Governmental Obligation to Produce Exculpatory Evidence

Author: LegalEase Solutions

INTRODUCTION

Defendant is being prosecuted by the Department of Justice-Tax Division, for tax fraud.  The Defendant had made tax decisions due to reliance on IRS letter rulings that discussed the type of investment with which Defendant was involved.  The IRS issued the letters to taxpayers between the years of 1993 – 1999.  Defendant wants to compel the government to produce these letters and admit/authenticate them, as theyare potentially exculpatory evidence.

The current issue calls for the discussion of:

  1. Government’s obligation to produce such exculpatory evidence.
  2. Principles enunciated in Brady v Maryland, 373 US 83 (1963), and its progeny.

DISCUSSION

The United States Supreme Court stated in Berger v United States, 295 U.S. 78; 55 S. Ct. 629; 79 L.Ed 1314; 1935 U.S. LEXIS 308 that within the federal system a United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it win a case, but that justice be done. Id. at 88.

The Supreme Court accordingly set forth constitutional rules under the Fifth and Fourteenth Amendments to the Constitution ensuring and protecting the special role played by the American prosecutor in the search for truth in criminal trials.  In the case of Brady v Maryland, 373 U.S. 83; 83 S. Ct. 1194; 10 L.Ed 2d 215; 1963 U.S. LEXIS 1615, after the petitioner was convicted of murder and sentenced to death, he learned that the State withheld a statement in which another individual admitted the actual homicide. The Court held that suppression of evidence favorable to an accused upon request violated the Due Process Clause, U.S. Const. amend. XIV, where the evidence was material to guilt or punishment, regardless of the State’s good or bad faith. Id. at 87.

The Court more specifically held in the case of  United States v  Payne, 63 F.3d 1200; 1995 U.S. App. LEXIS 24039 (1995) that the government’s Brady obligation to disclose evidence extends only material evidence that is favorable to the accused. Id. at 1208.

In the case of Strickler v Greene, 527 U.S. 263; 119 S. Ct. 1936; 144 L.Ed 2d 286; 1999 LEXIS 4191, the Petitioner was convicted of capital murder and sentenced to death. Petitioner’s habeas corpus application was granted by the federal trial court based on a finding that exculpatory evidence was not disclosed. The appellate court reversed, holding petitioner’s Brady claim was procedurally defaulted. The court granted certiorari. After reviewing the record, the court found the evidence at issue was exculpatory and not disclosed. Although petitioner’s Brady claim was procedurally defaulted, petitioner demonstrated good cause for failing to timely raise his claim.  Respondent had withheld exculpatory evidence, causing petitioner to reasonably rely on respondent’s open file policy. Respondent confirmed that petitioner’s reliance on the open file policy was reasonable during state habeas proceedings. Regardless, the court concluded petitioner did not show a reasonable probability that his conviction or sentence would have been different had the evidence been disclosed. Petitioner therefore could show materiality under Brady or prejudice from his failure to timely raise the claim. The appellate court’s judgment denying petitioner’s application for writ of habeas corpus was thus affirmed. The Court observed that

There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.  Id. at 282.

 Further, the Supreme Court in Moore v Illinois, 408 U.S. 786; 925 S. Ct. 2562; 33 L.Ed.2d 706; 1972 U.S. LEXIS 23, reh’g denied, 409 U.S. 897 (1972), a case arising under the Fourteenth Amendment, held that a valid Brady complaint contains three elements: (1) the prosecution must suppress or withhold evidence, (2) which is favorable, and (3) material to the defense.

The Supreme Court in U. S. v Agurs, 427 U.S. 97; 96 S. Ct. 2392; 49 L.Ed. 2d 342; 1976 U.S. LEXIS 72 , a case arising under the due process clause of the Fifth Amendment, described “three quite different situations” in which the rule of Brady v Maryland applies, and set forth varying tests of materiality to determine whether a criminal conviction must be overturned. The Agurs court stated that in the first situation, the undisclosed evidence demonstrates that the prosecution’s case includes perjured testimony and that the prosecution knew, or should have known, of the perjury, and the Court imposed a strict standard of materiality where the prosecution uses evidence that it knew, or should have known, was false so that in such a case, the conviction must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. The second situation in which Brady applies, according to the Agurs court, is characterized by a pretrial request for specific evidence followed by noncompliance, and the Court also imposed a strict standard of materiality in this situation, with the defendant being entitled to a new trial if there is any reasonable likelihood that the evidence could have affected the outcome of the initial trial. The Agurs Court also extended the holding of Brady to the situation where the prosecutor failed to volunteer exculpatory evidence never requested, or which was requested only in a general way, but only when suppression of the evidence would be of sufficient significance to result in the denial of the defendant’s right to a fair trial.

