BRADY/EXCULPATORY EVIDENCE

LINDSEY CHARLES ROBERTS Williamson County District Attorney's Office 405 Martin Luther King St., No. 1 Georgetown, TX 78626 (512) 943-1234/ (512) 943-1255-Fax [email protected]

State Bar of Texas 36th ANNUAL ADVANCED CRIMINAL LAW COURSE July 26-29, 2010 San Antonio

CHAPTER 31

LINDSEY CHARLES ROBERTS Assistant District Attorney Williamson County District Attorney’s Office 405 Martin Luther King Street, No. 1 Georgetown, Texas 78626

Education: Southern Methodist University Juris Doctor, Law, 1989-1992

University of Texas, Austin Bachelor of Arts, Psychology/History, 1985-1989

Franklin College - Lugano, Switzerland Spring Semester 1988

Work Experience:

Williamson County District Attorney’s Office Assistant District Attorney, 2005 - present

Texas District & County Attorneys Association Director of Training, 2000 - 2005

Dallas County Criminal District Attorney’s Office Assistant District Attorney, 1993 - 2000

Dallas County District Courts Staff Attorney, 1993

Court of Criminal Appeals, Austin Briefing Attorney for Judge Sam Houston Clinton, 1992 - 1993

Boards & Commissions:

Criminal Law Exam Commission, Member, 2008 - present Williamson County Bail Bond Board, Secretary, 2007 - 2009

Professional Affiliations:

Board Certified, Criminal Law, Texas Board of Legal Specialization, 2002 Texas District & County Attorney’s Association National District Attorneys Association

Brady/Exculpatory Evidence Chapter 31

TABLE OF CONTENTS

I. INTRODUCTION ...... 1

II. THE CONSTITUTIONAL RIGHT TO EXCULPATORY EVIDENCE ...... 1 A. Suppression of Evidence ...... 1 B. What Constitutes ―Favorable‖ Evidence? ...... 3 C. Was the Evidence Material? ...... 3

III. DOES A LATE DISCLOSURE CONSTITUTE SUPPRESSION? ...... 5 A. Effective Use at Trial ...... 5 B. Continuance ...... 5

IV. GUILTY PLEAS ...... 5

V. FAILURE TO PRESERVE EVIDENCE ...... 6

VI. BAR DISCIPLINARY RULES ...... 6

VII. PRACTICAL TIPS FOR PROSECUTORS AND DEFENSE COUNSEL ...... 7 A. Tips for the State ...... 7 B. Tips for the Defense ...... 7

VIII. CONCLUSION ...... 7

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Brady/Exculpatory Evidence Chapter 31

