Fordham Law Review Volume 53 Issue 3 Article 2 1984 Access to Exculpatory Evidence: Avoiding the Agurs Problems of a Prosecutorial Discretion and Retrospective Review Daniel J. Capra Fordham University School of Law Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Daniel J. Capra, Access to Exculpatory Evidence: Avoiding the Agurs Problems of a Prosecutorial Discretion and Retrospective Review, 53 Fordham L. Rev. 391 (1984). Available at: https://ir.lawnet.fordham.edu/flr/vol53/iss3/2 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. ACCESS TO EXCULPATORY EVIDENCE: AVOIDING THE A GURS PROBLEMS OF PROSECUTORIAL DISCRETION AND RETROSPECTIVE REVIEW DANIEL J. CAPRA* INTRODUCTION N the course of many criminal investigations, the state will uncover information that is favorable to the criminal defendant. The likelihood of defense counsel uncovering the same piece of information is usually slim.1 This unequal access is caused by a number of factors ranging from a differential in resources to the timing of investigations.2 The disparity in access to exculpatory evidence is even greater when the defendant is indigent.3 In Brady v. Maryland,4 the Supreme Court attempted to lessen the disparity in access to exculpatory evidence before and during trial. * Associate Professor of Law, Fordham University School of Law. A.B. 1974, Rockhurst College; J.D. 1977, University of California, Berkeley. 1. See Rice, Criminal Defense Discovery: A Prelude to Justice or an Interlude for Abuse?, 45 Miss. L.J. 887, 909-12 (1974). The defendant is generally at a distinct disad- vantage because: [T]he state's investigative facilities. invariably have been at work gathering evidence long before defense counsel has entered the case. And in the process of investigation, the state, unlike the defendant, has the right, upon a showing of probable cause, to search private property for evidence. It also has the power to compel witnesses to appear before a grand jury to give sworn state- ments which only the state can use in preparation for trial. The state can also gain access to evidence which would not otherwise be available by granting prospective witnesses immunity from prosecution. Id. at 904 (footnotes omitted). See generally Fahringer, Has Anyone Here Seen Brady?: Discovery in Criminal Cases, 9 Crim. L. Bull. 325, 326 (1973) (discussing disparity in defendant's and prosecution's resources); Traynor, Ground Lost and Found in Criminal Discovery, 39 N.Y.U. L. Rev. 228, 249 (1964) (discussing respective advantages in discov- ery of prosecutors and defendants); Note, Toward a ConstitutionalRight to an Adequate Police Investigation: A Step Beyond Brady, 53 N.Y.U. L. Rev. 835, 862-68 (1978) (pro- posing sanctions on state for failure to investigate adequately all criminal cases) [hereinaf- ter cited as Adequate Investigation]. Immunity from prosecution is more likely to be granted to prosecution witnesses than to defense witnesses. See, eg., United States v. Taylor, 728 F.2d 930, 935-36 (7th Cir. 1984); United States v. Thevis, 665 F.2d 616, 638- 41 (5th Cir.), cert. denied, 456 U.S. 1008 (1982). 2. For instance, whereas the police can do fingerprint analysis and/or take blood samples at the scene of the crime, defense counsel is unlikely to have been retained at this point. The same would be true of finding and interviewing witnesses. See supra note 1. 3. See, eg., Matlock v. Rose, 731 F.2d 1236, 1243-44 (6th Cir. 1984) (burden on indigent defendant to show that psychiatric expert required for defense); Mason v. Ari- zona, 504 F.2d 1345, 1352 (9th Cir. 1974) (burden on indigent defendant to show that pre-trial investigative assistance required for defense), cert. denied, 420 U.S. 936 (1975); Caldwell v. State, 443 So. 2d 806, 812 (Miss. 1983) (burden on indigent defendant to show that ballistics expert required for defense), cert. granted, 105 S. Ct. 243 (1984). 4. 373 U.S. 83 (1963). FORDHAM LAW REVIEW [Vol. 53 Brady and his companion, Boblit, were tried separately for felony mur- der and sentenced to death.' Brady's pretrial request to inspect Boblit's extrajudicial statements resulted in the prosecutor turning over some of the material but withholding a statement in which Boblit confessed to committing the homicide.' Brady testified and admitted his participation in the crime but contended that it was Boblit who actually committed the killing.7 In his summation, Brady's attorney conceded that Brady was guilty of murder and asked the jury not to impose the death penalty.' The jury, which had not heard Boblit's exculpatory statement, sentenced Brady to death.9 When defense counsel later discovered the existence of Boblit's statement, he moved for a new trial.10 The Supreme Court, obviously concerned that defense counsel was de- nied access to evidence in the prosecutor's control, focused on the impact of the nondisclosure on the defendant's ability to present his defense."' Accordingly, the Court held that the prosecutor's motivation in sup- pressing favorable evidence was irrelevant, given the overriding issue of adequate access to evidence and the Constitution's guarantee of a fair trial. 