The Court in U.S. v Bagley, 473 U.S. 667; 105 S. Ct. 3375; 87 L.Ed. 2d 481; 1985 U.S. LEXIS 130, a case arising under the due process clause of the Fifth Amendment, held that regardless of the type of the defendant’s request for Brady material, favorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Defendant was indicted for violating federal narcotics and firearms statutes. Defendant filed a discovery motion regarding whether witnesses were paid to give testimony. The prosecutor failed to disclose that witnesses would be paid after testimony. Defendant was found guilty. Subsequently, defendant discovered that the witnesses had been paid, and he sought to vacate his sentences on the grounds that failure to disclose violated his right to due process and to impeach witnesses. The trial court denied defendant’s motion to vacate, holding that impeachment evidence would not have affected the outcome of the trial. The appellate court reversed, holding that the denial of evidence was a violation of due process and defendant’s right to confrontation. The Court reversed and remanded for a determination of whether the failure to disclose the evidence would have affected the trial outcome, thus comprising a constitutional error where such evidence was material.

The court in U.S. v Udechukwu, 11 F.3d 1101; 1993 U.S. App. LEXIS 33366 held that the prosecutor’s failure to disclose salient information unearthed during an investigation into the defendant’s claim that she had been coerced by a drug trafficker into carrying heroin into the United States violated the prosecutor’s obligation under Brady, and thus warranted a new trial, where the prosecutor learned that the source named by the defendant existed and was a prominent drug trafficker.

Courts have also held that undisclosed evidence is material for Brady purposes when its cumulative effect is such that there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different; “reasonable probability” is one sufficient to undermine confidence in the outcome. U.S. v. White, 238 F.3d 537; 2001 U.S. App. LEXIS 1379 (4th Cir. 2001).

The Court in U.S. v Wilson, 289 F. Supp. 2d 801; 2003 U.S. Dist. LEXIS 19719 (S.D. Tex. 2003), followed the decision in Brady, supra and Strickler, supra, following the three-prong approach to establish the elements of a violation.  In Wilson, supra, the Court held  that the Government’s intentional withholding of information favorable to the accused, in its prosecution of a former Central Intelligence Agency (CIA) officer, constituted a Brady violation, as the government withheld material which tended to be exculpatory and would have impeached government’s denial of a continuing employment association with the defendant, and there was a reasonable probability of a different verdict had the information been produced.

The court in U.S. v Ranger Electronic Communications, Inc., 22 F. Supp. 2d 667 (W.D. Mich. 1998), held that the prosecutor violated the Brady obligation to share exculpatory information, in a prosecution against a foreign manufacturer of radio equipment that ended in a dismissal with prejudice of the illegal importation charges.  The court found that the prosecution failed to timely produce documents that would have provided the manufacturer with an argument that the imported radios were not prohibited by law and that the regulations in place did not provide adequate notice to importers that the radios were so prohibited.

Courts have also held that in order to establish a Brady violation, a defendant must demonstrate that State possessed evidence favorable to him; that defendant did not possess the evidence nor could he have obtained it himself with any reasonable diligence; that State suppressed the favorable evidence; and that had evidence been disclosed to defense, there was reasonable probability that outcome of proceedings would have been different. Chandler v Moore, 240 F.3d 907 at 915; 2001 U.S. App. LXIS 1271.
The court in U.S. v Lloyd, 71 F.3d 408, (D.C. Cir. 1995), reh’g and suggestion for reh’g in banc denied, (Feb. 5, 1996), held that a defendant who was convicted of aiding and abetting in preparation of false federal income tax returns was entitled to a new trial where the prosecution, without wrongdoing, withheld the tax return of the defendant’s client for the year which the defendant did not prepare returns as the undisclosed return raised a reasonable probability of a different result had it been disclosed at trial.
CONCLUSION

The principle enunciated in Brady, supra has been applied in a line of Federal Court decisions and establishes that the government is under a duty to disclose evidence that is  favorable to the accused, either because it is exculpatory, or because it is impeaching. The evidence should be of such a nature that there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. In the case at hand the Defendant had made tax decisions due to
reliance on IRS letter rulings that discussed the type of investment
with which Defendant was involved. Therefore these documents/letters are material exculpatory evidence, which would influence the outcome of the proceeding. The Government is bound to produce the same.