (finding that where the government "knowingly disguise[ed] the identity of a government witness and deceptively" allowed the witness to testify under oath and give a false name "[t]he conception and implementation of this plan was intentional and calculated to deprive the defense of its right of confrontation. It almost succeeded."); Price v. State Bar, 30 Cal. 3d 537 (Cal. 1982) (convicting defendant after prosecutor altered date and time of taxi cab receipt to place defendant at the scene of the crime, destroyed original evidence supporting the defendant's alibi, and introduced the false evidence at trial).
59. E.g., Arline v. State, 294 N.E.2d 840, 844 (Ind. Ct. App. 1973) (finding that despite pretrial receipt of knife used by decedent to cut defendant during fatal encounter in selfdefense case, prosecutor "exaggerated [the knife's] absence in evidence," strongly suggesting to the jury that the knife did not exist); Ex parte Mowbray, 943 S.W.2d 461, 465 (Tex. Crim. App. 1996) (finding that prosecutors "engaged in a deliberate course of conduct" to keep exculpatory evidence away from defense counsel).
60. In a study of the first seventy-four DNA-based exonerations, the Innocence Project found that the initial wrongful conviction was caused, in part, by Brady violations. Specifically, the study found that 37% of the cases involved the suppression of exculpatory evidence, 25% involved the knowing use of false testimony, and 11% involved the undisclosed use of coerced witness testimony. BARRY SCHECK, JIM DWYER & PETER NEUFELD, ACTUAL INNOCENCE (1st ed. 2001); Innocence Project, Understand the Causes, http://www.innocenceproject.org/understand/ (follow the Forensic Science Misconduct and Government Misconduct hyperlinks) (last visited Feb. 2, 2010); see also CTR. FOR PUB. INTEGRITY, HARMFUL ERROR: INVESTIGATING AMERICA'S LOCAL PROSECUTORS 91-100 (2003) [hereinafter HARMFUL ERROR] (citing twenty-eight cases where prosecutorial misconduct, most commonly Brady violations, significantly contributed to the wrongful conviction of people who were later exonerated).
61. E.g., Carter v. Rafferty, 621 F. Supp. 533, 548 (D.N.J. 1985) (granting habeas relief in the case of famed boxer Rubin "Hurricane" Carter where the prosecution purposely misrepresented the results of a polygraph test given to its key witness in order to manipulate the witness into abandoning his recantation and giving the inculpatory testimony at the retrial that placed defendants at the scene of the crime); People v. Ramos, 614 N.Y.S.2d 977, 982-84 (N.Y. App. Div. 1994) (finding that defense was denied powerful impeachment evidence in child sexual assault trial where the government argued that the child's extensive knowledge of sexual activity stemmed from sexual abuse by defendant but suppressed documents showing that child had an unusually advanced knowledge and sophistication regarding sexual matters well before the alleged sexual assault); Ex parte Adams, 768 S.W.2d 281, 293 (Tex. Crim. App. 1989) (finding in murder case that "the State was guilty of suppressing evidence favorable to the accused, deceiving the trial court during [the] trial, and knowingly using perjured testimony").
62. E.g., JAMES S. LIEBMAN, JEFFREY FAGAN & VALERIE WEST, A BROKEN SYSTEM: ERROR RATES IN CAPITAL CASES, 1973-1995 5 (2000), available at http://www2.law.columbia.edu/ instructionalservices/liebman/liebman_final.pdf (documenting Brady violations in 16% to 19% of capital cases); DEBATING THE DEATH PENALTY (Hugo Adam Bedau & Paul G. Cassell eds., 2004) (finding that 35 out of 350 wrongful convictions based on wrongful suppression of evidence); Ames Alexander & Liz Chandler, Errors, Inequities Often Cloud Capital Cases in the Carolinas, CHARLOTTE OBSERVER, Sept. 10, 2000, at 1A (stating that in "North Carolina since 1977[,] ... [c]ourts have overturned more than 25 death sentences, many based on findings that prosecutors hid evidence, made improper arguments, or broke other rules").
63. Brown v. Wainwright, 785 F.2d 1457, 1458-59 (11th Cir. 1986) (vacating 1974 capital murder convictions upon finding that the prosecutor failed to step forward when the only witness at trial to place the defendant at the scene of the crime and the only witness to testify to incriminating admissions by the defendant falsely testified that he had not received immunity from the government in exchange for his testimony).
64. See ANGELA J. DAVIS, ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR 133 (2007); see also Banks v. Dretke, 540 U.S. 668 (2004).
65. E.g., State v. Moore, 969 So. 2d 169 (Ala. Crim. App. 2006) (vacating death sentence and ordering a new trial due to nondisclosure of exculpatory information in FBI reports); Commonwealth v. Smith, 615 A.2d 321, 322-25 (Pa. 1992) (reversing death sentence upon finding that the government's "intentional suppression" of extremely "exculpatory physical evidence" while arguing in favor of the death sentence on direct appeal "constitute[s] prosecutorial misconduct such as violat[ing] all principles of justice and fairness").
66. See Guerra v. Johnson, 90 F.3d 1075, 1078-80 (5th Cir. 1996); Brown v. Wainwright, 785 F.2d 1457, 1458-59 (11th Cir. 1986); Padgett v. State, 668 So. 2d 78 (Ala. Crim. App. 1995); Nelson v. Zant, 405 S.E.2d 250, 252-53 (Ga. 1991); Taylor Bright, Guilty Until Proven Innocent?, BIRMINGHAM POST-HERALD, Dec. 14, 2001, available at http://www.patrickcrusade.org/execution_2_5.htm (reporting that after court ordered a new trial, District Attorney decided not to prosecute former condemned prisoner); Jingle Davis & Mark Curriden, Condemned Man Is Freed After Repeal, ATLANTA J. CONST., Nov. 7, 1991, at E2 (reporting that prosecutors decided they could not re-prosecute Gary Zant following the reversal of his capital murder conviction for the rape and murder of a six-year-old girl); Sydney P. Freedberg, Freed from Death Row, ST. PETERSBURG TIMES, July 4, 1999, at 8A, available at http://www.sptimes.com/News/70499/State/yesangry.shtml (stating that after twelve years in prison, on remand, the prosecutor's office opted not to retry the case against Joseph Greene Brown and the former death row inmate was released after over five years on death row); Mexican Long Held in Texas Murder Wins His Freedom, N.Y. TIMES, Apr. 17, 1997, at A16, available at http://www.nytimes.com/1997/04/17/us/mexican-long-held-in texas-murder-wins-his-freedom.html (reporting that Ricardo Aldape Guerra had spent over fifteen years in prison and, at one point, came within three days of execution); see also Chevel Johnson, No Retrial in New Orleans Killing, ASSOCIATED PRESS ONLINE, Jan. 9, 1999 (stating that the youngest person ever sentenced to death row at age seventeen, Shareef Cousins, was given a new trial in a case involving Brady violations, but the sentence was ultimately reversed on other grounds because prosecutors did not have enough evidence to pursue the case a second time).
67. See, e.g., Moore, 969 So. 2d at 185; State v. Munson, 886 P.2d 999, 1003 (Okla. Crim. App. 1994); Richard L. Fricker, State Falters in Retrial of Escaped Con, A.B.A. J., June 1995, at 38 (describing the acquittal of Adolph Munson at re-trial after ten years on death row); Death Penalty Info. Ctr., Exonerations: Jury Acquits Former Death Row Inmate of All Charges, http://www.deathpenaltyinfo.org/exonerations-jury-acquits-former-death-r owinmate- all-charges (last visited Jan. 19, 2010) (describing the acquittal of a man on all counts in third trial after nearly ten years on death row).
68. Ryan Issues Blanket Clemency, CHI. TRIB., Jan. 12, 2003, at 14, available at http://www.chicagotribune.com/media/flash/2003-01/6205191.pdf. Madison Hobley, who spent eighteen years in prison, most of it on death row, was pardoned by Governor Ryan in Illinois during his mass purge of prisoners on death row. Id.
69. Dave Von Drehle, Murder Suspects Will Plead Guilty, Leave Court Free, SAN JOSE MERCURY NEWS, Jan. 15, 1988, at 2G, available at 1988 WLNR 468637 ("U.S. District Judge George Carr found that detectives deliberately suppressed evidence that might have pointed to the innocence of Jent and Miller ... [and that] [t]he State of Florida demonstrated 'a callous and deliberate disregard for the fundamental principles of truth and fairness that underlie our criminal system.'").
70. Smith, 615 A.2d 321; Death Penalty Info. Ctr., Innocence Cases: 1984-1993, http://www.deathpenaltyinfo.org/innocence-cases-1984-1993 (last visited Feb. 5, 2010) (describing the ultimate disposition in the Smith case where defendant's original death sentence was reduced to life in prison).
