Criminal Discovery

January 6th, 2009
  • In a criminal case...does the prosecution have a duty to disclose exculpatory evidence in the possession of the police of a different county within the same state? For the price, a simple yes or no plus some case citations would be ok.


  • Start reading here: 54 CARDOZO PUB. LAW, POLICY & ETHICS J. [Vol. 1:35 http://www.cardozo.yu.edu/cplpej/CAP103.pdf Page 20 of 26 pages in the pdf document.


  • Here's the Answer in California: A CALIFORNIA APPELLATE COURT FINALLY ADDRESSES THE DISTINCTIONS BETWEEN BRADY VIOLATIONS AND PITCHESS DISCOVERY (middle of the 8th paragraph) http://www.jones-mayer.com/caseupdates/GPPPitchess/vol3no2.html ..."Put still another way, in People v. Superior Court (Barrett) (2000) 80 Cal. App. 4th 1305, a prosecutor's duty under Brady to disclose material, exculpatory evidence extends to evidence the prosecutor ? or the prosecution team ? knowingly possesses or has the right to possess. The prosecution team includes both investigative and prosecutorial agencies and personnel. "A prosecutor has a duty to search for and disclose exculpatory evidence if the evidence is possessed by a person or agency that has been used by the prosecutor or the investigating agency to assist the prosecution or the investigating agency in its work. The important determinant is whether the person or agency has been acting on the government's behalf." A prosecutor does not have a duty to disclose exculpatory evidence or information to a defendant unless the prosecution team actually or constructively possesses that evidence or information. The court held that information possessed by an agency that has no connection to the investigation or prosecution of the criminal charge against the defendant is not possessed by the prosecution team, and the prosecutor does not have the duty to search for or to disclose such material..." What state? If I got lucky and you're in California, let me know and I'll post in the Answer Box. ~~Cynthia


  • The cardozo article was helpful...thanks for still looking for more.


  • Thanks for the info...I am in Wisconsin, though I wish I were in California! Any clue as to the law in WI?


  • Although this does not specifically address evidence held/possessed by agencies outside the primary jurisction that the proseqution becomes aware of, a couple inferewnces can be made from this: COURT OF APPEALS - DECISION - DATED AND FILED http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wi&vol=wisctapp2%5C4q99%5C98-2885&invol=1 ..." 19. In support, the State cites to State v. Armstrong , 110 Wis.2d 555, 329 N.W.2d 386 (1983). There, Armstrong contended that the State had breached its duty to disclose exculpatory evidence by failing to provide the defense with an accurate copy of a parking ticket that had been issued to him. See id . at 579, 329 N.W.2d at 398. The supreme court disagreed, ruling that the evidence was not within the exclusive possession of the State because "[t]he defendant knew he had been ticketed. He paid the ticket by check and the canceled check was returned to him." Id. at 580, 329 N.W.2d at 398. ..." Here's one more: [in a case summary] Particular Issues -- Exculpatory Evidence -- Disclosure During Trial Reynold C. Moore v. Casperson, 345 F.3d 474 (7th Cir. 2003) For Moore: James Rebholz Issue/Holding: http://www.wisspd.org/html/980case/casesum/habeas.htm#IIBAA ..."Here, even assuming the material qualifies as being ?favorable,? it appears that Mr. Moore?s counsel was able to use the prior inconsistent statements and perform an effective cross-examination of Jones. Although the prosecution ?delayed? giving the information to Mr. Moore, ?defense counsel was able to make good use of the impeaching evidence in his vigorous cross-examination of the prosecution witness? and thus ?the defendant?s due process rights were not violated? because there ?is nothing in Brady . . . to require that such disclosures be made before trial.? Allain, 671 F.2d at 255. ..." I'm still poking around. ~~Cynthia







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