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By Gregory M. Varner

Most prosecutors likely agree with Judge Learned Hand that “a criminal defendant already ha[s] too many advantages over the state. . .”[1] While the American criminal system does provide those accused of crimes with certain cherished privileges, in one important area, prosecutors have an inordinate advantage: the production of discovery to the accused. And prosecutors jealously guard the contours of that privileged position, often seeking expansion of it.[2]

That Learned Hand quote, perhaps aptly, is found in the official commentary to the Alabama Rules of Criminal Procedure on discovery. The discovery rules in Alabama generally restrict the ability of a criminal defendant to learn about the government’s case against them. Unlike the civil defendant, the criminal defendant is somewhat at the mercy of the prudence, good faith, and diligence of the opposing counsel.

A comparison of the two systems reveals the extent of this disparity. Even in a district civil case, the rules provide the civil defendant with tools such as interrogatories, requests for production, and requests for admission. A civil defendant can demand the plaintiff’s witness list and, in most civil cases, take depositions of any and all parties and witnesses.

Not so for the person accused of a crime, even a serious one like murder[3] or rape. Alabama is one of 13 states that provides criminal defendants with the least discovery in the nation.[4] The criminal defendant is only entitled to items specifically delineated in Rule 16 of the ARCP: a narrow set of statements by the defendant or co-defendants, a narrow set of physical things and documents, and a narrow set of results from tests and experts.[5] As slim as that list is, Rules 16.1(c)(1) and 16.1(e) further limit the prosecutor’s obligation to produce by excluding a broad range of materials: amongst other things, witness lists and witness statements. No comparative tools of civil discovery exist: no interrogatories and certainly no depositions in the ordinary case.[6] If a prosecutor can ambush the defense at trial with a surprise witness or a defendant’s inculpatory statement to a private citizen, the current rules fully allow that tactic.[7]

Nevertheless, those same Rules include this provision in Rule 16.1(f):

Nothing in this Rule 16.1 shall be construed to limit the discovery of exculpatory material or other material to which a defendant is entitled under constitutional provisions or other provisions of law.

One such constitutional provision is the Due Process Clause of the United States Constitution. It provides the criminal defendant with a wedge of powerful authority to pry from prosecutors something more about their case.[8] The seminal case interpreting the clause is Brady v. Maryland, 373 U.S. 83 (1963). In Brady, because prosecutors withheld evidence that an accomplice confessed to the actual killing, the Supreme Court held that the defendant did not receive a fair trial. “Under Brady, the State violates a defendant’s right to due process if it withholds evidence that is favorable to the defense and material to the defendant’s guilt or punishment.”[9] Such evidence is known colloquially as “Brady material.”

But there is great ignorance of (1) what actually constitutes Brady material and (2) what duties of prosecutors arise from Brady. A study by the Innocence Project of Santa Clara University School of Law found Brady violations to be “among the most pervasive forms of prosecutorial misconduct.”[10] Research also reveals that Brady violations are a principal cause of wrongful convictions of innocent persons.[11]

Ignorance of the Definition of Brady Material

Many jurists, prosecutors, and even criminal defense attorneys underappreciate that Brady material includes more than exonerating evidence. Rather, Brady holds that the prosecution must disclose any information or material that is: (1) material; (2) relevant to guilt or punishment; (3) favorable to the accused; and (4) within the actual or constructive knowledge or possession of anyone acting on behalf of the State.[12]

Several implications from this definition are often disregarded by prosecutors.

First, Brady material extends to information outside the prosecutor’s case file.[13] If “anyone acting on behalf of the State” has “information or material” that is “favorable and material,” the Constitution requires timely production to the defense. So even if the information has not found its way into the prosecutor’s actual possession but is only in an investigator’s notebook (or even just in their mind), Brady requires disclosure.[14]

Second, Brady obligations apply to favorable information that the defense could use either during the “guilt or punishment” phase of a case.[15] If law enforcement learns of information during an investigation that may not affect guilt of the defendant but could impact the defendant’s sentencing, that information should be produced. For instance, the fact that a criminal defendant was impaired at the time of the offense might not impact his criminal guilt, but certainly could affect his culpability for sentencing arguments.[16]

Third, when viewed retrospectively, “material Information” is anything that could “in any reasonable likelihood . . .affect the judgment of the jury” or judge at any phase of the criminal process.[17] Evidentiary “trustworthiness or admissibility” is irrelevant.[18] And Brady material encompasses any evidence that is “‘favorable to the defense’ even if the jury might not afford it significant weight.”[19] The prosecutor should not be in the business of weighing the importance of the favorable information or making evidentiary decisions on its admissibility.[20]

