Swept under the rug: the Brady disclosure obligation in a pre-plea context.

AuthorConte, Daniel

    Jessica was driving during a heavy rainstorm when she lost control of her automobile, which veered off the road and overturned. One passenger died, and another passenger was seriously injured. Neither alcohol nor drugs were involved. At the time of the accident, Jessica was traveling through a 35-mph speed limit zone. An investigation initially revealed that at the time of the accident, Jessica's speed was 70.84 mph. However, an error was later discovered and her speed was reduced to 44.66 mph. The prosecutor sought to charge Jessica with two felonies: vehicular homicide and serious injury by vehicle. The prosecution's expert later discovered that the revised speed calculation used by the investigators was faulty, and that based on the data available, it was now impossible to accurately calculate Jessica's actual speed. However, the prosecution never informed Jessica's counsel of this new discovery. Soon after, without the knowledge of what actually caused the accident, Jessica pleaded guilty before going to trial. Was there a prosecutorial duty to disclose this critical information to Jessica before allowing her to plead guilty? If the prosecution knows that the defendant is going to waive the right to trial and instead plead guilty, is a prosecutorial disclosure duty still owed? (1)

    In 1963, the United States Supreme Court decided Brady v. Maryland, (2) a monumental decision leveling the playing field in the discovery process between prosecutors and criminal defendants. (3) Brady recognized a seminal constitutional duty for prosecutors to provide defendants with exculpatory and material evidence in their possession, which ran on the idealistic notion of justice over victory; however, the actual application lacked the practicality originally expected. (4) In a pre-trial context, conflicting court interpretations have exposed the confusion in the judicial system as to whether a trial is necessary to trigger this prosecutorial duty. (5) In the years following Brady, a split was created among the circuit courts as to whether a prosecutorial duty to disclose material, exculpatory evidence is owed before a defendant enters a plea. (6) In 2002, the Supreme Court granted certiorari to review United States v. Ruiz (7) which legal commentators expected to settle the dispute, but instead, the ambiguous and incomplete decision rendered has frustrated attorneys on both sides and has caused more confusion among the courts concerning the application of Brady in a pre-plea context. (8)

    This Note illustrates the failures within the criminal justice system by identifying the vast disparity between prosecutors and criminal defendants pre-plea and the need for rule modification in the ethical and/or procedural arenas. (9) Part II discusses the background of the constitutional duties created by Brady and its progeny, the recently revised prosecutorial ethical duties, and the procedural rules surrounding the withdrawal of an entered guilty plea. (10) Part III analyzes the initial unsettled circuit split, the Ruiz decision, and the subsequent circuit split that currently exists. (11) Part IV examines the mistakes that courts make in interpreting Ruiz, suggests the imposition of procedural rules, and recommends revisions to ethical rules in order to classify the application of Brady in a plea context. (12) Finally, Part V concludes by discussing the need for new legislation or the modification of existing rules, which will settle this dispute, and most importantly, prevent convictions of innocent defendants. (13)


    1. Brady Disclosure and Due Process

      For over seventy years, the Supreme Court has recognized the importance of the prosecutor's role in the criminal justice system and their power over vulnerable defendants. (14) In Brady v. Maryland, the Court held that the Fourteenth Amendment's due process clause creates a prosecutorial duty to disclose evidence that is "favorable" for the defendant, as it is "material either to guilt or punishment." (15) Legal theorists suspected Brady to have a swift and radical change to the criminal law arena; however, problems soon became apparent. (16) Brady was monumental in the creation of the ethical duties imposed upon prosecutors by the American Bar Association ("ABA"). (17) Conversely, Brady had little procedural effect on criminal courts and the Federal Rules of Criminal Procedure due to the vague protective authority it provides defendants. (18)