71. See Ken Armstrong & Maurice Possley, The Verdict: Dishonor, CHI. TRIB., Jan. 10, 1999, at 1, available at http://www.chicagotribune.com/news/nationworld/chi-dptrialerrorspecial, 0,632955.special. Of the sixty-seven death row inmates granted new trials due to Brady violations, twenty-four were freed because charges were dropped, they were acquitted at re-trial, or they were given full pardons. Three plead guilty in return for their immediate release from prison, twenty-five others were convicted again (but did not receive the death penalty), and only four returned to death row. Id.
72. See, e.g., Moore, 969 So. 2d at 175 (noting that the prosecutor testified that "he never intended to withhold exculpatory information and that he did not consider some of the materials to be exculpatory").
73. See United States v. Coppa, 267 F.3d 132, 135 (2d Cir. 2001); United States v. Presser, 844 F.2d 1275, 1283 n.9 (6th Cir. 1988) ("[D]isclosure in time for effective use at trial is all that the Brady doctrine requires."); WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE 1143 (5th ed. 2009).
74. Coppa, 267 F.3d at 142.
75. E.g., Padgett v. State, 668 So. 2d 78 (Ala. Crim. App. 1995) (finding that a mid-trial four-day delay prior to disclosure of exculpatory information constitutes a Brady violation); People v. Jackson, 637 N.Y.S.2d 158 (N.Y. Sup. Ct. 1995) (discussed supra notes 134-137 and accompanying text); Page v. Roberts, 611 N.Y.S.2d 214 (N.Y. App. Div. 1994) (granting new trial when district attorney kept exculpatory statement for over a year until the day prior to the start of trial when witness could no longer be found).
76. See, e.g., United States v. Safavian, 233 F.R.D. 12, 16 (D.D.C. 2005) ("Most prosecutors are neither neutral (nor should they be) nor prescient, and any such judgment [on materiality] necessarily is speculative on so many matters that simply are unknown and unknowable before trial begins ... .").
77. United States v. Agurs, 427 U.S. 97, 108 (1976).
78. See United States v. Bagley, 473 U.S. 667, 700 (1985) (Marshall & Brennan, JJ., dissenting).
79. Agurs, 427 U.S. at 108; see also Kyles v. Whitley, 514 U.S. 419, 439 (1994).
80. LAFAVE, supra note 73, § 24.3(b) at 1147-48 (noting that trial courts are reluctant to review prosecutor's files to determine whether they have undisclosed Brady material); cf. Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987) (limiting authority of the court to impose in camera review for disputed Brady material).
81. United States v. Arnold, 117 F.3d 1308 (11th Cir. 1997) (stating that exculpatory contents of a tape recording were obtained by defense post-trial when prosecutor inadvertently sent transcripts of the tapes to the defense attorney); see McMillian v. State, 616 So. 2d 933, 945 (Ala. Crim. App. 1993) (involving a tape recording inadvertently given to defense counsel wherein the sheriff and other law enforcement officers were threatening the government's star witness to force him to falsely implicate McMillan); Armstrong & Possley, supra note 71 (discussing the case of James Richardson who was wrongly convicted in Florida and served twenty-one years in prison before exculpatory evidence was "stolen from a prosecutor's office by a man dating the prosecutor's secretary"; also reporting on other cases wherein exculpatory evidence was discovered after "a judge directed the U.S. marshal to seize the prosecutors' documents, or because newspapers sued under the Freedom of Information Act, or because of anonymous tips, conversations accidentally overheard or papers spied in a prosecutor's hand"); see also Joseph R. Weeks, No Wrong Without a Remedy: The Effective Enforcement of the Duty of Prosecutors to Disclose Exculpatory Evidence, 22 OKLA. CITY U. L. REV. 833, 869 (1997) (stating that judicial opinions involving Brady violations "appear in the reporters only because the criminal defendant, deprived of any knowledge of exculpatory evidence by the prosecutor's refusal to disclose it, was nevertheless able my some other means (often highly fortuitous) to discover its existence").
82. E.g., Banks v. Dretke, 540 U.S. 668, 675 (2004) (noting that "long suppressed evidence came to light" after attorneys for death row defendant received affidavits from government witnesses detailing that, contrary to trial testimony, and the representations of prosecutors, witnesses were coached, paid for their testimony and threatened with incarceration if they did not provide false inculpatory testimony against the defendant); State v. Moore, 969 So. 2d 169, 173 (Ala. Crim. App. 2006) (stating that defense was alerted to exculpatory information by witness who contacted defense counsel after trial); State v. Cousin, 710 So. 2d 1065, 1067 n.2 (La. 1998) (stating that the defense learned "through an anonymous communication" during the penalty phase of a capital case that eyewitness who identified defendant as murderer previously told police that she could not identify the gunman because she did not get a good look at him, was not wearing her glasses, and could only see shapes and patterns).
83. Banks, 540 U.S. at 696.
84. See BENNETT L. GERSHMAN, PROSECUTORIAL MISCONDUCT §§ 5:1, 5:3 (2d ed. 2002) ("Nondisclosure of exculpatory evidence by prosecutors ... account[s] for more miscarriages of justice than any other type of prosecutorial infraction.").
85. See Armstrong & Possley, supra note 71; see also HARMFUL ERROR, supra note 60, at i (reporting that a three-year study of over eleven thousand reported opinions involving prosecutorial misconduct (including Brady violations) found that over two thousand cases led to reversal of conviction and twenty-eight defendants were later exonerated); see also Bill Moushey, Win at All Costs, PITTSBURGH POST-GAZETTE, Nov. 22, 1998, at A1, available at http://www.post-gazette.com/win/ (documenting, in a ten-part series, a two-year investigation into prosecutorial misconduct (including Brady violations) across the country).
86. Armstrong & Possley, supra note 71.
87. TASK FORCE ON WRONGFUL CONVICTIONS, supra note 35, at 26 (citing numerous New York cases involving Brady violations and stating that "despite the clarity and longevity of the Brady rule, a sampling of recent published or otherwise available decisions show such conduct still occurs").
88. Randall D. Eliason, The Prosecutor's Role: A Response to Professor Davis, AM. U. CRIM. L. BRIEF, Fall 2006, at 15, 17-18, available at http://www.wcl.american.edu/journal/ clb/documents/CriminalLawBrief-VolIIIssueI-Fall2006.pdf?rd=1 (commenting that given the number of prosecutors in the country (over 35,000) and the number of criminal cases prosecuted each year (twenty million in state courts and 70,000 in federal courts), the incidences of prosecutorial misconduct are extremely small).
89. Id. at 20 (dismissing statistics from Harmful Error study which found serious prosecutorial misconduct (including Brady violations) in a total of two thousand cases (average of sixty-six cases per year) as statistically insignificant because "sixty-six cases per year out of several million is a vanishingly small number. Even if the true incidence of prosecutorial misconduct, reported and unreported, were 500 times greater than what was found[,] ... it would still involve only about one percent of all serious criminal cases filed in a year." (emphasis omitted)).
90. Id. at 17 ("[T]he vast majority of prosecutors are dedicated public servants striving to do a difficult job in an ethical and honorable way.").
91. HARMFUL ERROR, supra note 60, at 110 (providing a copy of a letter from an Oregon prosecutor stating that prosecutorial misconduct is "episodic" and not "epidemic," and stating that "prosecutors continue to be subject to the harshest sanctions on those truly rare occasions when they violate their oaths").
92. TASK FORCE ON WRONGFUL CONVICTIONS, supra note 35, at 36 n.11. In response to a proposal to have a mandatory Brady conference with the trial judge in criminal cases, dissenting Task Force members argued that "mandating a pretrial conference in every case for judicial review of the prosecutor's file impermissibly allows the judicial branch to intrude into the exclusive domain of a member of the executive branch, the prosecutor, in the advocacy determination of what to disclose and when; weakens the adversary system and the vigorous performance of the prosecutor's function." Id. (citations omitted).
93. Eliason, supra note 88, at 21 (citing the state bar disciplinary process and the Department of Justice Office of Professional Responsibility as powerful sources of "professional repercussions" for errant prosecutors who engage in misconduct).
94. E.g., CAL. COMM'N ON THE FAIR ADMIN. OF JUSTICE, FINAL REPORT 77 (Gerald Uelmen ed., 2008) (discussing judicial reluctance to refer lawyers for professional discipline for Brady misconduct), available at http://www.ccfaj.org/documents/CCFAJFinalReport.pdf; see also TASK FORCE ON WRONGFUL CONVICTIONS, supra note 35, at 28-29; Robert P. Mosteller, The Duke Lacrosse Case, Innocence, and False Identifications: A Fundamental Failure to "Do Justice", 76 FORDHAM L. REV. 1337 (2007); Paul J. Speigelman, Prosecutorial Misconduct in Closing Argument: The Role of Intent in Appellate Review, 1 J. APP. PRAC. & PROCESS 115, 170 (1999) (noting that of forty-five recent federal cases where convictions were reversed due to "intentional misconduct and extensive criticism of prosecutors' conduct, not one court ordered a prosecutor disciplined or referred a prosecutor for discipline"); Ellen Yaroshefsky, Wrongful Convictions: It Is Time to Take Prosecution Discipline Seriously, 8 UDC/DCSL L. REV. 275 (2004) (advocating the creation of an independent commission to examine wrongful convictions cases and enforce disciplinary rules for prosecutors).