Fourth, any information relevant to the credibility of a prosecutor’s witness falls under Brady.[21] The Supreme Court expressly included impeachment material in Giglio v. United States. Therefore, any inconsistent statements made by a witness during the course of the investigation should be made known to the defense. Similarly, changes in a witness’s statements (even if not reduced to writing) made pretrial when compared to the witness’s testimony at trial are under the Brady rule.[22] This Brady/Giglio principle further extends to any information of a witness’s prior dishonesty or bias or physical/mental impairment, or anything else that can be used for impeachment.[23]

Fifth, Brady mandates an ongoing obligation that begins at the initiation of the criminal proceedings. Accordingly, Brady applies to every phase of the criminal process: from bond hearings to preliminary hearings, from pretrial suppression hearings to sentencing. Due Process demands disclosure of any and all Brady-type information that could be used by the defense at that particular point of the process. “Timing is critical to proper Brady disclosure.”[24] From early in the process: Prosecutors might need to divulge information that could provide arguments for a reduction in bond. Or until late in the proceedings: New Brady obligations may arise during trial. For instance, the 11^th Circuit Court of Appeals found that a prosecutor had violated Brady by failing to correct representations he made to a jury that were damaging to the defendant’s duress argument, despite learning before the finish of the trial that they were false.[25]

Sixth, prosecutors must produce any information that tends to cast doubt on the admissibility of their evidence. Accordingly, information that might assist (or even just make the defense aware of issues regarding) the pretrial suppression of evidence must be disclosed.[26]

Seventh, any information that might suggest the defendant may be only guilty of a lesser included crime is also required to be produced.[27] Or evidence (even if from an anonymous phone call)[28] that might support an affirmative defense like insanity[29] or self-defense[30] or provide the identity of any alternative suspects[31] falls under the Brady doctrine.

Finally, Brady even applies to ambiguously favorable information. For instance, Brady extends to evidence of mistaken, negligent, or even incomplete police work. The Supreme Court opined that such evidence can raise “opportunities to attack not only the probative value of crucial physical evidence and the circumstances in which it was found, but the thoroughness and even the good faith of the investigation, as well. . . Indications of conscientious police work will enhance probative force [of the prosecution’s evidence] and slovenly work will diminish it.”[32]

Ignorance of Duties of Prosecutor Concerning Brady Material

More significant though is the ignorance of the actual duties of prosecutors resulting from Brady. Few prosecutors see themselves having any duty to help the defense; they see themselves as zealous advocates for their case only, seeking justice against the criminal. However, the Supreme Court of the United States disagrees.

“By requiring the prosecutor to assist the defense in making its case, the Brady rule represents a limited departure from a pure adversary model.”[33]

Most prosecutors probably chaff at this doctrine of constitutional law and the implications flowing from it. The Court sees, perhaps naively yet idealistically, that the prosecutor’s role is beyond that of an adversary: they are “the representative not of an ordinary party to a controversy, but of a sovereignty . . . whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done.”[34]

How does the prosecutor assist the defense in making its case? It begins with a non-delegable duty to investigate and seek out material and information that is favorable to the defense’s case in all its various aspects.

In Kyles v Whitley, 514 US 419, 437 (1995), the Supreme Court held that “[a] prosecutor’s Brady disclosure obligation is not limited to information of which a prosecutor has actual knowledge. Rather, a prosecutor has a non-delegable duty to learn of Brady information in the case.”[35] The prosecutor has “a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.”[36]

The prosecutor, diligent for the dictates of Brady, will ferret out potential Brady material from everyone involved in the investigation. The prosecutor, faithful to Due Process, does not rely upon what has made it into their case file. In fact, that prosecutor will not even be content to know what has made it into the investigator’s case file. If there is favorable information, even if only in the mind of anyone on the prosecutorial team, they will seek it out.[37]

The prudent prosecutor will not expect law enforcement officers or investigators to know or understand what Brady material actually is. The prosecutor cannot delegate that screening responsibility to anyone; it is “non-delegable.”  And the prosecutor will not merely limit his or her investigation to the lead investigator or arresting officer. The prosecutor will seek potential Brady material from everyone in the prosecutor’s “entire office, as well as law enforcement personnel and other arms of the state involved in investigative aspects of a particular criminal venture.”[38] This might include DHR or federal agents or drug task force officers or even jailors.

The current system countenances an implicit conflict of interest for prosecutors. As Justice Blackmon, in dissent, identified in Bagley:

At best, this standard places on the prosecutor a responsibility to speculate, at times without foundation, since the prosecutor will not normally know what strategy the defense will pursue or what evidence the defense will find useful. At worst, the standard invites a prosecutor, whose interests are conflicting, to gamble, to play the odds, and to take a chance that evidence will later turn out not to have been potentially dispositive.