BRADY/EXCULPATORY EVIDENCE 93 S.W.3d 487, 498-99 (Tex. App.--Texarkana 2002, pet. ref'd). I. INTRODUCTION This paper is intended to aid prosecutors in 1. The ―Prosecutorial Team‖ satisfying their obligations under Brady v. Maryland, 373 The prosecutor's office "is an entity" for due process U.S. 83, 83 S.Ct. 1194, 10 L. Ed. 2d 215 (1963) and purposes. See Giglio v. United States, 405 U.S. 150, 154, subsequent cases, and give the defense bar a glimpse of 31 L. Ed. 2d 104, 92 S.Ct. 763. Moreover, the Supreme the battle they face when raising a Brady claim. We have Court has decided that the State is deemed to possess attempted to set out the applicable standards for evidence that is in the possession of any part of the determining whether and when certain information or ―prosecutorial team.‖ Kyles v. Whitley, 514 U.S. at 437, evidence should be divulged to the defense, and what 115 S. Ct. at 1567, 131 L. Ed. 2d at 507. Consequently, consequences may occur when the evidence is either the State can be found to ―possess‖ evidence for Brady inadvertently or intentionally not disclosed. Additionally, purposes whether or not the prosecutor has actual we have provided the standards for reversal employed by possession or knowledge of the evidence. Knowledge of the Courts when reviewing Brady claims. Lastly, we the evidence can be imputed to the prosecutor if anyone discuss the State Bar rule on exculpatory evidence and on the ―prosecutorial team‖ has knowledge of the some practical tips on how to avoid Brady claims and evidence. Most often, this is used to extend to evidence accusations of prosecutorial misconduct.1 in the hands of the police or police agencies. Accordingly, the United States Supreme Court in II. THE CONSTITUTIONAL RIGHT TO Kyles held that the State’s failure to disclose two eye- EXCULPATORY EVIDENCE witnesses’ statements violated Brady even though the In Brady v. Maryland, the United States Supreme statements were only known to the police and not to the Court held that the prosecution’s suppression of evidence prosecutor. The statements cast doubt on the previous favorable to a defendant violates due process if the identifications made by those witnesses and were useful evidence is material either to guilt or punishment, for impeachment. Id. The Court justified the affirmative without regard to the good or bad faith of the obligation by stating that ultimately, it is the prosecution. Brady, 373 U.S. at 87; Harm v. State, 183 responsibility of the prosecutor to ―learn of any favorable S.W.3d 403 (Tex. Crim. App. 2006). In later cases, the evidence known to others acting on the government’s Supreme Court extended Brady and held that the behalf in the case.‖ 514 U.S. at 437, 115 S. Ct. at 1567, prosecutor’s duty to disclose such evidence applies even 131 L. Ed. 2d at 507. Thus, a prosecutor’s duty under if there has been no request by the defendant, United Brady extends to evidence in the possession of the other States v. Agurs, 427 U.S. 97 (1976), and that this duty employees of his or her office, and any law enforcement includes both impeachment and exculpatory evidence. connected to the investigation and prosecution of the United States v. Bagley, 473 U.S. 667 (1985). case. Ultimately, the Courts have developed a three prong test to analyze these claims. In order to prove a Due a. Participation on the ―Prosecutorial Team‖ Process violation under Brady, a defendant must To be part of the ―prosecutorial team,‖ the agency, establish: (1) the state suppressed evidence; (2) the or employees of the agency, must have participated in the suppressed evidence is favorable to defendant; and (3) investigation of the defendant on the prosecutor’s behalf. the suppressed evidence is material. Little v. State, 991 Governmental agencies, both criminal justice agencies S.W.2d 864, 866 (Tex. Crim. App. 1999); Thomas v. and others, that investigate defendants, but not on behalf State, 841 S.W.2d 399, 402-03 (Tex. Crim. App. 1992). of the prosecution in a given case are not considered a part of the ―prosecutorial team.‖ A. Suppression of Evidence In Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. The first requirement of proving a Brady violation App. 2000), an ME’s investigator's report made prior to requires that the prosecution actively suppressed the pathologist's receipt of the body which stated that the evidence or negligently failed to disclose it to the "next of kin denies boyfriend ever hurt deceased or defense. Juarez v. State, 439 S.W.2d 346, 348 (Tex. would sexually assault him‖ was held not in the Crim. App. 1969); Smith v. State, 840 S.W.2d 689, 693 possession of the State. Similarly, in Shanks v. State, 13 (Tex. App.--Fort Worth 1992, pet. ref'd); Taylor v. State, S.W.3d 83, 86 (Tex. App.–Texarkana 2000, no pet.), the Department of Criminal Justice was not part of the ―prosecutorial team‖ where the information in question was the disciplinary records of a guard’s supervisor who 1 I would like to give credit and thanks to Randy Leavitt, was a peripheral witness who did not testify about the Angela North, and Giselle Horton, who prepared the bulk of offense in question. this paper for the 2007 Advanced Criminal Law Course. I have Furthermore, an entity or agency must participate in taken their paper and updated it where appropriate. 1 Brady/Exculpatory Evidence Chapter 31 the current criminal investigation of the accused to be was seeking. Fox v. State, 175 S.W.3d 475, 489 (Tex. deemed part of the ―prosecutorial team.