California Needs to Pass Law on Exculpatory Evidence

By Barry Scheck and Laurie Levenson

More than half a century ago, the Supreme Court established a rule that requires prosecutors to turn over to defense attorneys any evidence pointing to a defendant’s innocence. It’s known as the Brady rule, and violations of it occur far too often and can lead to devastating consequences. In a dissenting opinion last year, Chief Judge Alex Kozinski of the U.S. 9th Circuit Court of Appeals declared that “there is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” There is no shortage of examples.

Under the proposed ethical standard, prosecutors simply turn over any potentially helpful evidence without judging whether it could help lead to an acquittal. –

Take the case of Mark Sodersten. In 2007, a state appellate court reversed his 1986 murder conviction after finding that the prosecution failed to give the defense audiotapes of interviews with a key witness that contained evidence pointing to Sodersten’s innocence. Tragically, the ruling came too late for Sodersten, who spent 22 years behind bars and died in prison months before he was awarded a new trial.

Or consider Kash Delano Register, who served 34 years behind bars for a 1979 murder in Los Angeles that he always maintained he didn’t commit. He was released last year after a judge found that prosecutors and police “repeatedly concealed relevant evidence” that pointed to Register’s innocence.

And then there’s Obie Anthony, who was freed in 2011 after serving 17 years in prison for a murder in South Los Angeles after a judge ruled that the prosecutor failed to disclose exculpatory evidence. Anthony was released only after lawyers from Northern California and Loyola Law School innocence projects demonstrated that the key eyewitness for the prosecution hadn’t actually observed the crime — and that the prosecution had not disclosed a deal to give the witness favorable treatment on unrelated charges in exchange for his testimony.

There is an easy step California should take to curb this type of prosecutorial misconduct — the adoption of an ethical rule. One reason even well-intentioned prosecutors violate Brady is the cognitive difficulty of predicting before a trial has even occurred whether undisclosed information might be considered “material” — or sufficiently important to overturn a conviction — by an appellate court. Instead, prosecutors should follow a simple prophylactic rule that errs on the side of caution. Under the proposed ethical standard, prosecutors simply turn over any potentially helpful evidence without judging whether it could help lead to an acquittal.

The American Bar Assn., which publishes “Model Rules of Professional Conduct” to serve as ethical standards for attorneys nationwide, enacted Rule 3.8. The rule’s objective is to eliminate confusion. Part of the rule, which defines the evidence that must be disclosed, was designed to be broader and independent of Brady obligations, requiring prosecutors to disclose before trial all evidence that “tends to negate the guilt of the accused or mitigates the offense.” Again, this differs from Brady because it does not require prosecutors to evaluate how much the evidence tends to negate the defendant’s guilt. That is for the defense to argue and for the jury to decide.

The rule provides an exception so that prosecutors who have real concerns about witness safety, subornation of perjury or other significant considerations can seek and obtain protective orders from a court to delay disclosure. Equally important, other parts of the rule require prosecutors to turn over any evidence pointing to innocence that they become aware of after a conviction; they must take proactive steps to vacate a conviction if there is clear evidence of the defendant’s innocence.

 

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California is the only state in the nation that has failed to adopt some version of this rule. Last week, we testified about the need for this rule at the State Bar of California’s hearing on attorney competency and disciplinary standards. The bar has spent nearly a decade redrafting a new set of rules of professional conduct. Complaints about the bar’s approach to redrafting the new rules recently led California’s Supreme Court to announce that it would restart the process with a new rules commission. The criminal-justice system cannot wait another decade to adopt a rule that will ensure fairer criminal trials. While the new commission considers how to revamp all the rules, the bar and court should adopt the American Bar Assn. model rule for disclosure of exculpatory evidence.

The obligations imposed by the rule are not about making the average prosecutor’s job more difficult or punishing for innocent mistakes. In fact, these men and women deserve credit and praise for their public service and dedication to justice. Rule 3.8 is designed to make the system fairer and better by ensuring that criminal defendants have access to all relevant evidence that could aid in their defense. For the sake of the many men and women who have needlessly lost years of their lives because they weren’t given a fair chance at trial, we urge the California Supreme Court to take this important step and bring California prosecutors in line with the rest of the nation. Waiting will just lead to more injustice.