95. Richard A. Rosen, Disciplinary Sanctions Against Prosecutors for Brady Violations: A Paper Tiger, 65 N.C. L. REV. 693 (1987) (discussing the results of a nation-wide empirical study of state bar disciplinary actions for Brady violations and finding few prosecutors are referred and even fewer are actually disciplined); see ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 09-454 (2009) (discussing Rule 3.8(d) of the Model Rules of Professional Conduct, which defines the scope of the prosecutor's duty to make timely disclosure of exculpatory evidence under ethics rules independent of the constitutional disclosure duty); see also HARMFUL ERROR, supra note 60, at 81-90. But see Amended Findings of Fact, Conclusions of Law and Order of Discipline, N.C. State Bar v. Nifong, No. 06 DHC 35 (Disciplinary Hearing Comm'n July 24, 2007), available at http://www.ncbar.gov/Nifong%20Final%20Order.pdf. In the high profile investigation of allegations that an African-American woman was gang-raped at an off-campus party hosted by college students who were members of the Duke University lacrosse team, the prosecutor violated Brady by suppressing exculpatory DNA results that excluded the defendants and by instructing a doctor to withhold such evidence from his medical report. The prosecutor was held in contempt following an independent investigation. Id. See generally Angela J. Davis, The Legal Profession's Failure to Discipline Unethical Prosecutors, 36 HOFSTRA L. REV. 275 (2007).
96. Walker v. City of New York, 974 F.2d 293, 301 (2d Cir. 1992) (finding that the district attorney's failure to train employees on their Brady obligations and "the duty not to lie or persecute the innocent" subjected her to liability under 28 U.S.C. § 1983); see also Yarris v. County of Delaware, 465 F.3d 129, 132, 137 (3d Cir. 2006) (following reprosecution of defendant by the same prosecutor who "allegedly slammed his case file against the courtroom wall, screamed at [the defendant Yarris], 'Motherfucker, you'll never leave the county alive!' and spat in Yarris's face," and finding that prosecutor's conduct in destroying exculpatory evidence was not covered by absolute immunity).
97. Van de Kamp v. Goldstein, 129 S. Ct. 855 (2009) (holding that the chief deputy district attorney and district attorney were entitled to absolute prosecutorial immunity).
98. Weeks, supra note 81, at 879 (dismissing as improbable "the alternative of criminal sanctions for civil rights violations" due to Brady violations). But see United States v. Jones, 609 F. Supp. 2d 113 (D. Mass. 2009) (requiring the government to show cause why the court should not impose sanctions for Brady violation after the prosecutor failed to turn over the inconsistent statements of a police officer). Also, some state court rules and statutes expressly recognize contempt as a discovery sanction. E.g., LA. CODE CRIM. PROC. ANN. Art. 729.5(B) (2003) (stating that willful violation of discovery rule "shall be deemed to be a constructive contempt of court"); see also ARK R. CRIM. P. 19.7(b); FLA. R. CRIM. P. 3.220(n)(2); HAW. R. PENAL P. 16(9)(ii); ILL. SUP. CT. R. 415(g)(ii); MINN. R. CRIM. P. 9.03(8); VT. R. CRIM. P. 16.2(g)(2); WASH. SUP. CT. CRIM. R. 4.7(h)(7)(ii).
99. Weeks, supra note 81, at 879.
100. Brady Report, supra note 35, at 6. The proposed "Brady Amendment" to Rule 16 provided: Exculpatory or Impeaching Information. Upon a defendant's request, the government must make available all information that is known to the attorney for the government or agents of law enforcement involved in the investigation of the case that is either exculpatory or impeaching. The court may not order disclosure of impeachment information earlier than 14 days before trial. Id. at 23 app. A (emphasis omitted) (providing the text of the Brady Amendment); see also Am. Coll. of Trial Lawyers, Proposed Codification of Disclosure of Favorable Information Under Federal Rules of Criminal Procedure 11 and 16, 41 AM. CRIM. L. REV. 93 (2004).
101. Am. Coll. of Trial Lawyers, supra note 100, at 113.
102. See Brady Report, supra note 35, at 4. In opposition to the Rule 16 amendment, the Department of Justice (DOJ) argued before the Judicial Conference Advisory Committee on the Rules of Criminal Procedure ("Advisory Committee") that no codification of the Brady rule was warranted because the Brady disclosure obligation was already "clearly defined" under existing law. Id. at 6-7. Although DOJ opposed the amendment, DOJ representatives revised the Department of Justice Manual for United States Attorneys in an effort to more clearly define the scope of the Brady disclosure duty under existing law. See also id. at 6-7, 43 app. D (providing the text of United States Attorney's Policy Regarding Disclosure of Exculpatory and Impeachment Information, § 9-5.001). Following the Ted Stevens litigation, the federal judge who presided over the case, Judge Emmet Sullivan, wrote a letter to the Judicial Conference Advisory Committee urging reconsideration of the Brady Amendment to Rule 16. Letter from Judge Emmett G. Sullivan to Judge Richard C. Tallman, Chair, Judicial Conference Advisory Committee on the Rules of Criminal Procedure (Apr. 28, 2009) (on file with author). Judge Sullivan wrote: "An amendment to Rule 16 that requires the government to produce all exculpatory information to the defense serves the best interests of the court, the prosecution, the defense, and ultimately the public." Id.
103. CAL. COMM'N ON THE FAIR ADMIN. OF JUSTICE, supra note 94, at 87-91 (recommending that State Attorney General formulate and disseminate a written office policy to govern Brady compliance, create a "Brady list" of impeachment evidence against law enforcement officers/witnesses, and hold training programs on Brady disclosure compliance); see also JOHN F. TERZANO ET AL., IMPROVING PROSECUTORIAL ACCOUNTABILITY: A POLICY REVIEW 3-6 (2009), available at http://www.thejusticeproject.org/wp-content/uploads/pr-improving-prosecu torialaccountability1. pdf (recommending increased training for line prosecutors on Brady disclosure duties); TASK FORCE ON WRONGFUL CONVICTIONS, supra note 35, at 37-38 (recommending same).
104. ABA CRIM. JUSTICE SECTION'S AD HOC INNOCENCE COMM. TO ENSURE THE INTEGRITY OF THE CRIM. PROCESS, ACHIEVING JUSTICE: FREEING THE INNOCENT, CONVICTING THE GUILTY 1, 103 (2006) ("In light of the prosecutor's on-going obligation to disclose Brady material and the desire to provide all defendants with fair trial, prosecutors should establish guidelines and procedures for turning Brady evidence over to the defense and for receiving that information from its partners and agents, including police departments and laboratories."); CAL. COMM'N ON THE FAIR ADMIN. OF JUSTICE, supra note 94, at 12-16; TERZANO ET AL., supra note 103, at 7-8; Peter A. Joy, Brady and Jailhouse Informants: Responding to Injustice, 57 CASE W. RES. L. REV. 619, 641 (2007) (advocating for the head prosecutor to provide "clearer guidance that ensures complete compliance with Brady," and proposing "open file" discovery to give defense attorneys greater access to discoverable materials); see also Robert P. Mosteller, Exculpatory Evidence, Ethics, and the Road to the Disbarment of Mike Nifong: The Critical Importance of Full Open-File Discovery, 15 GEO. MASON L. REV. 257 (2008).
105. In United States v. Harrington, the government failed to disclose the existence of a witness who contradicted the trial testimony of the government's star witness and implicated that witness as the true perpetrator of the crime. The government claimed that it did not disclose the witness's pretrial statements to the defense because the government did not find the witness to be credible. In reversing the murder conviction, the trial judge stated: [B]oth the identity and the testimony of Ms. Gibson, unquestionably, without any doubt, should have been turned over to the defense well in advance of trial... . [T]he information about Ms. Gibson's identity and her information and her grand jury testimony and her police statement was withheld from the defense consciously, deliberately, and as a tactic, because I think the Government probably recognized it as not particularly favorable to their case, at a minimum, and may have recognized it as something that could be mischievous in the hands of a good defense lawyer... . In my opinion, it was patently disclosable, not a debatable point... . [T]he government's attempt to explain away the evidence that is, in my view obviously favorable to the accused, is unavailing largely for the reason pointed out by [defense counsel]: It's not for [the prosecutor] to decide whether Ms. Gibson would be believable ... it's for the jury to decide ... . Transcript of Hearing on Post-Trial Motion to Dismiss at 9-10, 13, United States v. Harrington, No. 2007-CF1-22855 (D.C. Sup. Ct. Apr. 17, 2009) (on file with author) (emphasis added).
106. Branch v. State, 469 S.W.2d 533 (Tenn. Crim. App. 1969) (arguing that a lack of proper chain-of-custody excused the prosecutor's failure to disclose the knife purportedly belonging to decedent that was given to the police shortly after a fatal brawl).