‖ Evidence App.–Texarkana 2005, pet. ref’d). obtained in previous investigations or unrelated However, if the defendant’s knowledge of the investigations conducted by someone other than the evidence is attenuated or uncertain, the duty to disclose prosecutor’s office, if unknown to the prosecutor, is may, in fact, extend to that evidence. Therefore, the State generally not considered Brady evidence. Harm v. State, violated Brady by failing to disclose exculpatory 183 S.W.3d 403 (Tex. Crim. App. 2006)(CPS was held statements made by the defendant’s neighbor. The not to be a part of the ―prosecutorial team‖ where tardily State’s argument that the defendant could have used produced reports were created in the course of a non- reasonable diligence to interview her own neighbor was criminal investigation unrelated to the defendant). rejected by the court. Flores v. State, 940 S.W.2d 189, 190 (Tex. App–San Antonio 1996, no pet.). Moreover, if b. Reports from experts made on behalf of the State the non-disclosed evidence is significantly favorable and Reports and opinions of experts are usually material, courts have usually analyzed the accessibility of considered part of the investigation effort. This means the evidence narrowly. that information received from an expert (even if outside In Jackson v. State, 552 S.W.2d 798, 804 (Tex. the usual group of State’s experts) is deemed to be Crim. App. 1976), the affidavits of a welfare worker that possessed by the State once someone on the were favorable to the defendant did not constitute Brady ―prosecutorial team‖ receives the expert’s reports. Ex evidence because the defendant had subpoenaed the parte Mowbray, 943 S.W.2d 461 (Tex. Crim. App. welfare worker’s file but had not examined it thoroughly. 1996). Similarly, in Cepeda v. State, 2006 Tex. App. LEXIS 2143 (Tex. App.–San Antonio 2006, no pet.)(not 2. Reasonable Diligence Exception designated for publication), the court found that the Although, the State has an affirmative duty to victim’s medical records were not unconstitutionally disclose Brady evidence if it is in their possession, the withheld since they were accessible to the defendant. Courts have held that this duty is further limited to See also Taylor v. State, 93 S.W.3d 487, 499 (Tex. App.– information that the defendant or defense counsel could Texarkana 2002, pet. ref’d)(there is no duty to disclose not have obtained exercising reasonable or due diligence. information that is equally accessible to the defendant). Parr v. Quarterman, 472 F.3d 245, 254 (5th Cir. 2006). But if the prosecutor has represented or stated to the Hence, there is no duty to disclose information that is defense that the State has disclosed all material and known or reasonably available to the defendant. Courts favorable evidence, by having an open-file policy for have generally relied on the accessibility of the example, the defendant is not expected to find material information to determine whether or not due diligence evidence that is equally accessible by the defense. Banks would have been enough. If the evidence was equally v. Dredtke, 540 U.S. 668, 691, 124 S. Ct. 1256, 1272, accessible to the defendant, it is not subject to Brady. 157 L. Ed. 2d 1166, 1189 (2004). The U.S. Supreme Banks v. Dredtke, 540 U.S. 668, 691, 124 S. Ct. 1256, Court decisions ―lend no support to the notion that the 1272, 157 L. Ed. 2d 1166, 1189 (2004). defendant must scavenge for hints of undisclosed Brady material when the prosecution represents that all such a. Evidence Known or Accessible to Defendant material has been disclosed.‖ Id. at 695. In Blackmon v. Scott, 22 F.3d 560 (5th Cir. 1994), the statements of the defendant’s girlfriend showing the b. Evidence Not Yet Compiled defendant’s jealous nature were not considered Furthermore, there is no duty for the State to suppressed. Although, the statements were favorable to facilitate the compilation of evidence that is accessible to the defendant as evidence of a passion killing, because the defense for compiling. For example, pornographic the information was known to the defendant, the State pictures on the defendant’s computer that the defendant was not obligated to disclose it. See also Hayes v. State, knew existed were not Brady evidence, since the 85 S.W.3d 809, 815 (Tex. Crim. App. 2002)(defendant’s computer was available to the defendant for examination letter to victim’s mother expressing remorse for having and testing throughout and before the trial. United States committed the murder not Brady). v. Runyan, 290 F.3d 223, 245-246 (5th Cir. 2002). In another case, the State’s failure to disclose the But, to the extent that favorable evidence arises psychiatric history of the victim in a child abuse case was from the fact that the State mishandled the evidence not a Brady violation, since the record revealed that while compiling it, the mere existence of the facts from defense counsel had actual knowledge of the substance of which the defense could deduce the mishandling does not the evidence that he claimed was suppressed. Defense suffice. The State must help compile the information that counsel cross-examined several witnesses about the shows that it mishandled the evidence. Taylor v. State, 93 victim’s psychiatric history, thereby indicating that the S.W.3d 487, 499 (Tex.App.–Texarkana 2002, pet. ref’d). defendant had sufficient knowledge of the evidence he

