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Handling Exculpatory Evidence: What Is Demanded of the Ethical Prosecutor and of Competent Defense Counsel?

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HANDLING EXCULPATORY EVIDENCE: WHAT IS DEMANDED OF THE ETHICAL PROSECUTOR AND OF COMPETENT DEFENSE COUNSEL? Sponsor: Criminal Law Section CLE Credit: 1.0 ethics Wednesday, May 11, 2016 10:40 a.m. - 11:40 a.m. Cascade Ballroom A Kentucky International Convention Center Louisville, Kentucky A NOTE CONCERNING THE PROGRAM MATERIALS The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority. Printed by: Evolution Creative Solutions 7107 Shona Drive Cincinnati, Ohio 45237 Kentucky Bar Association TABLE OF CONTENTS The Presenter .................................................................................................................. i Handling Exculpatory Evidence: What is Demanded of the Ethical Prosecutor and of Competent Defense Counsel .................................................. 1 Letter to Sandra Elliott Re: State v. Terry Lynn Nichols ................................................ 13 Terry Lynn Nichols' Motion to Dismiss Based on the State's Failure to Comply with Brady v. Maryland .......................................................... 17 THE PRESENTER Professor Rodney Uphoff University of Missouri School of Law 213 Hulston Hall Columbia, Missouri 65203 (573) 882-3035 [email protected] PROFESSOR RODNEY UPHOFF is the Emeritus Elwood L. Thomas Missouri Endowed Professor of Law at the University of Missouri. He served as the Associate Dean of the University of Missouri from 2002 to 2005. In 2006 he was appointed by the University of Missouri System President Elson Floyd as the Director of the University of Missouri South African Educational Program. This program launched in 1986 features the first partnership between an American university and a non-white South African university. The partnership between the University of the Western Cape and the University of Missouri has been recognized as a model partnership between a school in a developed country and one in a developing country. Professor Uphoff has helped organize many study abroad trips to South Africa and has been on many safaris in South Africa, Botswana, Namibia, Kenya and Tanzania. Professor Uphoff served on the NCAA Committee on Infractions, the committee that decides whether schools and coaches have violated NCCAA legislation and the penalties they should serve for committing such violations. He frequently speaks internationally on the American criminal justice system and criminal trial advocacy. He participates yearly in Harvard University's Trial Advocacy Workshop. Professor Uphoff also serves on the Gideon & Professionalism Committee for the American Bar Association's Criminal Justice Section and as a member of the Missouri Committee on Procedure in Criminal Cases. Professor Uphoff has represented a number of high profile criminal defendants as a public defender and was appointed to represent Terry Nichols in Oklahoma state court for the Oklahoma City Bombing case. Although Nichols was convicted of 160 murders in that case, he did not receive the death penalty. Andrew Cohen, a legal analyst for CBS News, described that result as "one of the most stunning developments in modern legal history." Professor Uphoff served as a legal specialist in Romania as part of the American Bar Association's Central and East European Law Initiative (CEELI) Program. He has also served in many advisory roles for state justice systems and the ABA, including as a member of the Oklahoma Indigent defense system overseeing the operation of the Oklahoma public defender system, as the chief staff attorney of the Milwaukee office of the state public defender, as a member of the Missouri Assessment of the Death Penalty, and as Vice chair of the American Bar Association Defense Services Committee. Professor Uphoff received his B.A. from the University of Wisconsin and his J.D. from the University of Wisconsin Law School. i ii HANDLING EXCULPATORY EVIDENCE: WHAT IS DEMANDED OF THE ETHICAL PROSECUTOR AND OF COMPETENT DEFENSE COUNSEL Professor Rodney Uphoff ___________________________________ Overview ___________________________________ ___________________________________ Special Kentucky ethics rule for prosecutors ___________________________________ Prosecutors have distinct legal responsibilities to ___________________________________ disclose information under . Kentucky Rules of Criminal Procedure ___________________________________ . United States and Kentucky case law ___________________________________ . Kentucky Rules of Professional Conduct ___________________________________ Effective practice: seek favorable evidence regardless of materiality ___________________________________ ___________________________________ ___________________________________ KY Rules of Criminal Procedure material; relates to subject matter of testimony ___________________________________ VII. Production of Evidence ___________________________________ ___________________________________ RCr 7.02 Subpoenas RCr 7.06 Indispensable Witnesses ___________________________________ RCr 7.10 Grounds for Taking Depositions ___________________________________ RCr 7.12 Taking Depositions RCr 7.14 Notice of Taking Depositions ___________________________________ RCr 7.16 Defendant's Counsel ___________________________________ RCr 7.18 Manner of Taking Depositions RCr 7.20 Use of Depositions; Objections ___________________________________ ___________________________________ 1 ___________________________________ KY Rules of Criminal Procedure, cont. material; relates to subject matter of testimony ___________________________________ VII. Production of Evidence, cont. ___________________________________ ___________________________________ RCr 7.22 Transcript of Previous Testimony RCr 7.24 Discovery and Inspection ("showing that ___________________________________ the items sought may be material to the preparation of the defense and that the request is ___________________________________ reasonable.") RCr 7.26 Demands for Production of Statement and ___________________________________ Reports ("statements of any witness in the form of ___________________________________ a document or recording in its possession which relates to the subject matter of the witness's ___________________________________ testimony ….") ___________________________________ ___________________________________ Case Law: Favorable and Material ___________________________________ Brady v. Maryland, 373 U.S. 83, 87 (1963) "the ___________________________________ suppression 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." ___________________________________ Giglio v. U.S., 405 U.S. 150 (1972) due process violated when prosecution promise not to prosecute ___________________________________ witness was not disclosed and since there was a reasonable likelihood to have affected the judgment ___________________________________ of the jury. U.S. v. Agurs, 427 U.S. 97 (1976) defendant’s ___________________________________ failure to request favorable evidence does not free the prosecutor from all Brady obligations ___________________________________ ___________________________________ ___________________________________ Case Law: Favorable and Material ___________________________________ U.S. v. Bagley, 473 U.S. 667 (1985) disavowed any difference between exculpatory evidence and ___________________________________ impeachment evidence holding that, regardless of request, the failure to disclose favorable evidence that is ___________________________________ material is constitutional error ___________________________________ Kyles v. Whitley, 514 U.S. 419, 432 (1995) prosecutor has duty to learn of any favorable evidence known to ___________________________________ others acting on behalf of the government and good faith of prosecutor does not excuse failure to disclose favorable ___________________________________ evidence. So prosecutor has duty to set up procedures and regulations to ensure all relevant information is ___________________________________ communicated to the prosecutor to carry out his Brady responsibilities. ___________________________________ ___________________________________ 2 ___________________________________ ___________________________________ BUT… ___________________________________ Prosecutor’s responsibility ___________________________________ to disclose is broader than ___________________________________ case law and the Kentucky ___________________________________ Rules of Criminal Procedure ___________________________________ – See Kyles ___________________________________ ___________________________________
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