In the 1992 comedy “My Cousin Vinny”, Joe Pesci plays a New York lawyer who travels to Alabama with his fiancé Mona Lisa Vito (played by Marisa Tomei) to defend his cousin against murder charges. Vinny decides to go hunting with the prosecutor ahead of trial for the purpose of “getting a peek” at his files and see the evidence that he has. To his surprise, the prosecutor gladly provides him a complete copy of his file. Vinny returns to the hotel room feeling accomplished that he talked the prosecutor out of his evidence and bragged the same to Ms. Vito. However, she was less impressed and set the record straight about what the law said:
“He has to, by law, you’re entitled. It’s called disclosure, you d**kh**d! He has to show you everything, otherwise it could be a mistrial. He has to give you a list of all his witnesses, you can talk to all his witnesses, he’s not allowed any surprises.”
This isn’t just movie magic, it’s an accurate statement about legal requirements in criminal proceedings. The prosecutor is required to disclose its witnesses and evidence to the defense ahead of trial. Gone are the days of trial by ambush. The parties are generally required to make disclosures to each other on demand so that all cards are on the table and the chances for fair outcomes at trial improve.
According to MCR 6.201(B), “[u]pon request, the prosecuting attorney [in Michigan] must provide each defendant”:
- “(1) any exculpatory information or evidence known to the prosecuting attorney.”
- “(2) any police report and interrogation records concerning the case, except so much of a report as concerns a continuing investigation.”
- “(3) any written or recorded statements, including electronically recorded statements, by a defendant, codefendant, or accomplice pertaining to the case, even if that person is not a prospective witness at trial.”
- “(4) any affidavit, warrant, and return pertaining to a search or seizure in connection with the case.”
- “(5) any plea agreement, grant of immunity, or other agreement for testimony in connection with the case.”
In addition, MCL 767.40a imposes the following additional responsibilities on prosecutors:
- “(1) The prosecuting attorney shall attach to the filed information a list of all witnesses known to the prosecuting attorney who might be called at trial and all res gestae witnesses known to the prosecuting attorney or investigating law enforcement officers.”
- “(2) The prosecuting attorney shall be under a continuing duty to disclose the names of any further res gestae witnesses as they become known.”
- “(3) Not less than 30 days before the trial, the prosecuting attorney shall send to the defendant or his or her attorney a list of the witnesses the prosecuting attorney intends to produce at trial.”
- “(4) The prosecuting attorney may add or delete from the list of witnesses he or she intends to call at trial at any time upon leave of the court and for good cause shown or by stipulation of the parties.”
- “(5) The prosecuting attorney or investigative law enforcement agency shall provide to the defendant, or defense counsel, upon request, reasonable assistance, including investigative assistance, as may be necessary to locate and serve process upon a witness. The request for assistance shall be made in writing by defendant or defense counsel not less than 10 days before the trial of the case or at such other time as the court directs. If the prosecuting attorney objects to a request by the defendant on the grounds that it is unreasonable, the prosecuting attorney shall file a pretrial motion before the court to hold a hearing to determine the reasonableness of the request.”
The prosecutor not only has the duty to disclose evidence that is inculpatory but also to disclose evidence that is also exculpatory. In Brady v. Maryland, 373 U.S. 83, 87; 83 S.Ct. 1194; 10 L.Ed.2d. 215 (1963), the U.S. Supreme Court held that “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.” If the prosecutor fails to disclose this exculpatory evidence to the defense, then he or she has committed a “Brady violation” that can lead to the conviction being thrown out. To assert a successful Brady claim, a defendant must satisfy the following three-prong test laid out by Strickler v Greene, 527 U.S. 263, 281; 119 S.Ct. 1936; 144 L.Ed.2d. 286 (1999):
- First, “[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching.” If there is uncertainly whether evidence is favorable to the defendant or not, the prosecutor should err on the side of disclosure. Cone v Bell, 556 U.S. 449, 470 n.15; 129 S.Ct. 1769; 173 L.Ed.2d. 701 (2009).
- Second, “[t]hat evidence must have been suppressed by the State, either willfully or inadvertently.” An inadvertent nondisclosure has the same impact on the fairness of the proceedings as deliberate concealment. A Brady violation is triggered in cases in which the government possesses information which the defendant does not (e.g. cannot be found in public records), but does not apply to information that is not wholly in the prosecutor’s control.
- Third, the evidence was material and, as a result of the non-disclosure, “[p]rejudice must have ensued.” “To establish materiality, a defendant must show that ‘there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.’” United States v. Bagley, 473 U.S. 667; 105 S.Ct. 3375; 87 L.Ed.2d. 481 (1985).
The Michigan Supreme Court adopted the Brady rule and the three-prong test above in People v Chenault, 495 Mich 142; 845 NW2d 731 (2014). Despite the attempt to make a bright-line rule for Brady disclosures, the issue continues to be litigated in state and federal courts. Evidence that is subject to Brady disclosure includes, but is not limited to, the following:
- Confessions by a co-defendant. Brady, 373 U.S. at 84.
- Agreements made between the prosecutor and a witness not to prosecute the witness in exchange for his or her testimony. Giglio v. United States, 405 U.S. 150; 92 S.Ct. 763; 31 L.Ed.2d 104 (1972).
- Inconsistent statements made by eyewitnesses in a murder case, including statements where the eyewitness incriminated himself. Kyles v. Whitley, 514 U.S. 419; 115 S.Ct. 1555; 131 L.Ed.2d. 490 (1995).
- A note written by an alleged victim in a rape case containing exculpatory information. Youngblood v West Virginia, 547 U.S. 867; 126 S.Ct. 2188; 165 L.Ed.2d 269 (2006).
- An eyewitness telling police on the night of the murder (and several days later) that he could not make a positive identification of the defendant. Smith v. Cain, 132 S.Ct. 627 (2012).
The Brady disclosure does not cover the prosecutor’s work-product, which are materials prepared by attorneys in anticipation of litigation (e.g. memorandums, briefs, communications or other writings prepared by the attorney for use in his or her case). This information is generally privileged. Also, prosecutors are generally not required to disclose the identity of confidential informants. “However, when a defendant demonstrates a possible need for the informant’s testimony, a trial court should order the informant produced and conduct an in-camera hearing to determine if the informant could offer any testimony beneficial to the defense.” People v Underwood, 447 Mich 695, 705–706, 526 NW2d 903 (1994).
Brady violations are serious ethical breaches that can cause innocent people to be convicted. You need a skilled criminal defense lawyer that will hold the prosecutor to their legal burdens and enforce every right you have under the law. If a mandatory disclosure was wrongly withheld, your legal counsel must fight to the fullest extent of the law to undo the damage done and secure either a dismissal or a vacated conviction. The stakes are too high to settle for anything less than the best in your corner.
If you are charged with any crime and need skilled legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.