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B. What Constitutes “Favorable” Evidence? Harm v. State, 183 S.W.3d 403 (Tex. Crim. After showing that the State suppressed evidence, App. 2006). the defendant must then show that the suppressed (b) Undisclosed evidence of victim’s prior drug evidence was ―favorable‖ to the defendant. The question use was deemed inadmissible and therefore not then becomes what exactly is ―favorable?‖ Courts have subject to Brady. Lagrone v. State, 942 S.W.2d held that either exculpatory or impeachment evidence can 602, 615 (Tex. Crim. App 1997). be favorable. United States v. Bagley, 473 U.S. 667, 676, (c) The testimony of a nurse that attended to the 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481, 490 (1985). victim of a sexual assault in the hospital was inadmissible hearsay not subject to Brady. 1. Exculpatory and Impeachment Evidence Iness v. State, 606 S.W.2d 306, 310 (Tex. Exculpatory evidence is ―evidence which tends to Crim. App. 1980). justify, excuse, or clear the defendant from alleged fault (d) A prior inconsistent statement made by a State or guilt.‖ Thomas v. State, 841 S.W.2d 399, 404 (Tex. witness during another investigation would be Crim. App. 1992). Impeachment evidence is evidence inadmissible as an immaterial or a collateral that is ―offered to dispute, disparage, deny or contradict.‖ matter, so it was not subject to Brady. Ramos Thomas v. State, 841 S.W.2d at 404; Ex parte Kimes, 872 v. State, No. 13-03-00217-CR, 2005 Tex. App. S.W.2d 700, 702-03 (Tex. Crim. App. 1993). LEXIS 6617 at *5 (Tex. App.–Corpus Christi Some general examples of information that various Aug. 18, 2005, no pet.)(not designated for courts have concluded to be ―favorable‖ include: publication). (e) The personnel records of a testifying police (a) Promises of immunity or other favorable officer indicating that he was dismissed from treatment to State’s witnesses, Untied States v. his job for reasons which included lying were Pope, 529 F.2d 112 (9th Cir. 1976); not subject to Brady because they were (b) Prior Criminal Histories of State’s witnesses, inadmissible as impeachment evidence of United States v. Auten, 632 F.2d 478 (5th specific instances of conduct. Dalbosco v. Cir.1980); State, 978 S.W.2d 236 (Tex. App.–Texarkana (c) Prior inconsistent statements of State’s 1998, pet. ref’d). witnesses regarding the defendant’s alleged (f) A CPS report that included statements by the criminal conduct, United States v. Herberman, victim of previous and similar sexual assault 583 F.2d 222 (5th Cir.1975); allegations was disclosed to the defense a day (d) Prior perjury or false testimony of a State’s before trial, but because the contents of the witness; report would have been inadmissible at trial, (e) Monetary rewards or inducements to State’s the late disclosure did not prejudice the witnesses; defendant. Lempar v. State, 191 S.W.3d 230 (f) Confessions to the crime in question by others; (Tex. App.–San Antonio 2005, pet. ref’d). (g) Information reflecting bias or prejudice by (g) Polygraph results of a key witness held not to State’s witnesses against the defendant; be Brady material by the U.S. Supreme Court (h) Witness statements that others committed the for two reasons. First, the results, short of a crime in question; stipulation by the parties, are not admissible; (i) Inconsistent or contradictory scientific tests, and secondly, the defendant failed to establish United States v. Fairman, 769 F.2d 386 (7th that disclosure of the results would have Cir.1985); resulted in a different outcome at trial. Wood (j) the failure of any witness to make a positive v. Bartholomew, 516 U.S. 1, 116 S. Ct. 7, 133 identification of the defendant. Hall v. State, L. Ed. 2d 1 (1995). Nos. 03-07-00626-CR thru -00627 (Tex.App.—Austin 5/11/09). Remember, however, the trial court determines the admissibility of the evidence. So, if the admissibility of 2. Inadmissible Evidence evidence is unclear, the State would be best served to Many courts have held that evidence that would be tender the evidence to the court for an in camera inadmissible at trial under the rules of evidence cannot be inspection. ―favorable‖ to the defendant, and so is not subject to Brady. These cases have included: C. Was the Evidence Material? Assuming that a defendant proves that the State did (a) CPS records related to previous, unrelated (1) improperly suppress (2) favorable evidence, he still incidents would have been inadmissible carries the burden of finally proving that the evidence hearsay and so had no impeachment value. was material, i.e., that it created a probability sufficient