While this assessment probably describes the reality, current doctrine still relies upon the prudence of the prosecutor:

When it is uncertain whether information is favorable or useful to a defendant, “the prudent prosecutor will err on the side of transparency, resolving doubtful questions in favor of disclosure.”[39]

There is no good faith exception for prosecutors either. If the suppression of evidence by prosecutors results in constitutional error, “it is because of the character of the evidence, not the character of the prosecutor.”[40] To the extent a prosecutor fails to adequately and diligently seek out Brady material in each and every case, justice is not done. “[T]he aim of due process ‘is not punishment of society for the misdeeds of the prosecutor but avoidance of an unfair trial to the accused.’”[41]

The obligations imposed on the prosecutors by the Constitution are, indeed, substantial. And these duties apply the same for every single misdemeanor case as they do for a capital murder case. By way of exemplar for minimal standards, the U.S. Department of Justice maintains a memorandum for its prosecutors entitled Guidance for Prosecutors Regarding Criminal Discovery in meeting the demands of Brady and Whitley including sections on “Where to Look” and “What to Review.”[42]  How powerful would it be to ask in open court or in a motion filed in the case whether the prosecution has complied with what the Department of Justice thinks of as its minimal standards?

Defense Lawyer’s Responses to the Broken System

Because of this system’s reliance on the good-will of prosecutors, despite their conflicting interests, the criminal defense attorney must zealously guard the right of their clients to a fair process. This requires continual diligence throughout the course of the case and use of the tools that the rules and Constitution provides.

First, make specific, as well as, broad Brady requests. Do not rely upon a basic motion for discovery. Tailor your Brady requests to the specific facts of the case. But also make broader requests for common locations of Brady material. Do this even though a prosecutor has Brady obligations when faced with “merely a general request” or when “there has been no [defense] request at all.”[43]

Second, ask early and continuously throughout the process. Under Pennsylvania v. Ritchie, the obligations of the prosecutors to pursue Brady material and their duty to disclose are ongoing.[44]

Third, ask the court to compel a formal response from the prosecutor. “When the prosecutor receives a specific and relevant [Brady] request, the failure to make any response is seldom, if ever, excusable.”[45]

Fourth, don’t let the prosecutors hide Brady disclosures. In the words of one federal court, “[t]he Government cannot meet its Brady obligations by providing . . . 600,000 documents and

then claiming that [the defendant] should have been able to find the exculpatory information . . . .”)

Fifth, seek a special Brady order from the state trial court under its powers of Rule 16.5[46] and modeled after the federal rules. Those federal rules were amended in 2020 by legislation[47] to require federal trial courts to establish specific orders, at the outset of the case, specifying Brady/Whitley obligations within their courtrooms. Congress developed the amendment following the unjust prosecution of Senator Ted Stevens.  After the ultimate dismissal of the charges, a specially-appointed prosecutor, targeting the trial prosecutors ultimately:

did not recommend bringing criminal contempt charges against any of the prosecutors due to what he concluded was a deficiency in the judge’s orders. One might say that the prosecutors got lucky. Significantly, [the special prosecutor] found that the investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of exculpatory evidence which would have independently corroborated Senator Stevens’ defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.[48]

Include in the request that the court order prosecutors to produce Brady material within 14 days of the request, consistent to basic discovery obligations in Rule 16.

Finally seek an order from the trial court requiring the prosecutor to certify his or her compliance with Brady and Whitley at each phase.

Conclusion

These substantial constitutional burdens exist because, in criminal law, actual life, liberty, and property are at stake for those targeted by the incredible power and apparatus of the government. In Brady, the Supreme Court reminded prosecutors that:

An inscription on the walls of the Department of Justice states the proposition candidly . . . : ‘The United States wins its point whenever justice is done its citizens in the courts.’

The same is true for the State of Alabama.

Endnotes

[1] United States v.Garsson, 291 F. 646, 649 (S.D.N.Y. 1923), cited in the commentary to Ala. R. Crim. P. 16.1

[2] E.g. Ex parte State, 259 So. 3d 683 (Ala. Crim. App. 2017) (prosecutors sought to disable district court judges from ordering basic discovery to a criminal defendant.)

[3] In capital murder cases, per Ex Parte Monk, 557 So. 2d 832 (Ala. 1989), judges can order “open file” discovery from prosecutors.

[4] Legal Aid Society of New York City, Criminal Discovery Reform in New York: A Proposal to Repeal CPL Article 240

and to Enact a New CPL Article 245 (2009);Wayne R. LaFave et al., Criminal Procedure §20.2(b), n.31 (3d ed.

updated Dec. 2012).

[5] Rule 16.1 of the Ala. R. Crim. P.

[6] Rule 16.6 of Ala. R. Crim. P. does authorize depositions “whenever, due to the exceptional circumstances of the case, , it is in the interest of justice that the testimony of a prospective witness be taken and preserved for use at trial . . .” However, Rule 16.6 depositions are extremely rare and are not a tool for discovery.

