I am currently plowing through the “discovery” in a federal criminal case brought against my client here in Georgia. Discovery is the word we use to describe the evidence or exhibits that prosecutors are obligated to hand over to the defense lawyer at the beginning of a criminal case. Going through all these materials in my current federal case reminds me of what I’ve learned over the years, and how the discovery “rules” are often far different than what really happens in criminal cases.
One of the biggest “rules” is based on a Supreme Court decision from 1963, the famous case of Brady v. Maryland, 373 U.S. 83(1963). This rule applies to both federal criminal cases and those in the state court systems. The prosecutors conveniently “forgot” to hand over to defense counsel a statement made by Brady’s co-defendant that Brady did not kill the victim, the other guy did it. The Supreme Court said that suppression by the prosecution of evidence favorable to an accused who has asked for it violates due process if the evidence is “material” to guilt or to punishment, and it does not matter whether the prosecutor acted in good faith or bad faith. Seems kind of simple, right, if the AUSA or DA has something which shows the the Defendant did not do the crime or should not be punished so severely, the “due process clause” from our wonderful Fifth Amendment demands that the prosecutor give it up.
Now, here’s the reality, and I’ve always thought it is similar to the old expression about letting the fox guard the henhouse. Lawyers, by our very natures, are competitive people. We want to win. Human nature tells us that if a prosecutor has evidence that undercuts his or her case, that DA or AUSA is less likely to want to turn it over than a more independent person. But, here’s the crazy part of the “rule” as it has been modified over the years. The DA or AUSA is the person who decides to turn it over (see what I mean about the fox guarding, etc). Defense counsel might never even know about the exculpatory stuff if the prosecutor (and his or her agents) successfully bury the materials in files that are never turned over. Even “good” prosecutors can fail to appreciate how some evidence or information is exculpatory, because they are looking at everything through a different lens than the criminal defense attorney.