Barry Scheck is co-director of the Innocence Project at Benjamin Cardozo School of Law in New York City. Laurie Levenson is a professor of law at Loyola Law School and founding director of Loyola’s Project for the Innocent.

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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9 Comments

  1. Tia Will

    Under the proposed ethical standard, prosecutors simply turn over any potentially helpful evidence without judging whether it could help lead to an acquittal.”

    Maybe someone can explain to me why we would not take the burden of this decision out of the hands of the prosecutor entirely by making it mandatory to turn over all evidence to the defense ? If everything were disclosed to both sides, the prosecutors could never be faulted for having failed to provide exculpatory evidence and the defense we have full access to everything known to the prosecution about the case.

    1. Davis Progressive

      they are required to turn over all evidence that is possibly useful to the defense – exculpatory evidence.  two problems.  one, you often don’t know what you don’t know.  two, the prosecutor’s who fail to turn over evidence are rarely discovered and even more rarely disciplined.

      1. Tia Will

        DP

        I understand what the rule is now as you have explained it. It seems to me that this is a very strong argument for mandating that they turn over all evidence whether it seems to them that it might be exculpatory or not. I am being clear with my question about why they do not have to share all evidence ?

        1. Davis Progressive

          they don’t have to share all evidence.  it’s a better practice however to share it.  i think if you fix the enforcement issue, the question of what evidence to turn over largely goes away.

  2. hpierce

    Am I to understand that if ‘the State’ has to share all information (“evidence” only is information that is actually useful in determining guilt or innocence), that you two would have a defendant’s advocate have to share all information with ‘the State’?

    Don’t think the latter will be a “happening thing”, ever.  Not sure it should be, if the defendant is being given their right against “self-incrimination”.  Might be OK if the system was truly about “truth”, but it is, in reality an adversarial system, which “hopes” to discern truth, but where the burden of “proof” is on ‘the State’… not a burden of the defense.

    1. Davis Progressive

      because of the presumption of innocence and the requirement that the state has to prove the charges, the defense is not required to turnover evidence unless its to be used in the trial.

      Defendants must disclose to prosecutors:

      the names and addresses of all people other than themselves whom they plan to call as witnesses
      any relevant statements by any of these witnesses
      any experts’ reports, and
      any “real” evidence (tangible objects) that the defense intends to offer into evidence. (California Penal Code § 1054.3.)

      1. hpierce

        Thanks, makes sense.  Seemed like Tia and Cecilia were advocating equal “sharing” of any/all information/’evidence’ with the opposing Counsel.  That did not seem to jive with where I thought I understood them to come from.  Maybe I read too much into the words they used in those first two posts. I admit I more than occaisionally read things into posts by others (as they sometimes do on mine).

  3. Anon

    “There is an easy step California should take to curb this type of prosecutorial misconduct — the adoption of an ethical rule. One reason even well-intentioned prosecutors violate Brady is the cognitive difficulty of predicting before a trial has even occurred whether undisclosed information might be considered “material” — or sufficiently important to overturn a conviction — by an appellate court. Instead, prosecutors should follow a simple prophylactic rule that errs on the side of caution. Under the proposed ethical standard, prosecutors simply turn over any potentially helpful evidence without judging whether it could help lead to an acquittal.”

    One reason prosecutors violate Brady is because they want to solve criminal cases, and win the case in court.  “Winning” convictions furthers their careers.  It takes strong character on the part of a prosecutor to turn over exculpatory evidence to the defense (because I would assume it is hard to catch a prosecutor violating Brady – someone correct me if I am wrong), especially if the prosecutor believes in his/her heart the defendant is guilty.

    To Tia: If the prosecution were to have to turn over all evidence to the defense, it would also include work-product, such as trial strategy.  A good defense lawyer could make mince-meat out of the prosecutor’s case if the prosecutor’s trial strategy were known, even if the case were solid.  I understand where you are coming from; and I have problems with the conflict of interest involved in the prosecutor’s obligation to turn over Brady material versus the need to “win” in court.  But I don’t know 0f any fairer system.  It certainly is an imperfect system, but thus far about the fairest from what I have observed.

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