107. Gwen Filosa, Review Board Clears Prosecutor, TIMES-PICAYUNE, Sept. 25, 2004, at B1 (discussing statements made by Roger Jordan, a seasoned prosecutor in New Orleans, during a state bar disciplinary proceeding related to his prosecution of Shareef Cousins for capital murder); see also State v. Cousins, 710 So. 2d 1065, 1066-67 (La. 1998) (discussed supra note 66).
108. Lindsey v. King, 769 F.2d 1034, 1040 (5th Cir. 1985) ("As for the prosecutor's attempted explanation of his refusal to produce the police report[,] ... [i]t was for the jury, not the prosecutor, to decide whether the contents of an official police record were credible, especially where-as here-they were in the nature of an admission against the state's interest in prosecuting Lindsey. On such grounds as these, prosecutors might, on a claim that they thought it unreliable, refuse to produce any matter whatever helpful to the defense."); see, e.g., Shelton v. United States, 983 A.2d 363 (D.C. 2009) (discussed infra Part IV).
109. King, 769 F.2d at 1040.
110. Joy, supra note 104, at 631 (stating that until systemic reforms are implemented judges have the responsibility to take measures to curtail Brady violations).
111. Taylor v. Illinois, 484 U.S. 400, 409 (1988) ("The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence."); see also Michael D. Cicchini, Prosecutorial Misconduct at Trial: A New Perspective Rooted in Confrontation Clause Jurisprudence, 37 SETON HALL L. REV. 335, 344 (2007) ("[W]hen left unchecked [prosecutorial] misconduct undermines the integrity of the system itself, thereby threatening the equally important appearance of a fair trial... . [T]here is an incalculable cost in damaged integrity [to the judicial system itself] that may be difficult to repair[.]") (alteration in original) (emphasis omitted); Joy, supra note 104, at 628 ("When false testimony is introduced into evidence, or exculpatory evidence is withheld from the defendant for possible use at trial, the justice system is derailed."); Paul J. Speigelman, supra note 94, at 131 ("Intentional wrongdoing in court by perhaps the most critical member of the government law enforcement team calls into question the fairness and integrity of the trial.").
112. Taylor, 484 U.S. at 419 (Brennan, J., dissenting); Silva v. Brown, 416 F.3d 980, 991 (9th Cir. 2005) ("When prosecutors betray their solemn obligations and abuse the immense power they hold, the fairness of our entire justice system is called into doubt and public confidence in it is undermined.").
113. Kyles v. Whitley, 514 U.S. 419, 440 (1995) (stating that the disclosure duties imposed by the Brady doctrine "preserve the criminal trial, as distinct from the prosecutor's private deliberations, as the chosen forum for ascertaining the truth about criminal accusations").
114. Dale A. Nance, Evidentiary Foul Play: The Roles of Judge and Jury in Responding to Evidence Tampering, 7 INT'L COMMENT. ON EVIDENCE 3 (2009) (stating that deterrence of discovery misconduct is a goal of imposing discovery sanctions, but noting that sanctions are not designed to punish the litigant but constitute an "effort to protect the integrity of the system of adjudication by refusing to submit cases to the jury when they have been inappropriately prepared").
115. United States v. Kojayan, 8 F.3d 1315, 1324 (9th Cir. 1993) ("Quite as important as assuring a fair trial to the defendants now before us is assuring that the circumstances that gave rise to the misconduct won't be repeated in other cases."); State v. Kaiser, 486 N.W.2d 384 (Minn. 1982) (stating that reversal of conviction is sometimes warranted not simply to remedy a potentially unjust trial result, but as a means to provide the incentive to prosecutors to obey disclosure obligations); see also Weeks, supra note 81, at 913 ("By increasing substantially the risk of reversal as a sanction for suppression of exculpatory evidence, the ... standards might reasonably be expected to increase the degree of disclosure by prosecutors anxious to avoid this result."). See generally Cynthia E. Jones, The Right Remedy for the Wrongly Convicted: Judicial Sanctions for the Destruction of DNA Evidence, 77 FORDHAM L. REV. 2893, 2945 nn.288-89 (discussing the goals advanced by discovery sanctions).
116. See Thomas F. Liotti, The Uneven Playing Field, Part III or What's on the Discovery Channel, 77 ST. JOHN'S L. REV. 67, 74 (2003) (concluding that Brady violations must be met with "real remedies with serious consequences for prosecutors who fail to comply").
117. See LAFAVE, supra note 73, at 1143.
118. Id.
119. See Edward J. Imwinkelried, A New Antidote for an Opponent's Pretrial Discovery Misconduct: Treating the Misconduct at Trial as an Admission by Conduct of the Weakness of the Opponent's Case, 1993 BYU L. REV. 793, 794 (discussing Judge Myron Bright's observation that merely ordering disclosure as a sanction for discovery misconduct is ineffective because "it does little good to merely order a litigant to do what he should have done four months before").
120. Transcript of Motion Hearing, supra note 4, at 26. Defense counsel stated: The efforts that were made by ... the Defense in this case to obtain discovery and Brady material are unprecedented ... . [O]f the thousands of hours we spent defending Ted Stevens, I would estimate that 25 percent to a third of the time was focused on things we shouldn't have had to ask for, discovery and Brady material time and time again.
121. Id.; People v. Kelly, 467 N.E.2d 498, 501 (N.Y. 1984) (finding a discovery violation and stating "as a general matter the drastic remedy of dismissal should not be invoked where less severe measures can rectify the harm done by the loss of evidence"); see e.g., People v. Jackson, 637 N.Y.S.2d 158 (N.Y. Sup. Ct. 1995), aff'd, 695 N.Y.S.2d 357 (N.Y. App. Div. 1999) (holding that dismissal was not an appropriate sanction where witness suffered memory loss but court permitted the introduction of prior statements at trial).
122. JOSEPH F. LAWLESS, PROSECUTORIAL MISCONDUCT: LAW, PROCEDURE, FORMS 5-109 (4th ed. 2008) (stating that counsel may expect dismissal of charges to be rare and that the more expected procedure will be the exclusion of certain evidence or the granting of a continuance). See generally BENNETT L. GERSHMAN, PROSECUTORIAL MISCONDUCT § 5.22, at 5-43 to -45 (2d ed. 2008) (supplemented annually) (stating that the court exceeds its authority in granting dismissal as a sanction for Brady violation where a less severe sanction could have cured the violation).
123. United States v. Pollock, 417 F. Supp. 1332, 1349 (D. Mass. 1976) (emphasizing that dismissal was the only adequate sanction when notes that may have corroborated the defense theory that the defendant was working undercover as an agent for a government agency were intentionally destroyed in bad faith); Jones, supra note 115, at 2916 n.146 (citing numerous cases where courts found dismissal warranted due to destruction of Brady evidence or "flagrant" Brady violations); see also Ferrera v. United States, 456 F.3d 278 (1st Cir. 2006) (affirming district court's motion to vacate defendant's conviction under the federal RICO statute based on prosecutor's failure to disclose a key witness's recantation).
124. See DIST. MASS. LOCAL R. 1.3 ("Failure to comply with any of the directions or obligations set forth in, or authorized by, these Local Rules may result in dismissal, default, or the imposition of other sanctions as deemed appropriate by the judicial officer."); ME. R. CRIM. P. 16(d); N.C. GEN. STAT. ANN. § 15A-910(a)(3b) (2009); see also Brady Report, supra note 35, at 60.
125. Brady Report, supra note 35, at 60; e.g., LA. CODE CRIM. PROC. ANN. art. 729.5(A) (2009) ("If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may ... enter such other order, other than dismissal, as may be appropriate." (emphasis added)); United States v. Davis, 578 F.2d 277, 279-80 (10th Cir. 1978) (holding that new trial, not dismissal, is remedy for suppression of Brady evidence); People v. Wimberly, 7 Cal. Rptr. 2d 152, 163 (Cal. Ct. App. 1992) ("Even where the prosecution acts willfully and in bad faith ... 'the extreme sanction of dismissal is rarely appropriate unless a defendant has established prejudice ... and the prejudice cannot be otherwise cured ... .'"); Commonwealth v. Burke, 781 A.2d 1136 (Pa. 2001) (holding that dismissal of charges was extreme and inappropriate sanction for Brady violation).
