What is a prosecutor’s duty to disclose evidence?
In criminal cases the State has the burden to prove beyond a reasonable doubt that the defendant committed the crime being charged. The State can only satisfy its burden if it produces supporting evidence. Supporting evidence is gathered by the law enforcement agencies involved in the case. The collection of evidence gives the prosecution a distinct advantage in criminal cases. The State’s ability to collect evidence and its unlimited resources has persuaded the United States Supreme Court to establish a clear rule that the prosecution must disclose any material, exculpatory evidence to the defendant and his counsel. Brady v. Maryland, 373 U.S. 83 (1963). This fundamental duty of prosecutors is unconditional.
What if a prosecutor fails to disclose evidence?
Since the Brady decision was decided, courts have determined that not every failure of a prosecutor to disclosed evidence will result in a reversal of a conviction. Instead, courts use a two-pronged approach to determine whether the violation warrants reversal of the conviction: where the suppression of evidence “(1) remains unknown to the defense both before and throughout trial and (2) is material and exculpatory, meaning its disclosure would have created a ‘reasonable probability’ that ‘the result of the proceeding would have been different.'”
This exception poses serious problems for defense. For example, imagine that the prosecution holds back exculpatory evidence until mid-way through the trial, as happened in State v. Alvarado, 2014 UT App 87. In that case the court found that there was no Brady violation because the first prong of the above test was not met, because the information was disclosed mid-trial. As defense counsel, finding out about exculpatory evidence during trial creates a huge burden. It leaves no time to prepare how to use the information as substantive evidence or for impeachment purposes while cross examining witnesses. It also gives prosecutors an out for acting in bad faith by withholding evidence until the time of trial.
Fortunately, Rule 16 of the Utah Rules of Criminal Procedure provides a partial remedy for when prosecutors withhold evidence in that a defendant can request a continuance to allow for preparation concerning the newly discovered evidence. In the Alvarado case the defendant’s attorney did not request a continuance but instead moved forward with the trial in spite of the late disclosure of evidence.
Thus, in order to prove a Brady violation there must be evidence withheld by the State all the way through trial, and it must be such that would exonerate the defendant or at least change the outcome of the case.