2 The Court stated that "the suppression by the prosecution of evi- dence 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." 13 Brady was a major step forward in equalizing access to exculpatory evidence. Before Brady, the Supreme Court had imposed an almost ab- solute duty on the prosecutor to correct perjurious testimony. 14 In Brady, however, the Court recognized that disclosure of evidence show- ing perjury of government witnesses is not qualitatively different from 5. Id. at 84. 6. Id. 7. Id. 8. Id. 9. Id. 10. Id. Brady moved for a new trial as to both guilt and punishment. The Maryland Court of Appeals had granted a new trial as to punishment, see Brady v. State, 226 Md. 422, 430-31, 174 A.2d 167, 171-72 (1961), affd, 373 U.S. 83 (1963), and the only issue in the Supreme Court was whether a new trial as to guilt should have been granted as well, see Brady v. Maryland, 373 U.S. 83, 85 (1963). 11. See Brady v. Maryland, 373 U.S. at 86-89. 12. Id. at 87. See generally Clinton, The Right to Present a Defense: An Emergent ConstitutionalGuarantee in Criminal Trials, 9 Ind. L. Rev. 713, 841, 847-48 (1976) (dis- cussing constitutional aspects of defendant's lack of access to relevant evidence); Westen, The Compulsory Process Clause, 73 Mich. L. Rev. 71, 121-23 (1974) (Brady is part of guarantee of broad sixth amendment right to present effective defense). 13. Brady v. Maryland, 373 U.S. at 87. The Court's rejection of a prosecutorial mis- conduct analysis is made manifest by the fact that the prosecutor in Brady had arguably acted in bad faith. The prosecutor had disclosed other statements of Boblit, but sup- pressed a statement favorable to Brady: Boblit's admission of the actual homicide. See supra note 6 and accompanying text. 14. See, e.g., Napue v. Illinois, 360 U.S. 264, 269 (1959); Pyle v. Kansas, 317 U.S. 213, 216 (1942); Mooney v. Holohan, 294 U.S. 103, 106-07 (1935). 1984] ACCESS TO EXCULPA TORY EVIDENCE disclosure of exculpatory evidence in general.' 5 Disclosure is required in both instances to ensure the defendant's access to favorable evidence.' 6 Furthermore, in neither situation is the willfulness of the prosecutor at issue: The question is not prosecutorial misconduct, but rather the de- fendant's constitutional right of access to favorable evidence. The irrele- vance of prosecutorial misconduct, even in perjury cases, was made clear in Giglio v. United States.Y" In Giglio, the prosecutor at trial did not know that a witness lied in testifying that he had not received a promise of leniency."8 The Supreme Court unanimously rejected the claim that the prosecutor's good faith prevented reversal of the conviction.' 9 The Court in Brady did not, however, constitutionalize criminal dis- covery, nor did it intend to do so. For instance, Brady does not stand for the proposition that the prosecutor must open his file to the defendant.2" Of course, complete access to the prosecutor's file would help defense counsel significantly.21 Counsel would be able to plan a strategy that would enable it to dodge the prosecution's strong points and attack its weak points. More cynically, however, the defendant would be able to pressure witnesses before trial, or tailor his testimony in response to the prosecution's case.' A further danger is that the defendant's unimpeded access to the prosecutor's file may jeopardize continuing investigations.' The crucial distinction between Brady and an open file rule is that Brady requires disclosure only of evidence favorable to the defendant.24 15. See Brady v. Maryland, 373 U.S. at 86-87. 16. See Babcock, FairPlay: Evidence Favorable to an Accused and Effective Assist- ance of Counsel, 34 Stan. L. Rev. 1133, 1151 n.70 (1982); Westen, supra note 12, at 122; Adequate Investigation, supra note 1, at 838-40. 17. 405 U.S. 150 (1972). 18. See id. at 151-53 (another prosecutor, at an earlier stage of the case, had promised the witness immunity).