126. The 2007 campus shooting at Delaware State University (DSU) is one recent example of a dismissal based on Brady violations. Order upon Defendant's Motion to Dismiss, Delaware v. Braden, No. 0709030642 (Del. Super. Ct. May 19, 2009) [hereinafter Braden Order] (on file with author). On September 21, 2007, shots were fired at a group of students leaving a DSU campus eatery, leaving one student dead and another student injured. The investigation eventually led to the arrest of a DSU student, Loyer Braden, who was charged with second-degree murder and a series of assault and gun charges. The government alleged that Braden fired the shots to retaliate against a DSU student in the crowd with whom he had a dispute. Malcolm McQuiston, another DSU student present in the crowd when the shots were fired, was interviewed by police and later gave a statement exonerating Braden and identifying two other people as the shooters. Id. According to the government, although the police turned McQuiston's statement over to the prosecutors one month after the shooting, prosecutors never listened to or viewed the tape and were unaware of its content until they began preparing for trial. State's Answer to the Defendant's Motion to Dismiss, Delaware v. Braden, No. 0709030642 (Del. Super. Ct. April 14, 2009). Thus, despite written defense requests for disclosure of Brady evidence in December 2007 and June 2008, the McQuiston statement was not disclosed to the defense until April 2009, the eve of trial when jury selection was about to begin, and only after disclosure was ordered by the court. Braden Order, supra, at 2-3. By the time of the belated disclosure, McQuiston could not be located, despite a month-long search by both the defense and the prosecution. The trial judge granted the defense motion to dismiss based on the government's loss of Brady evidence. Braden Order, supra, at 8. Although McQuiston was subsequently located, the government opted not to appeal the trial judge's ruling. The government stated that its decision not to appeal was based, in part, on the fact that a "key" prosecution witness had recanted his original statement implicating Braden in the shooting. Inexplicably, the government also failed to inform the defense about this second piece of exculpatory information. See Media Release, Del. Dep't of Justice, Delaware Department of Justice Announces Appellate Decision in Criminal Case Against Defendant Loyer Braden (May 28, 2009), available at http://attorneygeneral.delaware.gov/media/releases/2009/appelatedecision criminalcase.pdf; Dismissed Charges Against N.J. Man Accused in Delaware State Shooting Will Not Be Appealed, ASSOCIATED PRESS, May 28, 2009, http://www.nj.com/news/index.ssf/ 2009/05/del_attorney_general_will_not.html; Murder Case Against Suspected Delaware University Shooter Dismissed, FOXNEWS.COM, May 19, 2009, http://www.foxnews.com/ story/0,2933,520723,00.html.
127. See, e.g., People v. Roberts, 611 N.Y.S.2d 214 (N.Y. App. Div. 1994) (granting new trial when district attorney kept exculpatory statement for over a year until the day before trial when witness could no longer be found).
128. E.g., Am. Coll. of Trial Lawyers, supra note 100, at 120 (proposing the codification of the Brady disclosure duty in Federal Rule of Criminal Procedure 16 and advocating "dismissal of an indictment for failure to comply with Rule 16 upon a showing of substantial prejudice to the defendant or intentional misconduct by the government"); see also Cicchini, supra note 111, at 336 (proposing rule requiring automatic mistrial for prosecutorial misconduct at trial and proposing dismissal with prejudice for intentional prosecutorial misconduct). But see Peter Henning, Prosecutorial Misconduct and Constitutional Remedies, 77 WASH. U. L.Q. 713, 827 (1999) (arguing that dismissal of charges should not be available simply to deter prosecutorial misconduct and stating that courts "should not rely on granting a particular defendant relief to serve as a check on future prosecutorial actions in other cases except to the extent necessary to vindicate a specific constitutional protection breached by the prosecutorial misconduct... . [C]onstitutional protections belong to individuals, not to courts for use as a means to police the conduct of prosecutors.").
129. See Brady Report, supra note 35, at 49-59.
130. Id. at 59-60.
131. FED. R. CRIM. P. 16(d)(2) states: If a party fails to comply with this rule, the court may: (A) order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions; (B) grant a continuance; (C) prohibit that party from introducing the undisclosed evidence; or (D) enter any other order that is just under the circumstances. Many state rules parallel the federal rule. See, e.g., ALA. R. CRIM. P. 16.5; ARK. R. CRIM. P. 19.7(a); FLA. R. CRIM. P. 3.220(n)(1); HAW. R. PENAL P. 16(9)(i); ILL. SUP. CT. R. 415(g)(i); LA. CODE CRIM. PROC. ART. 729.5(A); MINN. R. CRIM. P. 9.03(8); VT. R. CRIM. P. 16.2(g)(1); WASH. SUP. CT. CRIM. R. 4.7(h)(7)(i). Beyond the Rule 16(d) enumerated sanctions, a handful of states expressly permit courts to impose additional sanctions, including contempt or an assessment of costs incurred by opposing party for willful violations. See, e.g., ARK. R. CRIM. P. 19.7(b); FLA. R. CRIM. P. 3.220(n)(2); HAW. R. PENAL P. 16(9)(ii); ILL. SUP. CT. R. 415(G)(II); LA. CODE CRIM. PROC. ART. 729.5(B) (providing that willful violation of discovery rule "shall be deemed constructive contempt of court"); MINN. R. CRIM. P. 9.03(8); VT. R. CRIM. P. 16.2(g)(2); WASH. SUP. CT. CRIM. R. 4.7(h)(7)(ii); see also Brady Report, supra note 35, at 60 n.136.
132. See State v. Fulminante, 975 P.2d 75, 93 (Ariz. 1999) ("When police negligently fail to preserve potentially exculpatory evidence, an instruction ... permits the jury to infer that the evidence would have been exculpatory."); State v. Willits, 393 P.2d 274, 276, 279 (Ariz. 1964) (ordering the trial court on remand to give an adverse inference instruction as a sanction for the government's Brady misconduct and stating that the unfavorable inference may be sufficient to "create a reasonable doubt as to the defendant's guilt"); People v. Wimberly, 7 Cal. Rptr. 2d 152, 162-64 (Cal. Ct. App. 1992) (holding that trial court properly gave jury remedial instruction that improper destruction of evidence by prosecution could support inference adverse to prosecution which might be sufficient to raise reasonable doubt); State v. Maniccia, 355 N.W.2d 256, 259 (Iowa 1984) (holding that the defendant's right to due process was violated due to the state's destruction of evidence and imposing an adverse inference instruction); Tinsley v. Jackson, 771 S.W.2d 331, 332 (Ky. 1989) (citing Sanborn v. Commonwealth, 754 S.W.2d 534, 539 (Ky. 1988), rev'd on other grounds,
133. See generally David J. Kessler, Spoliation in Capital Post-Conviction Proceedings: Theory of Spoliation In Habeas Corpus-Part I, CHAMPION, Nov. 2005, at 14, 16. See also Norman C. Bay, Old Blood, Bad Blood, and Youngblood: Due Process, Lost Evidence, and the Limits of Bad Faith, 86 WASH. U. L. REV. 241, 293-94 nn.396-97 (2008) (collecting cases both demanding and relaxing the requirement of proof of bad faith or intentional destruction of evidence as a prerequisite for an adverse inference instruction).
134. People v. Jackson, 637 N.Y.S.2d 158 (N.Y. Sup. Ct. 1995).
135. Id. at 189-91. The government admitted that it was aware of the statement but argued that Taylor's statement did not fall within Brady because there were several inconsistencies in Taylor's statements, and the government did not consider them credible. Id. at 186-87. The court summarily rejected this contention as "disingenuous" and found that the exculpatory value of Taylor's statements "is evident on its face" without regard to the prosecutor's unilateral assessment of the credibility of the witness's account.
136. Id. at 190.
137. Id. at 191.
138. Rule 37(c)(1)(B) provides that where a party "fails to provide information or identify a witness," the court can employ a wide range of sanctions, including "inform[ing] the jury of the party's failure." FED. R. CIV. P. 37(c)(1)(B); see Tarlton v. Cumberland County Corr. Facility, 192 F.R.D. 165 (D.N.J. 2000) (discussing discovery obligations in civil cases and the mandatory nature of Rule 37 sanctions). The jury instruction sanction was imposed by the court in McCloud v. Goodyear Dunlop Tires North America, Ltd., No. 04-1118, 2007 WL 2584289, at 5 (D. Ill. Aug. 23, 2007), where the court found that the defendant's response to discovery was "at best deliberately misleading and at worst a deliberate attempt to hide the identity of a damning witness." See also Howell v. Maytag, 168 F.R.D. 502, 508 (M.D. Pa. 1996) (concluding that destruction of the evidence "requires a jury instruction on the spoliation inference"); EDWARD J. IMWINKELRIED, 2 UNCHARGED MISCONDUCT EVIDENCE § 7:2 (stating that in Slessinger v. Walt Disney Corp., Case No. BC 022365 (Cal. Super. Ct. June 16, 2000), the trial judge instructed the jury that it "may infer that Disney willfully suppressed evidence in order to prevent such evidence from being presented in this trial and the jury may consider that fact in determining what inferences to draw from the evidence").
139. FED. R. CIV. P. 37 advisory committee's note to 1987 amendment.
140. Id.
141. See United States v. Antonelli Fireworks, 155 F.2d 631, 658 (2d Cir. 1946) (Frank, J., dissenting) (criticizing the court for finding harmless improper statements made by the prosecutor at trial and noting that similar conduct would have been reversible error in a civil case).
142. Elizabeth N. Dewar, A Fair Trial Remedy for Brady Violations, 115 YALE L.J. 1450, 1459 (2006); see also TASK FORCE ON WRONGFUL CONVICTIONS, supra note 35, at 26-27 (recommending the use of a jury instruction sanction for Brady violations); Imwinkleried, supra note 119, at 793-96 (advocating for broader use of litigating discovery violations at trial as a sanction for discovery misconduct by litigants).