      Brady did not articulate a standard for determining "favorable" or "material" evidence, causing much difficulty for prosecutors and courts in determining which evidence triggers the duty to disclose. (19) After Brady, the Supreme Court attempted to refine the scope of Brady by granting certiorari in a number of criminal cases involving prosecutorial disclosure. (20) The Supreme Court gradually expanded the prosecutorial disclosure duty to include additional evidence: evidence useful in impeaching government witnesses; (21) all material evidence, even if not requested by the defendant; (22) and all material evidence not known by the prosecutor, although he or she should have known of it. (23) Throughout these cases, the Supreme Court made several different standards of materiality, which the Court continually revised. (24) The current standard of materiality is whether "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." (25) The Court later held that "reasonable probability" of a different result is found when the suppressed evidence "undermines confidence in the outcome of a trial." (26) Although this materiality standard seems to require a post-hoc analysis, it would be significantly more difficult for prosecutors to use the standard uniformly to guide their pretrial decisions. (27)

      If a Brady violation is discovered after trial, a new trial is typically granted to the defendant, providing him the opportunity to introduce the suppressed evidence. (28) If a court discovers a pretrial Brady violation, it may compel disclosure and, if necessary, grant a continuance for the defendant to make an effective use of the applicable evidence. (29) The Supreme Court uses the following three components to determine a Brady violation: (1) whether the evidence was favorable to the accused because it was exculpatory or impeaching; (2) whether the evidence was actually suppressed by the prosecution; and (3) whether the defendant had been prejudiced by the nondisclosure. (30) The discovery of a Brady violation exposes an infringement of the criminal defendant's constitutional rights; however, studies demonstrate that prosecutors are rarely reprimanded for these violations. (31) Legal commentators have argued that because it is unlikely that a defendant will discover what material evidence a prosecutor actually has, state bars should install severe disciplinary procedures to deter any intentional or negligent misconduct by prosecutors. (32)

    2. Model Rule 3.8(d): Prosecutor's Ethical Discovery Duty

      Rule 3.8(d) of the ABA's Model Rules of Professional Conduct requires prosecutors to

      make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, [to] disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor. (33) The ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 09-454 in July 2009 in response to the difficulty in finding the distinction between this ethical obligation and the constitutional obligation imposed by Brady and its progeny. (34) The ABA points out that this ethical obligation to disclose is much broader than the constitutional obligation created by the Supreme Court. (35) The scope is expanded in the ethics field due to the prosecutor's role and responsibility in establishing justice "and [to make sure] that special precautions are taken to prevent and to rectify the conviction of innocent persons." (36)

      Rule 3.8(d) abandons the high threshold "material" evidence standard established by the Supreme Court, settling the issue of requiring prosecutors to decide what evidence has "reasonable probability" to produce a different verdict. (37) Rule 3.8(d) further separates itself from the constitutional obligation by specifically including the requirement to disclose favorable "information" as well, and not just "evidence." (38) Furthermore, the ABA notes that Rule 3.8(d)'s "timely disclosure" requirement is designed for the defendant to get the most effective use out of evidence and, therefore, once a prosecutor knows of its existence, the information must be disclosed "as soon as reasonably practical." (39) In contrast to the decisions by the Supreme Court, the ABA explicitly states disclosure must be made pre-plea, because one of the "most significant purposes" for the disclosure requirement is to assist the defendant in determining whether to plead guilty. (40)

      In sum, the ABA clarifies that Rule 3.8(d)--unlike the constitutional disclosure obligation--does not require the prosecutor to use pro-hoc analysis in determining what evidence to disclose, but instead, mandates that he or she must focus on whether the suppression contrasts with the interests of fairness and the ability of a defendant to make an informed decision. (41) The ABA encourages prosecutors to err on the side of disclosure when dealing with information unknown to the defendant. (42) Legal commentators have found that while ABA Formal Opinion 09-454 provides the proper guidance for the courts, prosecutors, and state bar associations, it is too soon to recognize the impact it will have on state ethics authorities. (43) Although rare, some jurisdictions require similar broad disclosure standards and have installed "open-file discovery,"...

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