3 Brady/Exculpatory Evidence Chapter 31 to undermine confidence in the outcome of the 3. Applications of Materiality Test proceedings. See Thomas v. State, 841 S.W.2d 399, 404 In a case out of Texas, a defendant claimed that the (Tex. Crim. App. 1992). "Evidence is material under the State withheld evidence that one of its star witnesses was third Brady factor where there is a 'reasonable actually a paid police informant. The U.S. Supreme probability' that the outcome of the trial would have been Court, reversing the Fifth Circuit’s decision, held that the different if the suppressed evidence had been disclosed to State had violated its Brady duty. Evidence that the the defendant." Taylor, 93 S.W.3d 93 at 501. Strickler v. witness was a paid police informant was materially Greene, 527 U.S. 263, 280, 119 S. Ct. 1936, 1948, 144 favorable for impeachment purposes and created a L. Ed. 2d 286, 301 (1999) quoting United States v. reasonable probability of a different result had it been Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 87 L. Ed. 2d disclosed to the defense. Banks v. Dredtke, 540 U.S. 481 (1985). 668, 703, 124 S. Ct. 1256, 1279, 157 L.Ed. 2d 1166, 1197 (2004). 1. Reasonable Probability Conversely, the State’s failure to disclose prior A ―reasonable probability‖ is a probability sufficient inconsistent statements by a witness in grand jury to undermine the confidence in the outcome of the trial. testimony did not violate Brady, since the defense failed Strickler v. Greene, 527 U.S. 263, 280 (1999). The mere to show any material inconsistencies. Castillo v. Johnson, possibility that an item of undisclosed information might 141 F.3d 218 (5th Cir. 1998). have helped the defense, or might have affected the Evidence, the disclosure of which would have outcome of the trial, does not establish materiality in the permitted the defense to significantly undermine an constitutional sense. Dickson v. Quarterman, 462 F.3d important opposing witness, is material. This was the 470, 478 (5th Cir. 2006); Hampton v. State, 86 S.W.3d case when a diary kept by a policewoman who was 603, 612-13 (Tex. Crim. App. 2002). To establish assigned to the security of the State’s star witness was materiality under the third prong of Brady, a defendant not disclosed to the defense. Ex parte Richardson, 70 bears the burden of showing that, in light of all the S.W.3d 865 (Tex. Crim. App. 2002). The diary tracked evidence, it is reasonably probable that the outcome of the dishonesty of the State’s witness including several the trial would have been different had the prosecutor false accusations against the police officers made by the made a timely disclosure. Chandler v. State, 278 S.W.3d State’s witness during the months that the police officer 70 (Tex.App—Texarkana 2009); Hampton, 86 S.W.3d was assigned to protect her. Id. The diary was material at 612. even though the defense was able to impeach the credibility of that witness using other evidence because 2. Entirety of the Record evidence that several police officers believe the witness Furthermore, ―materiality‖ must be judged ―in the to be dishonest would have significantly undermined the context of the entire record.‖ United States v. Agurs; witness’s credibility. Id. Turpin v. State, 606 S.W.2d 907, 916 (Tex. Crim. App. But, if defense counsel was able to cross-examine 1980). So, when a police officer testified that the the witness with essentially the same facts that she would defendant had scratches on his face after the incident, a have been able to with the non-disclosed evidence, the photo taken of the defendant the morning after the evidence is not material. Wyatt v. State, 23 S.W.3d 18 incident without any scratches on his face would have (Tex. Crim. App. 2003). potentially been material. However, given that the police Likewise, evidence that the defendant in a drug officer’s testimony about the scratches had been charge did not own the house where the drugs were impeached by other means, the photo was not material. found was not material in light of the overwhelming Boudreaux v. State, 878 S.W.2d 701, 706 (Tex. App.– evidence that defendant rented and lived in the house. Beaumont 1994, no pet.). Olivarez v. State, 171 S.W.3d 283 (Tex. App.–Houston The ―materiality‖ of the evidence is also related to [14th Dist.] 2005, no pet.). the strength or weakness of the surrounding case. Evidence that two of the State’s witnesses were on Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. probation for misdemeanors, although potentially 1992) (―a verdict which is only weakly supported by the favorable to the defendant for impeachment purposes, record is more likely to be affected by [Brady] error than was not material in light of the entire record. Drew v. a verdict which is strongly supported‖); Gowan v. State, State, 76 S.W.3d 436, 448 (Tex. App.–Houston [14th 927 S.W.2d 246 (Tex. App.–Ft. Worth 1996, pet. ref’d) Dist.] 2002, pet. ref’d). (any Brady error must be examined in the context of the In the end, to establish materiality under the third overall strength of the state’s case.). The test for prong of Brady, a defendant must prove, that in the light materiality ―usually involves balancing the strength of of all the evidence, it is reasonably probable that the the exculpatory evidence against the evidence supporting outcome would have been different had the State made a conviction.‖ Hampton v. State, 86 S.W.3d 603, 613 timely disclosure. (Tex. Crim. App. 2002).