143. Dewar, supra note 142, at 1457. Brady instructions have also been proposed by other legal scholars. See, e.g., 3 KEVIN F. O'MALLEY, JAY E. GRENIG, & WILLIAM C. LEE, FEDERAL JURY PRACTICE AND INSTRUCTIONS § 104.27 (5th ed. 2000) ("If you should find that a party willfully [suppressed] [hid] [destroyed] evidence in order to prevent its being presented in this trial, you may consider such [suppression] [hiding] [destruction] in determining what inferences to draw from the evidence or facts in the case."); 4 THOM LUNDY, THE NATIONAL CRIMINAL JURY INSTRUCTIONS COMPENDIUM § 36.1.2 (2008), available at http://www.juryinstruction.com/toc.shtml (password and paid registration required) ("If you find that the [government] attempted to suppress evidence in any manner, you may draw an adverse inference to the prosecution. Such an adverse inference may be sufficient, alone or in combination with other matters, for you to have a reasonable doubt as to defendant's guilt.").
144. Dewar, supra note 142, at 1462-65 (stating that "the very existence of the [jury instruction] remedy would cause prosecutors to take more care in carrying out their Brady duties out of heightened fear of imperiling their convictions" and that "if prosecutors do suffer lost convictions, jury nullification, or public outcry, [they may be provoked to improve the delivery of Brady information]").
145. 33 FEDERAL PROCEDURE § 77:272 (West 2009) (stating that the trial judge has discretion as to the style, form, and language of jury instructions, and the judge's formulation of the instructions will be reversed only upon a showing of prejudice); AM. JUR. TRIAL § 921 (West 2007) (noting that trial judges make the decision whether to give a jury instruction and which instruction to give, and such decisions may not be overturned absent an abuse of discretion); see, e.g., State Farm Fire & Gas. Co. v. Short, 459 N.W.2d 111 (Minn. 1990) (noting that trial courts enjoy broad discretion in determining jury instructions).
146. See 33 FEDERAL PROCEDURE, supra note 145, § 77:272 (noting that while the parties are entitled to jury instructions which reflect correct legal standards, they are not entitled to instructions phrased exactly as they desire); see also John G. Danielson, Inc. v. Winchester- Conant Props., Inc., 322 F.3d 26 (1st Cir. 2003) (stating that jury instruction could be overturned only if a party's substantial rights are prejudiced, and the instruction misleads the jury or misstates the correct legal standard).
147. The efficacy of using adverse inference instructions to punish and deter discovery misconduct has drawn criticism from some legal scholars. Nance, supra note 114, at 1. Recently, Professor Nance has urged the complete elimination of adverse inference instructions in most cases. Professor Nance contends that reliance on adverse inference instructions is misplaced, because it is the role of the court-not the jury-to manage evidence, set discovery standards for litigants, and apply discipline when there are discovery abuses by litigants. Nance argues that what jurors actually do when given an adverse inference instruction is decide whether the litigant's discovery misconduct warrants "increasing the burden of persuasion" to the point where the litigant loses. While Professor Nance correctly identifies some of the weaknesses of adverse inference instructions, these concerns must yield in the face of intentional Brady misconduct that poses a far greater threat to the integrity of the adjudication process and results in the wrongful conviction of innocent people.
148. In Shelton v. United States, 983 A.2d 363 (D.C. 2009), discussed in greater detail in Part IV, infra, the court noted the distinction between the admission of Brady misconduct as a sanction for a Brady violation and the presentation of Brady misconduct as "substantive evidence" that the government's case is weak. Id. at 11 n.15.
149. Singh v. Prunty, 142 F.3d 1157, 1163 (9th Cir. 1998) ("The prosecutor, more than neutral jurists, can better perceive the weakness of the state's case."); United States v. Boyd, 55 F.3d 239, 242 (7th Cir. 1995) ("If the prosecutors did not think their case air tight (and so they tried to improperly bolster it), this is some indication that it was indeed not airtight."); see also United States v. Dimas, 3 F.3d 1015, 1020 (7th Cir. 1993) (finding that the prosecutor's bad faith in suppressing Brady evidence "could shed some light on whether the prosecution thought the evidence was valuable to the defendants"); United States v. Jackson, 780 F.2d 1305, 1311 (7th Cir. 1986) ("We are doubtful that any prosecutor would in bad faith act to suppress evidence unless he or she believed it could affect the outcome of the trial.").
150. See Wardius v. Oregon, 412 U.S. 470, 476 n.9, 480 (1973) (noting that the "virtually limitless resources of government investigators" give the government "inherent information gathering advantages," including the power to interrogate, obtain search warrants, and issue subpoenas to the grand jury); see also Abraham S. Goldstein, The State and the Accused: Balance of Advantage in Criminal Cases, 69 YALE L.J. 1149, 1182-83 (1960) (stating that the state has far superior resources, whereas the defendant has "neither a crime laboratory nor vast identification and fingerprint files available to him").
151. Boyd, 55 F.3d at 241 (stating that a Brady violation may support an inference that "the prosecutors resorted to improper tactics because they were justifiably fearful that without such tactics the defendants might be acquitted"); see also Conley v. United States, 415 F.3d 183, 190 (1st Cir. 2005).
152. See infra note 193 (discussing cases regarding a party's right to present evidence to rebut the "consciousness of a weak case" inference).
153. See, e.g., United States v. Shelton, 983 A.2d 363, 368 (D.C. 2009) (sustaining prosecutor's relevance objection to the admissibility of evidence that Brady material was intentionally suppressed by the government prior to trial) (discussed infra at notes 211-225 and accompanying text); Barnes v. State, 462 So. 2d 550, 551 (Fla. App. 1985) (upholding trial court's ruling that defense evidence of the prosecutor's attempts to intimidate defense witnesses was not admissible to show "the state's lack of confidence in the strength of its case" because such evidence was not relevant to the defendant's guilt and the witness was not actually intimidated into recanting his testimony).
154. See, e.g., United States v. Cole, 670 F.2d 35, 37 (5th Cir. 1982) (rejecting defense contention that law enforcement officers' conduct in trying to intimidate defense witnesses was admissible to show the weakness of the government's case, and finding that evidence was properly excluded as unfairly prejudicial because, inter alia, the evidence would divert the jury's attention to a collateral issue).
155. FED. R. EVID. 401.
156. JOHN HENRY WIGMORE, 2 EVIDENCE § 278, at 133 (James Harmon Chadborn ed., Little, Brown 1979) (1940) (emphasis added); see also 32 C.J.S. Evidence § 535 (2008) (collecting cases on the consciousness of a weak case inference that flows from suppression, alteration, or fabrication of evidence); Evidence-Admissibility of Attempts by a Party to Suppress Evidence, 9 TEX. L. REV. 79, 100 (1930) (stating that it has "long been recognized" that a party's misconduct in manipulating evidence is admissible as indicating a "consciousness of the weakness of his case,'" and citing cases from the 1800s that applied the inference to the fabrication, suppression, or destruction of evidence).
157. 2 MCCORMICK ON EVIDENCE § 265, at 203 (John William Strong, ed., 1999). See generally Anne Bowen Poulin, Party Admissions in Criminal Cases: Should the Government Have to Eat Its Words?, 87 MINN. L. REV. 401, 402 (2002) (discussing the admissibility of pretrial statements made by the prosecutor or members of the prosecution team that are inconsistent with the government evidence at trial as admissions by party opponent).
158. E.g., Great Am. Ins. Co. v. Horab, 309 F.2d 262, 264 (8th Cir. 1962) (recognizing that a litigant's attempt to prevent service of subpoena on a witness could support the consciousness of a weak case inference); Scrivner v. Am. Car & Foundry, 50 S.W.2d 1001, 1016 (Mo. 1932) (considering an attempt to bribe a witness to be "an admission, circumstantial in its nature, that the plaintiff at the time of this offer was conscious of the weakness of his cause."); see also Nowack v. Metro. St. Ry. Co., 60 N.E. 32 (N.Y. 1901). See generally Michael J. Hunter, 2004-2005 Evidence, 54 SYRACUSE L. REV. 1075, 1095-96 (2004) (discussing the use of the consciousness of a weak case inference in New York civil cases).
159. E.g., District of Columbia v. Perez, 694 A.2d 882 (D.C. 1997) (noting that the alteration of medical records following patient's death gave rise to the consciousness of a weak case inference and permitted the jury to resolve factual issues against the government); Miller v. Montgomery County, 494 A.2d 761, 768 (Md. App. 1985) (stating that the county government's action in altering evidence to conceal a defect "may be taken as an indication of consciousness of the weakness of the county's case and a belief that its defense would not prevail without the aid of such improper tactics").
