1. Discovery James Luttrull Jr. Prosecutor, 48 th Judicial Circuit

2. “Nearly all men can stand adversity, but if you want to test a man’s character, give him power.” - Abraham Lincoln

3. The Constitution and the Brady Doctrine Brady V. Maryland

4. Brady v. Md : Facts  Brady and Boblit rob Brooks.  Brady wants to strangle Brooks, Boblit wanted to shoot him.  Brady and Boblit tried convicted and sentenced to death in separate trials;  Pretrial Brady’s attorney asked to see Boblit’s statements and was shown all but one;  The undisclosed statement Bobit admitted to doing the killing himself;

5. Supreme Court’s response in Brady: “Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly."

6. Brady holding  We now hold that the 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…….

7. Indiana and Brady: Failure to timely disclose:  An agreement to reduce bond on unrelated charge if witness would testify against defendant. Goodner v. State  Providing the sole witness to a homicide a two night stay in a motel through the victim assistance program. Gardner v. State

8. Indiana and Brady: Failure to timely disclose:  Not pursuing criminal charges against witness. Williams v. State  Failure to disclose false informing conviction of a witness even though the conviction was under an alias. Carroll v. State

9. Indiana and Brady Each of the above were held not to technically be Brady violations because the defense eventually learned the information prior to close of evidence in the trials.

10. To prevail on a claim that the prosecutor failed to disclose exculpatory evidence, a defendant must establish:  That the evidence at issue was favorable to the accused because it was either exculpatory or impeaching;  The evidence must have been suppressed by the state, either willfully or inadvertently; and  Prejudice must have ensued. Carroll v. State

11. Brady essentially requires evidence that is both favorable and material must be disclosed. A conviction obtained by the knowing use of perjured testimony must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. United States v. Agurs

12. Brady essentially requires evidence that is both favorable and material must be disclosed. In other cases materiality is defined as a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. (Reasonable probability = a probability sufficient to undermine confidence in the outcome.) United States v. Bagley

13. When is a deal a deal? An expectation only of a deal or leniency when the State has neither confirmed nor denied that hope does not constitute an agreement that must be disclosed under Brady. Lambert v. State Rubalcada v. State

14. Consider Protective Orders  Child porn prosecutions  State v. Bowser, 772 N.W.2d 666 (Wis. Ct. App. 2009  Comm. v. Ruddock, 2009 Mass. Super. LEXIS 262, 26 Mass. L. Rep. 175 (Mass. Super. Ct. 2009)  Recorded forensic interviews of children  Sample form available

15. Preservation/Destruction of evidence When the State fails to preserve “potentially useful evidence” the defense must show the State acted in bad faith (i.e. the conscious doing of wrong). Blanchard v. State

16. Preservation/Destruction of evidence If evidence that is “materially exculpatory” is not preserved then good or bad faith is irrelevant.

17. Preservation/Destruction of evidence  “Material exculpatory evidence” has been defined as evidence which "possesses an exculpatory value that was apparent before the evidence was destroyed, and  be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Wade v. State

18. When the prosecution determines evidence to be nonmaterial, and further decides not to advise defense counsel of such evidence prior to its destruction, a heavy burden rests upon the prosecution to demonstrate that the destruction of such evidence did not prejudice the defendant. In determining materiality, the prosecution should consider the seriousness of the charge.

19. In determining materiality, the prosecution should :  Consider the seriousness of the charge.  And whether the evidence is relevant either to the defendant's guilt or punishment.  must evaluate the potential usefulness to the defendant of the evidence, for rebuttal or impeachment of the state's case.  if the prosecutor has any doubts concerning the potential materiality of the evidence, he must retain it. Birkla v. State

20. if the prosecutor has any doubts concerning the potential materiality of the evidence, he must retain it.

21. Discovery in Indiana Reciprocity – the balancing of the right to discovery on both sides is a key principle in Indiana discovery rules. State ex rel Keller v. Criminal Court of Marion Co.

22. Grand Jury transcripts.  Basic Rule: secrecy of Grand Jury transcripts.  State ex rel. Keller allows the trial court to order pretrial discovery by the defendant of a transcript of those portions of the grand jury minutes containing testimony of persons the prosecutor intends to call as witnesses at a hearing or trial.

23. Grand Jury Transcripts  Discoverable by the defendant of a transcript of those portions of grand jury minutes containing testimony of persons the prosecutor intends to call as witnesses….

24. Confidential Governmental Informa tion  A defendant's right to discover exculpatory evidence, however, does not include the authority to search through the government's files unsupervised.  The defendant is entitled to have the trial court conduct an in camera review of government files to determine if they contain information which is both favorable to the accused and material to guilt or punishment. Rubalcada v. State

25. Work Product  Defined as an attorney’s mental impressions, conclusions, opinions or legal theories.  Protects material prepared by agents for the attorney.  Police reports can be considered work product;  But if essentially a verbatim witness statement then not work product.

26. Work Product Purpose of the exception is to protect from disclosure an attorney’s mental impressions, conclusions, opinions or legal theories. Hicks v. State

27. Work Product and Police Reports  Investigative police reports generally are non-discoverable over a timely work product objection of the prosecutor. State ex rel. Crawford v. Superior Court of Lake County  Substantially verbatim witness statements included within police reports are not shielded from pretrial discovery.  An in camera inspection by the trial court will permit the court to make a determination of “work product protected report” vs. “substantially a verbatim statement”.

