Despite Requirements to Disclose Favorable Evidence, Sometimes Prosecutors Don’t Play Fair

By: James Davis

Imagine that you are falsely accused of a crime. You will probably want to present an alibi defense, explaining where you were on the night of the crime and will hopefully have witnesses to back up that story. This much is easy because you know where you were and who you were with. But there is a lot of evidence that you will not have access to as the defendant; fingerprints, eye-witness testimony, police reports, lists of other suspects and what they told police, etc.  This is evidence that only the police and prosecutors will have access to. However, because the State should only be interested in convicting those that actually committed crimes, rather than the innocent, there are rules about what evidence the prosecutors must share with a defendant.

Any material evidence that is favorable to the defense, if requested, must be given over to the defense team. This rule is designed to ensure that the prosecution is not allowed to convict the defendant by hiding “exculpatory evidence.” Exculpatory evidence is evidence that tends to show that the defendant is not guilty.

After all, it shouldn’t be about “winning” for the prosecutor, it should be about justice.  If they actually have the wrong person, prosecutors should immediately admit error and drop the charges.  Unfortunately, the prosecutorial mindset and aggressive push for convictions often means that principals of fairness are ignored.

Hidden Evidence
Despite these requirements, prosecutors routinely hide evidence.  In response, the U.S. Supreme Court has issued clear rulings which guarantee criminal defendants access to all important evidence.

The most well-known decision on the topic was the U.S. Supreme Court opinion in Brady v. Maryland.  In Brady, two men were charged with murder.  However, one of the men confessed that he had committed the actual killing by himself.  But the defense attorney for the other defendant, Brady, was never told about the confession.

The U.S. Supreme Court issued a ruling which explained that withholding exculpatory evidence (like another’s confession) violates due process principles guaranteed in the U.S. Constitution.  As a result of this case, when a prosecutor does not turn over exculpatory evidence it is referred to as a “Brady violation.”

This obviously creates a problem for defendants and their lawyers. Sometimes even the best lawyers don’t know what evidence the prosecution has if they don’t disclose it. Sadly, there have been several cases where a defendant sits in prison for twenty plus years before the exculpatory evidence is discovered.

When prosecutors actually withhold exculpatory evidence and it is discovered, then an appeal can be filed.  Depending on the specifics of the withheld information, the prior conviction can be overturned or a new trial ordered.  In other cases the court may seek to modify a specific sentence as a result of the hidden evidence.

Not only that, but prosecutors who are found hiding evidence may face criminal or civil charges.  However, it is often quite difficult to hold these prosecutors and district attorney’s offices fully responsible for their conduct.  This is leading many advocates to call for changes to better protect defendant rights.  A recent Yale Law Journal article specifically addressed the so-call “Myth of Prosecutorial Accountability.”

In Florida, state disciplinary boards may investigate claims of prosecutorial misconduct, but it is rare for serious action to be taken.  Sometimes the only outcome is a private reprimand of the attorney.

This raises a larger point: no one in the court system is going to look out for your rights besides you and your lawyer. If you have been charged with a crime, you need a passionate attorney who will fight for you rights. You can’t guarantee that the prosecutors will play by the rules.  You can, however hire an experienced criminal defense attorney to hold the prosecutor’s feet to the fire and make sure that they dot all their I’s and cross all their T’s.

If you have been charged with a crime, and would like to speak with an experienced criminal defense attorney, contact Attorney James Davis today.

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