160. WIGMORE, supra note 156, § 276 at 122 ("It is universally conceded today that the fact of an accused flight, escape from custody, resistance to arrest, concealment, assumption of a false name and related conduct, are admissible as evidence of consciousness of guilt, and thus guilt itself.").
161. Id.
162. See, e.g., State v. Coltherst, 820 A.2d 1024, 1041-44 (Conn. 2003) (writing a letter offering money in exchange for an alibi); People v. Leyra, 134 N.E.2d 475, 480 (N.Y. 1956) (offering a false alibi); State v. Melson, 56 P.2d 710, 711 (Wash. 1936) (attempting to pay witness $500 to withdraw allegation).
163. See, e.g., United States v. Briscoe, 896 F.2d 1476, 1497-98 (7th Cir. 1990) (allowing government to introduce the fact that defendant attempted to conceal evidence by shoving it into his sock as consciousness of guilt); United States ex rel. Foster v. DeRobertis, 741 F.2d 1007, 1014 (7th Cir. 1984) (finding that defendant's concealment of the body in a murder case supports a consciousness of guilt inference that defendant was responsible for death of the deceased); State v. Denis, 622 S.W.2d 404, 406 (Mo. Ct. App. 1981) (affirming the trial court's decision to admit a torn check, even though it served as evidence of another crime, because it showed that defendant had attempted to destroy evidence, demonstrating consciousness of guilt); State v. Broadhurst, 196 P.2d 407, 430 (Or. 1948) (finding that repeated incidents of defendant's fabrication, suppression, and destruction of evidence in a murder case were admissible as circumstantial evidence of defendant's guilt). See generally 22A C.J.S. Criminal Law § 1017 (2008) (collecting cases on circumstantial evidence of consciousness of guilt based on the suppression, destruction, or fabrication of evidence); Dan Stigall, Prosecuting Raskolnikov: A Literary and Legal Look at "Consciousness of Guilt" Evidence, 2005 ARMY LAW. 54 (stating that the admissibility of evidence of the destruction and concealment of incriminating evidence by the defense has long been and continues to be competent evidence in both federal and military courts).
164. 191 F.2d 246 (2d Cir. 1951).
165. Id. at 251 (citing WIGMORE, supra note 156, § 278).
166. Id.
167. 102 F.2d 436 (2d. Cir. 1939).
168. Id. at 442.
169. Id. at 442-43; see also Commonwealth v. Enwright, 156 N.E. 65, 67 (Mass. 1927) ("[I]f the district attorney should unfairly suppress evidence he would thereby subject the case of the commonwealth to the same adverse inferences as would result from similar conduct by another party to the same cause.").
170. See supra notes 46 and 48 (citing cases finding Brady violations based on witness coercion and the presentation of false testimony).
171. E.g., Shelton v. United States, 983 A.2d 363 (D.C. 2009) (discussed infra Part V); United States v. Boyd, 55 F.3d 239, 241-42 (7th Cir. 1985); United States v. Cole, 670 F.2d 35, 36-37 (5th Cir. 1982); cf. Bruce v. United States, 617 A.2d 986, 996-97 (D.C. 1992) (citing WIGMORE, supra note 156, § 278, and stating that "the persuasive force of the entire prosecution case might have been impaired or undermined if exculpatory evidence had been presented at trial.").
172. 416 F.3d 980 (9th Cir. 2005).
173. Id. at 986.
174. Id. at 990.
175. Id.
176. Id.
177. E.g., United States v. Dimas, 3 F.3d 1015, 1020 (7th Cir. 1993); United States v. Jackson, 780 F.2d 1305, 1311 (7th Cir. 1986).
178. Several legal scholars have written extensively on the scope and limitations of discovery misconduct evidence. See Nance, supra note 114; Imwinkelreid, supra note 119; John H. Mansfield, Evidential Use of Litigation Activity of the Parties, 43 SYRACUSE L. REV. 695 (1992). However, their work has focused exclusively on civil cases and has not addressed the unique issues that arise in the context of Brady violations in criminal litigation.
179. Kyles v. Whitley, 514 U.S. 419, 445 (1995); see also Bowen v. Maynard, 799 F.2d 593, 613 (10th Cir. 1986); Commonwealth v. Bowden, 399 N.E.2d 482, 486 (Mass. 1980) ("The fact that certain tests were not conducted or certain police procedures not followed could raise a reasonable doubt as to the defendant's guilt in the minds of the jurors."); Commonwealth v. Rodriguez, 391 N.E.2d 889, 896 (Mass. 1979) (failure of government experts to perform state-of-the-art forensic tests admissible); Evans v. State, 922 A.2d 620, 628-29 (Md. Ct. Spec. App. 2007) (failure to use audio and video equipment to document key information); People v. Marchese, 638 N.Y.S.2d 71 (N.Y. App. Div 1996) (discussing cross examination of police officers concerning their failure to use available investigative techniques); Workman v. Commonwealth, 636 S.E.2d 368, 378 (Va. 2006) (finding nondisclosure of favorable evidence violated Brady where evidence could have been used to "attack the reliability of the police investigation").
180. Holmes v. South Carolina, 547 U.S. 319, 322-23 (2006) (noting that the defense criticized the procedures used in the collection and handling of fingerprint, fiber, and DNA evidence in support of the claim that law enforcement mishandled the investigation). See generally, 1 DAVID E. AARONSON, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 2-196-200 (3d ed. 2009) (citing Maryland law for the proposition that the defense is entitled to comment on the absence of well-known and commonly available evidence like fingerprints).
181. Kyles, 514 U.S. at 446 n.15.
182. See Holmes, 547 U.S. at 322-23 (noting that a major part of the defendant's defense was that contaminated and planted evidence was used by law enforcement officers to purposely frame him for a crime that was actually committed by a third party).
183. Sherman v. United States, 356 U.S. 369, 376 (1957) (concluding that the defense of entrapment is viable when "the Government plays on the weaknesses of an innocent party and beguiles him into committing crimes which it otherwise would not have attempted"); United States v. Garza-Juarez, 992 F.2d 896, 908 (9th Cir. 1993) (stating that entrapment is a defense designed to prevent the conviction of the unwary innocent induced by government action to commit a crime and consists primarily of two elements: actions constituting inducement by the government and the absence of facts showing criminal predisposition of the defendant) (citing United States v. Skarie, 971 F.2d 317, 320 (9th Cir.1992)). See generally LAFAVE, CRIMINAL LAW § 9.8, at 501-21 (4th ed. 2003).
184. United States v. Armstrong, 517 U.S. 456, 465 (1996) (finding that claims of selective prosecution are grounded in the Equal Protection Clause and require the claimant to show: (1) that he was singled-out for prosecution while others similarly-situated where not prosecuted; and (2) the defendant was targeted for prosecution based on race, religion or some other impermissible basis); see also Angela J. Davis, Prosecution and Race, 67 FORDHAM L. REV. 13 (1998) (critiquing Armstrong, 517 U.S. 456).
185. Vindictive prosecution claims are rooted in the Due Process Clause and prohibit a prosecution initiated in retaliation for the defendant exercising a protected constitutional or statutory right. See United States v. Paramo, 998 F.2d 1212, 1219 (3d Cir. 1993) ("[I]t is an elementary violation of due process for a prosecutor to engage in conduct detrimental to a criminal defendant for the vindictive purpose of penalizing the defendant for exercising his constitutional right at trial."). Proof of vindictiveness requires some showing that the prosecutor harbored genuine animus towards the defendant. United States v. Cyprian, 23 F.3d 1189, 1196 (7th Cir. 1994).
186. FED. R. EVID. 403.
187. CHRISTOPHER B.MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE 175 (3d ed. 2003).
188. 519 U.S. 172, 180 (1997).
189. MUELLER & KIRKPATRICK, supra note 187, at 175-80.
190. United States v. Cole, 670 F.2d 35, 36-37 (5th Cir. 1982). The defense argued that an effort by the government to influence testimony should be considered by the jury in evaluating the merits of the government's case, and "an inference may be drawn as to the weakness of the Government's case from that conduct." Id. at 36. The court excluded the evidence under Federal Rule of Evidence 403 finding the evidence was both collateral and cumulative. Id. at 37; see also Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107, 136 (S.D. Fla. 1987) (reasoning that informing jury of discovery misconduct may consume jury's attention and divert them away from substantive issues in the case).
191. Harris v. United States, 834 A.2d 106, 122 (D.C. 1996).
192. Hickory v. United States, 160 U.S. 408, 417 (1896) (internal quotation marks omitted).
193. See, e.g., Commonwealth v. Rivera, 490 N.E.2d 1160, 1163-64 (Mass. 1986); Commonwealth v. Sawyer, 452 N.E.2d 1094, 1102-03 (Mass. 1983).
194. WIGMORE, supra note 156, § 276, at 130 ("[T]he accused may always endeavor to destroy the adverse significance of his conduct by facts which indicate it to be equally or more consistent with such other hypothesis than that of consciousness of guilt."); e.g., Commonwealth v. Chase, 530 N.E.2d 185, 187 (Mass. 1988) ("The defendant had an unqualified right to negate the inference of consciousness of guilt by explaining [the facts] to the jury ... ."); Massachusetts Criminal Model Jury Instructions, Instruction 3.580 n.6 (2009), available at http://www.mass.gov/courts/courtsandjudges/courts/districtcourt/juryinst ructions/ criminal/.