28. Work Product and Police Reports Exculpatory information must be disclosed despite being contained within a police report or any privileged document. Johnson v. State

29. Informants  General policy is to prevent disclosure of an informant’s identity unless the defense can demonstrate that disclosure is relevant and helpful to defendant or is necessary for a fair trial. Schlomer v. State  If the defendant makes such a showing then the burden shifts to the State to make a more compelling showing that disclosure would hamper the prosecution or do a disservice to the public interest. Allison v. State

30. Informants: Generally disclosure not necessary if the informant is  a mere tipster; Beverly v. State  an introductory tool, Schlomer v. State  merely observed the crime and was a non-participant; Craig v. State

31. Informants  However, a participant informer is almost always a material witness. Ortez v. State

32. Protective Orders Seeking a protective order when you believe something or someone needs protecting makes sense. Demonstrates good faith and not simply hiding information.

33. Protective Orders  Controlling exhibits in child porn cases  An order limiting use of CAC interviews of children.  Where early disclosure or too much disclosure would jeopardize an ongoing investigation or jeopardize a witness, the prosecutor may seek a protective order.  The Rules of Professional Conduct suggest it.[ e.g. 3.8(d)]

34. The Brady Rule & 3.8(d) Avoiding reversals and disciplinary actions

35. 3.8(d) The prosecutor in a criminal case shall: (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing,….

36. 3.8(d) The prosecutor in a criminal case shall: ….disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

37. Brady v. Maryland ≠ 3.8(d)

38. Differences between 3.8(d) and Brady  Brady concerned with a fair trial for the defendant. 3.8(d) is concerned with YOU!  Brady applies regardless of good or bad faith. 3.8(d) hopefully requires an intentional violation.  Brady will apply to the prosecution team. 3.8(d) will only apply to prosecutors.

39. Differences between Brady and 3.8(d)  Brady has a materiality requirement; 3.8(d) has no materiality requirement.  Brady is a post-trial examination of a failure to disclose exculpatory information. 3.8(d) requires a “timely” disclosure of exculpatory evidence.

40. Goodner v. State and 3.8(d)  [Failure to timely disclose that prosecutor had agreed to a bond reduction for witness in exchange for agreement to testify.]  “We cannot continue to tolerate late inning surprises later justified in the name of harmless error. Continued abuses of this sort may require a prophylactic rule requiring reversal. In the meantime, there are other sanctions for prosecutorial misconduct. ………..

41. …..The Indiana Rules of Professional Conduct require a prosecutor to 'make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.' Rule 8.4(d) also states that it is misconduct for a lawyer to 'engage in conduct that is prejudicial to the administration of justice.

42. Members of the bar and the trial bench should remember their obligation to report such misconduct to the proper authorities.”

43. Gardner, supra.  Failure to timely provide detectives notes that revealed witness had been given a two night stay in a motel.  Prompted Court of Appeals to include the above quote from Goodner.

44. Williams v. State  Failure to timely disclose that witness promised not to be charged with drug dealing even though detective said he had informed the screening deputy prosecutor but trial prosecutor had not been informed.

45. Williams v. State – interoffice communication essential  “the Prosecutor's office was obligated to make timely disclosure. In order to discharge that obligation, the office needs to implement procedures to assure that information it holds collectively finds its way to the appropriate trial attorney in a timely manner.”

46. ABA Formal Opinion 09-454  Poses a hypothetical case:  In a strong armed robbery case, prosecutor knows:  Victim and eyewitness ID Def at lineup  However, 2 other witnesses view lineup and say they do not see the perp.  Confidential Informant tells police SODDI.

47. The prosecutor concludes:  Informant is a criminal who has no credibility;  The 2 eyewitnesses who failed to ID didn’t have a very good view of crime. At issue:  Does 3.8(d) require prosecutor to disclose the 2 bystanders who don’t ID defendant and the informant?  If so, when?  And would a waiver from def. matter?

48. Material vs. favorable?  Need not be material evidence; only favorable.  “Rule 3.8(d) is more demanding than the constitutional case law in that it requires disclosure…… to defense without regard to the anticipated impact of the evidence or information on a trial’s outcome.” p. 4

49. Knowledge?  Evidence or information of which you have actual knowledge which may be inferred from the circumstances.  No requirement that prosecutors have to conduct an investigation for favorable evidence of which you are not already aware.

50. Timely Disclosure  Disclosure in time for it to be effectively considered and used by the defense.  Including in time for attorney to advise defendant whether or not to plead guilty.

51. Protective Order  Where early disclosure or too much disclosure would jeopardize an ongoing investigation or jeopardize a witness, the prosecutor may seek a protective order.

52. Disclosing evidence favorable to sentencing  Defendant’s level of involvement or influence of 3rd party.  Requires report to court as well as defendant.  Timely  Unprivileged information only

53. Supervisor’s additional responsibility: Procedures in place to ensure that:  those under your supervision meet their ethical obligations;  screening deputy’s and co-counsel’s information gets related to deputy with discovery compliance responsibility;  oral communications are memorialized.

54. In conclusion: Know that Formal Opinion 09-454:  Points out that 3.8(d) has essentially been in existence since 1908;  Says “disciplinary authorities rarely proceed against prosecutors in cases that raise interpretive questions under 3.8(d). ”  Cites N.C. State Bar v. Michael B. Nifong  Favorably cited by the recently departed Executive Director of the Indiana Supreme Court Disciplinary Commission.

55. Whenever a man does a thoroughly stupid thing, it is always from the noblest motives. — Oscar Wilde, The Picture of Dorian Gray

56. “The fact is, I didn't pick the crime. I didn't pick the time. But I'm going to do the case right.” - Michael Nifong

57. “…..the citizen’s security lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.” - Robert Jackson, Associate Justice of the Supreme Court of the United States and Chief Prosecutor, Nuremberg War Crimes Tribunal