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III. DOES A LATE DISCLOSURE CONSTITUTE B. Continuance SUPPRESSION? Moreover, several Courts have found that a When materially favorable evidence is disclosed at defendant’s failure to request a continuance is relevant to trial, the issue is whether the tardy disclosure prejudiced whether the late disclosure of Brady evidence at trial was the defendant. Little v. State, 991 S.W.2d 864 (Tex. prejudicial. State v. Fury, 186 S.W.3d 67 (Tex. App.– Crim. App. 1999). In Little, the State’s chemist admitted Houston [1st Dist.] 2005, pet. ref’d (a defendant’s failure to the prosecutor right before testifying that he had to request a continuance indicates that tardy disclosure of misplaced the paper records of the tests he had performed evidence was not prejudicial); see also Gutierrez v. State, even though he remembered the results. The prosecutor 85 S.W.3d 441, 452 (Tex. App.–Austin 2002, pet. ref’d); told defense counsel before cross-examination. The late Spann v. State, 2008 Tex. App. LEXIS 7871 (Tex. App. disclosure did not prejudice the defendant because Beaumont, Oct. 15, 2008)(unpublished opinion). defense counsel was able, during cross-examination, to To retain a Brady claim, the defendant must offer impeach the credibility of the State’s chemist based on proof that he was not able to make effective use of the this information. Id. evidence at trial. When the defendant failed to ask for a The defendant bears the burden of proving recess or a continuance to look at the newly-discovered prejudice. He can do this by showing that counsel was evidence, the reviewing court assumes that the evidence not able to make effective use of the newly-discovered did not prejudice the defendant. Adams v. State, No. 01- evidence at trial. 05-00201-CR, 2006 Tex. App. LEXIS 2559 at *17 (Tex. App.–Houston [1st Dist.] 2006, no pet.); Ray v. State, No. A. Effective Use at Trial 14-06-00205-CR, 2007 Tex. App. LEXIS 1131 (Tex. Late disclosure prejudices the defendant only if the App.–Houston [14th Dist.] Feb. 15, 2007, no pet. h.). defense didn’t get the evidence in time to make effective use of it at trial. Palmer v. State, 902 S.W.2d 561 (Tex. IV. GUILTY PLEAS App.–Houston [1st Dist.] 1995, no pet.). A defendant’s Under Federal Law, the prosecutor’s duty to loss of the opportunity to conduct voir dire or opening disclose materially favorable evidence does not statement differently, had he known the undisclosed necessarily extend to defendants who plead guilty. evidence, did not prejudice him since counsel was able to United States v. Ruiz, 536 U.S. 622, 122 S. Ct. 2950, 153 present the Brady evidence to the jury during the rest of L. Ed. 2d. 586 (2002). Moreover, Federal Courts have the trial. Id. held that a defendant can waive the Brady right by A defendant’s loss of the opportunity to choose a pleading guilty. In Ruiz, the defendant waived her Brady jury trial rather than a bench trial did not prejudice him right when she pled guilty under a California statute since there was not a reasonable probability that the permitting defendants to fast-track a guilty plea. In Ruiz, outcome of the trial would have been different. Nelloms the United State’s Supreme Court held that the v. State, 63 S.W.2d 887, 890-892 (Tex. App.–Ft. Worth Constitution does not require the Government to disclose 2001, pet ref’d). material impeachment evidence prior to a defendant In a sexual assault of a child case, there was no entering a plea agreement. See also Orman v. Cain, 228 prejudice from a late disclosure of evidence that the F.3d 616, 617 (5th Cir. 2002) (a defendant who pleads victim wasn’t sure about the extent of sexual assault guilty waives her Brady rights). since the court had found that earlier disclosure would Similarly, the duty does not extend to defendants not have changed the defendant’s trial strategy. who plead nolo contendere. Matthew v. Johnson, 201 Khoshayand v. State, 179 S.W.3d 779, 783 (Tex. App.– F.3d 353, 360 (5th Circ. 2000) cert. denied, 531 U.S. 830 Dallas 2005, no pet.). (2000). In Mowbray v. State, the State’s disclosure of a Even so, the Court of Criminal Appeals has held a favorable expert report produced two weeks prior to trial plea was involuntary where the State failed to disclose was considered untimely. 943 S.W.2d 461 (Tex. Crim. favorable information before entry of a guilty plea. Ex App. 1996). An out-of-state blood splatter expert parte Lewis, 587 S.W.2d 697 (Tex. Crim. App. completed a report based on the physical evidence whose 1979)(failure to disclose letter from psychiatrist that results contradicted those in the report done by the contained ―strong indications of viable insanity defense State’s expert and thus tended to exculpate the defendant. and that issue of defendant’s competency should be That report was disclosed to the defendant but not in a explored). forthcoming way. Id. The court held that the defendant More recently, Judge Cochran referenced Lewis in a was prejudiced by the untimely and not forthcoming concurring opinion noting that the Court of Criminal disclosure given the materiality of the expert’s report. Id. Appeals has held that the State’s duty to disclose favorable information (whether relating to competence, guilt, or punishment) extends to defendants who plead guilty. Ex parte Johnson, No. AP-76,153 (Tex. Crim.