195. Massachusetts Criminal Model Jury Instructions, supra note 194; see also AARONSON, supra note 180, § 2.55(B) (quoting a standard jury instruction as stating, in part: "You are free to ignore any evidence that the defendant [concealed] evidence if you decide that the conduct was innocent in nature or was not reflective of a consciousness of guilt of the crime charged").
196. See, e.g., FED. R. EVID. 407 (providing that evidence that a party took remedial steps or "subsequent remedial measures" after an accident to ameliorate the cause of the accident and prevent further injuries is not admissible to prove liability); FED. R. EVID. 408 (providing that statements made by parties during the course of settlement negotiations are generally not admissible at trial to prove liability); FED. R. EVID. 409 (providing that "good Samaritan" offers to pay medical expenses out of compassion are not admissible to prove liability); FED. R. EVID. 410 (providing that statements made during plea negotiations are generally excluded during trial to prove guilt). See generally MUELLER & KIRKPATRICK, supra note 187, at 231-63.
197. While Federal Rule of Evidence 408 generally excludes offers to compromise and statements made during settlement negotiations, the rule expressly allows evidence offered to prove "an effort to obstruct a criminal investigation or prosecution." FED. R. EVID. 408(b); see also MUELLER & KIRKPATRICK, supra note 187, at 246. Likewise, Federal Rule of Evidence 410 generally excludes statements made by the defendant during plea negotiations but does not prohibit the admissibility of certain sworn statements of the defendant when offered against the defendant "in a criminal proceeding for perjury or false statement." FED. R. EVID. 410.
198. Id. at 690. ("Whether rooted in, Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment the Constitution guarantees defendants a meaningful opportunity to present a complete defense.") (citations omitted); see also EDWARD J. IMWINKELRIED, EXCULPATORY EVIDENCE §§ 2.1-2.6 (2d ed. 1996 & Supp. 1998); Robert N. Clinton, The Right to Present a Defense: An Emergent Constitutional Guarantee in Criminal Trials, 9 IND. L. REV. 711 (1976).
199. Taylor v. Illinois, 484 U.S. 400, 423 (1988) (quoting Washington v. Texas, 388 U.S. 14, 19 (1967)).
200. Crane v. Kentucky, 476 U.S. 683, 690-91 (1986).
201. Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (citing United States v. Scheffer, 523 U.S. 303, 308 (1998)).
202. 410 U.S. 284, 295 (1973).
203. Id. at 302.
204. Crane, 476 U.S. at 687.
205. Holmes, 547 U.S. 319.
206. Washington v. Texas, 388 U.S. 14 (1967).
207. Id. at 17 (Harlan, J., concurring).
208. Taylor v. Illinois, 484 U.S. 400, 411 (1988).
209. For example, the Federal Rules of Evidence generally exclude impeachment with juvenile adjudications but permit its use if required for "a fair determination of the issue of guilt or innocence." FED. R. EVID. 609(d). In Davis v. Alaska, 415 U.S. 308, 320 (1974), the Court held that the state's interest in protecting juvenile records could not be used to prevent the defendant from impeaching a key government witness based on bias. The Court recognized that the state's interest "must fall before the right of petitioner to seek out the truth in the process of defending himself." Id. Likewise, the "rape shield" provision of the Federal Rules of Evidence generally precludes criminal defendants from introducing evidence concerning a rape complainant's sexual history or predisposition but allows such evidence if "exclusion ... would violate the constitutional rights of the defendant." FED. R. EVID. 412(b)(1)(C); see also United States v. Stamper, 766 F. Supp. 1396 (W.D.N.C. 1991) (finding that the defendant's Sixth Amendment right to present a defense necessitated the presentation of evidence of complainant's previous allegations of sexual misconduct against three other men).
210. E.g., Harris v. United States, 834 A.2d 106, 120 (D.C. 2003) ("The language of the party admissions rule provides no basis for creating a prosecutorial exception or an exception where the government is the party opponent. Such an exception ... is unfair in light of the applicability of the party admissions rule to criminal defendants."); People v. Hall, 12 N.W. 665, 668 (Mich. 1882) (stating that "[t]here is no more reason for exempting the prosecution than the defence [sic] from scrutiny concerning tampering with witnesses" where government tried to induce witnesses to suppress testimony).
211. 983 A.2d 363 (D.C. 2009).
212. Id. at 364.
213. Prior to the shooting, Boyd testified that he informed his cousin that Shelton had made unwanted sexual advances towards his cousin's sister. Boyd testified that he was present when his cousin confronted Shelton on the street and the retaliatory confrontation led to his cousin assaulting Shelton and causing major damage to Shelton's car. Id. at 365-66.
214. Id. at 364 n.6.
215. Transcript of Pretrial Hearing re Brady Disclosure at 13, United States v. Shelton, No. F-847-01 (D.C. Super. Ct. July 18, 2002) (on file with author).
216. Id. at 15; Brief for Appellee at 11, Shelton v. United States, No. F-847-01 (D.C. Super. Ct. Jan. 11, 2007) (on file with author).
217. Shelton, 983 A.2d at 367.
218. Id.
219. Id. at 368.
220. Id.
221. Id. at 369.
222. Id. at 371.
223. The court in Shelton recognized that the Brady disclosure duty is breached whether nondisclosure is negligent or intentional but correctly noted that only an intentional suppression of Brady information will give rise to the inference that the government considered that disclosure of the evidence would weaken its case. Id. at 372 n.19.
224. Also, contrary to the prosecutor's dubious contention that he believed Boyd's statement was not credible because Boyd was injured and in pain when the statement was made, these extreme circumstances surrounding the making of the statement would make the statement more-not less-credible under traditional rules of evidence. As the statement was made shortly after Boyd was shot and related to the circumstances surrounding the shooting (the identity of the shooter), the statement would likely be deemed sufficiently reliable to be admissible as an "excited utterance" under either the federal or the District of Columbia rules of evidence. See FED. R. EVID. 803(2) (defining an excited utterance as "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition"); Price v. United States, 545 A.2d 1219 (D.C. 1988) (noting the same).
225. The government's evidence of guilt was not overwhelming. There was no gun or other physical evidence to link Shelton to the crime scene. The entire case rested largely on the strength of Boyd's identification of Shelton as the shooter. In support of its conclusion that Shelton was not prejudiced by the trial court's error, the Shelton court stated that Officer Woodward's testimony regarding the hospital statement was "ambiguous" and "did not have much force." Shelton, 983 A.2d at 372. In fact, the only ambiguity was whether Boyd told Woodward: "I did not see who shot me," or whether Boyd said: "I don't know who shot me." Under either version, Boyd told Officer Woodward that he could not identify the shooter. In addition, Officer Woodward-not Boyd-first mentioned Shelton's name as the possible shooter when he interviewed Boyd. Id. at 366. Before traveling to the hospital to interview Boyd, Boyd's mother told Woodward about the prior beef between Boyd and Shelton. Brief for Appellee, supra note 216, at 16; Brief of Appellant at 12-13, Shelton v. United States, No. F-847-01 (D.C. Super. Ct. July 3, 2006); see also Transcript of Jury Trial at 225-30, Shelton v. United States, No. F-847-01 (D.C. Super. Ct. July 23, 2002). Even then Boyd did not name Shelton as the shooter. Id. In addition, Boyd testified that when he spoke to Woodward he was "in and out of consciousness" and "didn't really know what was going on at the time." Shelton, 983 A.2d at 365. However, Officer Woodward testified that when he arrived at the hospital to speak to Boyd, though Boyd appeared to be in obvious pain from his gunshot wound, Boyd was very much conscious, awake, and alert. Transcript of Jury Trial, supra, at 229. Woodward's testimony on this point was bolstered by Boyd's hospital records (introduced by the defense), which reported that Boyd was alert although "anxious" and in "moderate pain." Brief of Appellant supra, at 12; see also Transcript of Jury Trial at 351, 362, Shelton v. United States, No. F-847-01 (D.C. Super. Ct. July 24, 2002). The Shelton court also stated that Boyd's eyewitness identification was corroborated by another witness, Andrew Durham, who was "not significantly impeached." Id. at 373. However, Durham was impeached with two different pretrial statements wherein he stated that he did not know the shooter. Durham was also impeached with the fact that during a pretrial meeting with detectives when he was shown a photograph of Shelton, Durham stated that the photograph did not look anything like the shooter. Transcript of Jury Trial (July 23, 2002), supra, at 208, 168, 196, 205; Brief of Appellant, supra, at 10-12. The defense also impeached Durham with the fact that he only stated that he could identify Shelton as the shooter after Durham was incarcerated and facing his own criminal charges. Thus, Boyd's identification was not bolstered by other compelling evidence presented by the government at trial.