Marquette Law Review Volume 52 Article 2 Issue 4 Winter 1969 Prosecutor's Duty to Disclose David J. Cannon Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation David J. Cannon, Prosecutor's Duty to Disclose, 52 Marq. L. Rev. 516 (1969). Available at: http://scholarship.law.marquette.edu/mulr/vol52/iss4/2 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. PROSECUTOR'S DUTY TO DISCLOSE DAVID J. CANNON* In the investigation of a bank robbery, the prosecuting attorney has talked to a number of bank tellers and to customers who have viewed the defendant in a line-up and who have stated, "He's the man!" The prosecutor has also talked to two other customers who observed the robbery, viewed the defendant and stated that they had not seen the defendant on the night in question. Must the prosecutor tell the defend- ant about this evidence? The United States Court of Appeals for the Second Circuit has said, in United States v. Wilkins,' that failure to do so is a denial of due process. The United States Supreme Court, in Brady v. Maryland,2 has ruled that: [T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to the guilt or to punishment, irrespective of the good faith, or bad faith of the prosecution.3 The rule formulated in Brady has caused and will continue to cause great concern among judges, prosecutors and defense attorneys even though most people are in full agreement with the principle of law for which it stands. The difficulties of the rule's application in an adversary system have been myriad. Among the questions raised by the Brady decision are the following: Must there be a demand? What is "evi- dence" for purposes of the Brady rule? What constitutes suppression? What evidence is favorable to the accused and who makes the determin- ation? When must the evidence be revealed to the defendant? The pur- pose of this article is to point out some of the diverse views on these questions. In recent years, discovery procedures in civil cases have been greatly expanded. Many legal scholars feel that the expanded availability of discovery is one of the most effective means of decreasing the backlog of cases which overburden the courts, particularly in metropolitan areas. If the old adage, "justice delayed is justice denied," has any merit, it is imperative that any method which might alleviate the delay is worthy of consideration by the legal profession. No right to pre-trial discovery in criminal cases existed until the rather recent past.4 However, the modern trend has been toward greater *United States Attorney for the Eastern District of Wisconsin. Assistance in the preparation of the appendix was given the author by second-year law stu- dent Terrence Dawiedczyk. 1326 F.2d 135 (2d Cir. 1964). 2 373 U.S. 83 (1963). 3 Id. at 87. 4 23 C.J.S. CriininalLaw § 955 (1961). 1969-701 DUTY TO DISCLOSE ease of discovery and the Federal Rules of Criminal Procedure reflect the trend.5 It should be pointed out, however, that rules for discovery in criminal cases are fraught with constitutional problems in that no rule may infringe on the right against self-incrimination. Mr. Justice Doug- las pointed this out in his statement accompanying the transmittal of 6 the Federal Rules to Congress. The Second Circuit, in Wilkins, extended the Brady rule and held that a request by the defendant is not a sine qua non to establish a duty to disclose on the prosecutor's part. The court's holding is a logi- cal extention of Brady and seems clearly consistent with Brady's under- lying philosophy. Due process cannot depend upon the request of the defendant. The extension of the rule, however, does place an added burden upon the prosecutor since he must, even in the absence of a re- quest, decide what evidence should be disclosed. It would appear that materiality and relevance of some cases would be dependent upon the theory of the defense which would be unknown to the prosecutor. Who determines what evidence is favorable? The Court of Appeals for the Fifth Circuit in Williams v. Dutton7 held that the trial court in camera should have inspected the demanded evidence to determine whether it was favorable to the defendant. The court pointed out that the right of the accused to have such evidence cannot depend on the benevolence of the prosecutor." The court cautioned, however, that un- limited discovery of the prosecutor's files would unduly impair effective prosecution of criminal cases." This case illustrates the importance of making a demand for evidence. Without the demand, the court has nothing to inspect unless it looks at the entire files of the prosecution. The Court of Appeals for the Second Circuit in United States v. Jordan0 also held that the determination of what evidence is favorable to the defendant is one for the trial court subject to appellate review. The need to make a proper record of the discovery proceedings is clear; lacking it, the appellate court has nothing to review. Contrasted with the decisions in Dutton and Jordan is the holding of the Court of Appeals for the Fourth Circuit in United States v. Frazier."' The obligation upon the Government not to suppress favorable evidence . and affirmatively to disclose . does not make it 5 See, e.g., the text of Rule 16 of the Federal Rules of Criminal Procedure in the appendix to this article at page 529, infra. 6 39 F.R.D. 276 (1966). 7400 F.2d 797 (5th Cir. 1968). 8 Id. at 800. 0 1d. at 801. 10 399 F.2d 610 (2d Cir. 1968). "1394 F.2d 258 (4th Cir. 1968). MARQUETTE LAW REVIEW [Vol. 52 incumbent upon the trial2 judge to rummage through the file on behalf of the defendant.' In Frazier, the United States Attorney advised the court that the de- fendant was aware of virtually everything in the government's file and also that there was no information which could be of aid to the de- fendant. The Wisconsin Supreme Court appears to have answered the ques- tion in yet another manner in State v. Herrington.13 Herrington's de- fense counsel requested the state to turn over all exculpatory evidence bearing on the issues of guilt or punishment. The trial court, as in Frazier, turned to the prosecutor. The court ordered that all exculpatory evidence be turned over to the defense. The prosecutor claimed that all such evidence had been made available to the defendant. On appeal, the defendant asserted that the trial court should have examined all files of the prosecutor and police department to see if its order had been complied with. The court replied: From an examination of the record, we conclude that the trial court was fully cognizant of the holding in Brady v. Alraryland1 and exercised considerable diligence in its proper application. 4 It is self-evident that this ruling is dependent upon the good faith of the prosecutor. There was nothing in the record for the appellate court to review. It would appear from Jordan and Dutton that the Second Circuit and the Fifth Circuit, if confronted with the same fact situation, would hold differently. The cases above point out the dilemma the practitioner encounters as he faces each case. Nowhere is the distinction in legal philosophies more apparent than in the opinions of Mr. Justice Fortas and Mr. Justice Harlan in the case of Giles v. Maryland.15 The defendants in Giles were convicted of the rape of a sixteen-year-old girl and they alleged that the failure of the state to disclose the past history of the prosecutrix to the defendants denied them due process of law. Mr. Justice Fortas, in a concurring opinion, enunciated his philoso- phy in the following terms: I believe that deliberate concealment and non-disclosure by the State are not to be distinguished in principle from misrepresenta- tion.G In my view, a supportable conviction requires something more than that the State did not lie. It implies that the prosecution has been fair and honest and that the State has disclosed all informa- "Id. at 262. 1341 Wis. 2d 757, 165 N.W.2d 120 (1969). "4 Id. at 774, 165 N.W.2d at 128. 1"386 U.S. 66 (1967). 161d. at 99. 1969-701 DUTY TO DISCLOSE tion known to it which may have a crucial or important effect 7 on the outcome.1 The philosophy of Mr. Justice Harlan is well stated in his dissent: The Court has held since Mooney v. Holohan, 294 U.S. 103, that a State's knowing use of perjured testimony denies a fair trial to the accused. Mooney has been understood to include cases in which a State knowingly permits false testimony to re- main uncorrected. Alcorta v. Texas, 355 U.S. 28; Napue v. Illi- nois, 360 U.S. 264. The standard applied in such cases has been whether the testimony "may have had an effect on the outcome of the trial." Napue v. Illinois, supra, at 272. These cases were very recently followed and applied in Miller v. Pate, [386 U.S. 1 (1967)].