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App. 5/20/09). Johnson involved a recantation by the at 705 (video of security tape of robbery at Wal-Mart that victim that allegedly had not been disclosed to the showed no faces was not preserved); Salazar v. State, defense, and Judge Cochran writes that ―any assertion by 185 S.W.3d 90 (Tex. App.--San Antonio 2005, no a material witness that contradicts or casts serious doubt pet.)(video of prison riot not preserved because policy of upon the existence of an essential element of the offense prison was to tape over in fourteen days); Mahaffey v. is core Brady exculpatory evidence that must be divulged State, 937 S.W.2d 51 (Tex. App.--Houston [1st Dist.] to the defense regardless of whether the defendant 1996, no pet.) (video erased or did not record, no intends to plead Guilty.‖ Id. Thus far, the Court has not evidence of bad faith); Chandler v. State, 278 S.W.3d 70 had the occasion to address the effect of the Ruiz decision (Tex.App.—Texarkana 2009)(surveillance videos did not on this line of cases. clearly show the defendants maintained for sixty days and then discarded); Ramirez v. State, 301 S.W.3d 410 V. FAILURE TO PRESERVE EVIDENCE Tex. App. – Austin 2009). Under Brady, a prosecutor has an affirmative duty to turn over to the accused all exculpatory or impeachment VI. BAR DISCIPLINARY RULES evidence, irrespective of the good faith or bad faith of the The Texas Disciplinary Rules of Professional prosecution, which is favorable to the defendant and is Conduct impose a similar duty on prosecutors to disclose material to either guilt or punishment. Kyles v. Whitley, certain types of evidence. Rule 3.09(d) requires a 514 U.S. 419, 432-33, 115 S. Ct. 1555, 1565, 131 L. Ed. prosecutor to: 2d 490 (1995); United States v. Bagley, 473 U.S. 667, 674, 105 S. Ct. 3375, 3379, 87 L. Ed. 2d 481 (1985); make timely disclosure to the defense of all Franks v. State, 90 S.W.3d 771, 796 (Tex. App.--Fort evidence or information known to the Worth 2002, no pet.). But, in a case in which the State prosecutor that tends to negate the guilt of the fails to preserve evidence that may have been useful to an accused or mitigates the offense, and, in appellant, the courts apply a different test. Williams v. connection with sentencing, shall disclose to State, 906 S.W.2d 58, 61 (Tex. App.--Tyler 1995, pet. the defense and to the tribunal all unprivileged ref'd). The State’s failure to preserve potentially useful mitigating information known to the evidence is not a denial of due process unless a defendant prosecutor, except when the prosecutor is can show bad faith. Arizona v. Youngblood, 488 U.S. 51, relieved of this responsibility by a protective 58, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281 (1988); order of the tribunal. Thomas v. State, 841 S.W.2d 399, 402 n.5 (Tex. Crim. App. 1992); Jackson v. State, 50 S.W.3d 579, 589 (Tex. Tex. Disc. R. Prof. Conduct 3.09(d)(1989). The duty App.--Fort Worth 2001, pets. ref'd); Williams, 906 imposed by the Texas bar, as you can see, is arguably S.W.2d at 61. broader than the constitutional duty. The Bar demands Factors which are relevant in determining whether that the prosecutor turn over evidence or information that the loss of evidence violates a defendant's right to due tends to negate guilt or mitigate the offense rather than process include: 1) the level of government culpability; evidence that is materially favorable. Thus, according to 2) the likelihood that the lost evidence was exculpatory; Rule 3.09(d), the prosecutor need not ask herself whether and 3) the likelihood that the defendant was significantly the evidence has any probability of affecting or prejudiced at trial by the absence of the evidence. Davis undermining the outcome of the proceeding; rather, the v. State, 831 S.W.2d 426, 442 (Tex. App.--Austin 1992, prosecutor must only ask herself whether the evidence in pet. ref'd). question has any mitigating value. For a good discussion Several Texas appellate courts have considered the of this issue, see Edward Wilkinson, Brady and Ethics: issue, and, in each of the following cases, the courts have A Prosecutor’s Evidentiary Duties to the Defense Under found the facts did not establish evidence of bad faith. the Due Process Clause and Their Relation to the State Meador v. State, No. 2-07-439-CR, 2008 Tex. App. Bar Rules, 61 Tex. B. J. 435, 436 (May 1998). LEXIS 7906 (Tex. App.--Fort Worth Oct. 16, 2008, no Additionally, the Bar rule not only requires a pet.) (mem. op., not designated for publication) prosecutor to disclose certain ―evidence‖ but also (accidentally erased in-car video); Purvis v. State, No. ―information.‖ This implicates a greater body of 12-06-00422-CR, 2008 Tex. App. LEXIS 3962 (Tex. knowledge than the constitutional duty to disclose only App.--Tyler May 30, 2008, no pet.) (mem. op., not ―evidence‖. Note also that the rule requires the designated for publication) (loss of in car video was prosecutor to disclose the relevant evidence to the negligence, not bad faith); Smith v. State, No. 07-05- defense and the tribunal on sentencing issues. 0289-CR, 2007 Tex. App. LEXIS 5427 (Tex. App.-- Amarillo July 11, 2007, no pet.) (mem. op., not designated for publication) (no evidence of bad faith in failing to preserve video recording); McGee, 210 S.W.3d