[7] Pilley v. State, 930 So. 2d 550 (Ala. Crim. App. 2005)

[8] McMillian v. Johnson, 88 F.3d 1554 (11th Cir. 1996); U. S. Const. amend XIV

[9] Smith v. Cain, 556 U.S. 73 (2012); Brady v. Maryland, 373 U.S. 83 (1963)

[10] Ridolfi, Kathleen M.; Possley, Maurice; and Northern California Innocence Project, Preventable Error: A Report on Prosecutorial Misconduct in California 1997–2009 (2010). Northern California Innocence Project Publications. Book 2.

[11] Bennett L. Gershman, Bad Faith Exception to Prosecutorial Immunity for Brady Violations, Amicus, Aug. 10, 2010,

[12] Wilson v. State, 874 So. 2d 1155 (Ala. Crim. App. 2003)

[13] Ibid.

[14] Duncan v. State, 575 So. 2d 1198 (Ala. Crim. App. 1990)

[15] Spivey v. Head, 207 F.3d 1263 (11th Cir. 2000); United States v. Newton, 44 F.3d 913 (11th Cir. 1994)

[16] Cone v. Bell, 129 S. Ct. 1769, 1783-86 (2009); Cone v. Bell (No. 07-1114) 492 F.3d 743, vacated and remanded

[17] Giglio v. United States, 405 U.S. 150, 154 (1972)

[18] US v Triumph Capital Group, Inc., 544 F3d 149, 162; Ex Parte Brown, 548 So.2d 993, 994 (Ala. 1989)

[19] Lambert v. Beard, 537 Fed. Appx. 78, 86 (3d Cir. 2013).

[20] Ex Parte Dickerson, 517 So. 2d 628 (Ala. 1987)

[21] West Virginia v. Youngblood, 547 U.S. 867 (2006)

[22] Brown v. State, 545 So. 2d 106 (Ala. 1988)

[23] Banks v. Dretke, 540 U.S. 668, 702-03 (2004); Wilson v Beard, 589 F3d 651, 660–62 (CA 3, 2009); Bennett v. United States, 797 A.2d 1251, 1255-58 (D.C. 2002)

[24] See United States v. Peters, 732 F.2d 1004, 1008-09 (1st Cir. 1984)

[25] US v Alzate, 47 F3d 1103, 1110 (11^th Cir. 1995)

[26] Smith v. Black, 904 F.2d 950, 965-66 (5th Cir. 1990); Nuckols v. Gibson, 233 F.3d 1261, 1266-67 (10th Cir. 2000); United States v. Gamez-Orduno, 235 F.3d 453, 461 (9th Cir.2000)

[27] Cone, 129 S.Ct. at 1783-86

[28] Patton vs. State, 530 So.2d 886 (1988)

[29] US v Spagnoulo, 960 F2d 990, 993–95 (11^th Cir. 1992)

[30] Savage v. State, 600 So.2d 405 (1992)

[31] Bradley v. State, 494 So.2d 772 (1985); Patton vs. State, 530 So.2d 886 (1988)

[32] Kyles v. Whitley, 514 U.S. 419 (1995)

[33] United States v. Bagley, 473 U.S. 667 (1985)

[34] Id. at 676 n.6 (1985) quoting Berger v. United States, 295 U.S. 78, 88 (1935)

[35] Kyles at 437.

[36] Id. at 437

[37] United States v. Rodriguez, 496 F.3d 221, 226 (2d Cir. 2007)

[38] Smith v. Secretary of N.M. Dep’t of Corr., 50 F.3d 801, 824 (10th Cir. 1995); States v. Wood, 57 F.3d 733, 737 (9th Cir. 1995)

[39] Cone 129 S. Ct at 470 n.15

[40] United States v. Agurs, 427 U.S. 97, 103 (1976)

[41] Smith v. Phillips, 455 U.S. 209, 219 (1982).

[42] Memorandum to Department Prosecutors. https://www.justice.gov/archives/jm/criminal-resource-manual-165-guidance-prosecutors-regarding-criminal-discovery

[43] Agurs 427 U.S. at 106-07

[44] Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987); Ala. R. Crim. P. Rule 16.3

[45] Agurs, 427 U.S. at 106; Ex Parte Womack, 541 So. 2d 47 (Ala. 1988)

[46] The court may specify the time, place, and manner of making the discovery and inspection and may prescribe such terms and conditions as are just. Ala. R. Crim. P. Rule 16.5

[47] Due Process Protections Act, Pub. Law 116-182, 134 Stat. 894 (Oct. 21, 2020)

[48] Hearing before the Subcommittee on Crime, Terrorism, and Homeland Security of the Committee on the Judiciary House of Representatives, 112^th Congress, Second Session, April 19, 2012, Serial No: 11-106. https://www.govinfo.gov/content/pkg/CHRG-112hhrg73861/html/CHRG-112hhrg73861.htm