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Brady & Giglio Manual with Kansas Case

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Brady & Giglio Manual with Kansas Case A PROSECUTOR’S GUIDE TO PRODUCING Brady & Giglio EVIDENCE. Kansas County & District Attorney’s Association August 2017 FOREWARD The Brady/Giglio cases and their progeny impose a complex framework of requirements upon prosecutors regarding their duty to disclose material exculpatory evidence to defendants. This complex body of law is not easily summarized, and each office and attorney should diligently research specific case issues as they arise. Additionally, each individual office must decide which policies and procedures to enact to ensure compliance with these duties. This manual is meant to be a resource and starting point for such issues. As with any legal research, care should be exercised when relying upon cited cases and attorneys are responsible for ensuring the viability of the laws cited. KCDAA would like to thank the Michigan Prosecuting Attorney’s Coordinating Council for use of their materials in putting together this manual. 1 | P a g e “The [prosecuting 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 shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Berger v United States, 295 US 78, 88; 55 S Ct 629, 633; 79 L Ed 1314 (1935). 2 | P a g e THE SPECIAL RESPONSI BILITIES OF A PROSEC UTOR Although the ethical duties that apply to all attorneys apply equally to prosecutors, there are additional ethical responsibilities applicable solely to prosecutors. KRPC 3.8 Advocate: Special Responsibilities of a Prosecutor The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; (b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing; (d) 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, disclose to the defense and the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and (e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: (1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information; (f) except for statements that are necessary to inform the public of the nature and the extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this rule. I E S \ A PROSECUTOR’S DUTIES UNDER BRADY AND GIGLIO MUST BE VIEWED IN LIGHT OF THESE SPECIAL DUTIES AND OBLIGATIONS. 3 | P a g e WHAT IS BRADY AND TO WHOM DOES IT APPLY? THE DUTY TO DISCLOSE MATERIAL EXCULPATORY EVIDENCE In Brady v. Maryland, 373 US 83, 87, 83 S Ct 1194, 10 L Ed 2d 215 (1963), the United States Supreme Court held that due process requires the prosecution to disclose evidence favorable to the accused, where such evidence is material to guilt or punishment. “[S]uppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. This rule is followed in Kansas, see State v. Warrior, 294 Kan. 484, 505- 06, 277 P.3d 1111, 1127 (2012); See also State v. Francis, 282 Kan. 120, 149-50, 145 P.3d 48, 71 (2006) (citing State v. Quinn, 219 Kan. 831, Syl. P3, 549 P.2d 1000 (1976)). It was also recently reaffirmed by the United States Supreme Court, “Under Brady, the State violates a defendant’s right to due process if it withholds evidence that is favorable to the defense and material to the defendant’s guilt or punishment.” Smith v. Cain, 132 S. Ct. 627, 630, 181 L. Ed. 2d 571 (2012). The principle…is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: ‘The United States wins its point whenever justice is done its citizens in the courts.' A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not ‘the result of guile,’… Brady, 373 US at 87-88. Though seemingly simple on its face, as with many legal issues, application of the rule has resulted in a large body of case law, both state and federal, regarding to whom the rule applies, when it applies and what types of evidence must be disclosed. 4 | P a g e GIGLIO: THE REQUIREMENT TO DISCLOSE IMPEACHMENT EVIDENCE Giglio v. United States, 405 U.S. 150, 155, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), extended the scope of Brady to include relevant impeachment evidence. As the Court explained in United States v. Bagley, 473 U.S. 667, 678, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985), “[i]mpeachment evidence . falls within the Brady rule” (citing Giglio, 405 US at 154). Under Brady, such exculpatory evidence includes the contents of plea agreements with key government witnesses, which the prosecution must reveal. California v. Trombetta, 467 U.S. 479, 485 (1984). The disclosure obligation under Brady includes evidence that could be used to impeach the credibility of a witness. “[W]hether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor’s office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government. To the extent this places a burden on the large prosecution offices, procedures and regulations can be established to carry that burden and to insure communication of all relevant information on each case to every lawyer who deals with it.” Giglio, 405 US at 154 5 | P a g e FAVORABLE EVIDENCE K NOWN TO THE POLICE Although Brady initially imposed an absolute duty of disclosure on prosecutors, subsequent cases have expanded that duty to police as well. In Kyles v. Whitley, 514 U.S. 419, 437, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995), the United States Supreme Court held that Brady encompasses evidence known only to investigators and not to the prosecutor. See also State v. Francis, 282 Kan. at 150 (citing Kyles v. Whitley, 514 U.S. 419, 438, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995)). Thus, to comply with Brady a prosecutor “has a duty to learn of any favorable evidence known to the others acting on the government's behalf in this case, including the police.” Strickler v. Greene, 527 U.S. 263, 281, 119 S. Ct. 1936, 144 L Ed 2d 286 (1999) (internal quotation marks omitted, emphasis added). In Strickler, the withheld information consisted of notes taken by a detective during interviews with a key witness and letters from the witness to the detective. 527 U.S. at 266 & 273–75. See also Youngblood v. West Virginia, 547 U.S. 867, 869–70, 126 S. Ct. 2188, 165 L. Ed. 2d 269 (2006) (confirming that Brady reaches evidence known to the police but not the prosecutor) 6 | P a g e THE COMPONENTS OF A BRADY VIOLATION To assert a successful Brady claim, a defendant must show the following three essential elements: “[1] [t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must have been suppressed by the State, either willfully or inadvertently; and [3] prejudice must have ensued.” Strickler, 527 U.S.
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