6 Brady/Exculpatory Evidence Chapter 31

VII. PRACTICAL TIPS FOR PROSECUTORS AND Texarkana 2002, no pet.); Young v. State, 183 S.W.3d DEFENSE COUNSEL 699, 705 (Tex. App.–Tyler 2005, pet. ref’d). A. Tips for the State 1. Open-File Policies VIII. CONCLUSION An ―open-file‖ policy significantly decreases the The State bears a unique obligation to (1) risk of a Brady violation for a negligent failure to balance the net effect of any given piece of favorable disclose exculpatory information. Harm v. State, 183 evidence in order to determine whether that evidence is S.W.3d 403 (Tex. Crim. App. 2006); Brewer v State, 126 favorable and material, and (2) disclose any evidence S.W.2d 295, 303-06 (Tex. App.–Beaumont 2004, pet. about which such a conclusion has been made. This is ref’d). However, an open-file policy does not preclude not an easy task and the prosecutor would be well-served the possibility that Brady violations could still take place. by disclosing any evidence that he thinks is potentially Vega v. State, 898 S.W.2d 359 (Tex. App.–San Antonio favorable. It is better to disclose all the evidence than 1995, pet. ref’d). An intentional failure to disclose will run the risk of being second-guessed on appeal, or worse, be a violation regardless of an open-file policy. by a grievance panel!

2. In Camera Review When in doubt, a prosecutor can protect himself by tendering the evidence to the Court for an in camera review, thus placing the burden on the court to determine if the evidence is favorable and material. This can be especially helpful when dealing with unflattering evidence regarding one of the State’s witnesses. The prosecutor may be convinced that the evidence is not admissible, however, it is the court that ultimately makes that call. Therefore, the safer course is to produce the information to the trial court for a ruling on its disclosure and admissibility.

B. Tips for the Defense 1. In Camera Review A defendant can petition the court for an in camera review of the prosecutor’s evidence if the defendant presents a plausible showing that material and favorable evidence exists. United States v. Lowder, 148 F.3d 548, 551 (5th Cir. 1998); Michaelwicz v. State, 186 S.W.3d 601 (Tex. App.–Austin 2006, no pet.); Smith v. State, No. 06-09-00094-CR, 2010 Tex. App. LEXIS 4156 (Tex. App. Texarkana June 2, 2010). There is no constitutional obligation for the trial court to review the State’s file for exculpatory evidence without a specific request based on a some showing that such evidence exists. Ransonette v. State, 550 S.W.2d 36 (Tex.Crim.App. 1976).

2. Continuance When confronted with a late disclosure of Brady evidence, the defense should immediately request a continuance if needed. Otherwise, although the Texas Court of Criminal Appeals has never addressed the issue directly, most intermediate courts agree that the failure to ask for a continuance or recess once the existence of new evidence is disclosed waives the defendant’s right to a Brady complaint. Ray v. State, No. 14-06-00205-CR, 2007 Tex. App. LEXIS 1131 (Tex. App.–Houston [14th Dist.] Feb. 15, 2007, no pet h.); State v. Fury, 186 S.W.3d 67 (Tex. App.–Houston [1st Dist.] 2005) (pet. ref’d); Taylor v. State, 93 S.W.3d 487, 497 (Tex. App.– 7