Photo: Mike Gifford
Even though we live in a country where a defendant is considered innocent until proven guilty, the United States justice system has long been viewed as heavily one-sided in favor of the prosecution. With more personnel, financial and other investigative resources at their disposal, prosecutors get to cherry pick which pieces of an investigation will be relevant to the trial, and if a prosecutorial office values victory over ethics, defendants will often unjustly pay the price.
However, in an attempt to right these wrongs, The Center for Prosecutor Integrity (CPI) has proposed legislation entitled the Federal Prosecutor Integrity Act which they are hoping will prevent further violations of the Brady provision.
So What Exactly is the Brady Provision?
The Brady provision or Brady disclosure relates to the information and evidence gathered by a prosecutorial team that could either incriminate or exonerate a defendant. The term comes from the 1963 U.S. Supreme Court case of Brady v. Maryland, a murder case in which the defendant admitted to being part of the crime but the prosecution withheld a statement from one of Brady’s companions claiming to have committed the actual murder. The Supreme Court found this withholding of evidence to be a violation of the Due Process Clause of the Fourteenth Amendment.
As a result of the case, prosecutors must disclose information and/or evidence that might prove the innocence of a defendant or enable the defense to impeach the credibility of government witnesses. Examples of instances where the Brady provision comes into play include:
- A prosecutor must disclose if a witness’s testimony comes as a result of either leniency or immunity in regards to the prosecution of the witness.
- A prosecutor is expected to be in communication with police so they may inform him/her of any exculpatory evidence [evidence favorable to the defendant] that may arise.
- A prosecutor must disclose arrest photographs of the defendant if those photos don’t match a victim’s description.
- A prosecutor must notify the defense if a law enforcement official involved in the case has a past history of knowingly lying in an official capacity.
- A prosecutor may have to provide (depending on the state) documentation or information relating to witness credibility.
Currently under the Brady provision, prosecutors are required only to disclose evidence they believe will potentially determine the outcome of the case. However, in the opinion of many defense attorneys, this leaves too much room for interpretation, and again, when a prosecutorial team places such a high value on winning, that interpretation is rarely in the favor of the defendant.
According to CPI’s Registry of Prosecutorial Misconduct, Brady violations lead the way when it comes to misconduct by federal prosecutors. For example, in pretrial misconduct offenses, Brady violations occur almost five times more than the second highest offense [plea bargain offenses].
Put those top two offenses together, and you have a real problem. According to the U.S. Department of Defense, approximately ninety-six percent of federal criminal cases are resolved through plea bargaining. If prosecutors fail to present exculpatory evidence during these negotiations, a defendant is unfairly led to believe they won’t have a chance to prevail in court.
CPI Steps in with the Federal Prosecutor Integrity Act
According to their website, The Center for Prosecutor Integrity (CPI) is a 501(c)3 organization, “working to preserve the presumption of innocence, assure equal treatment under law, and bring an end to wrongful convictions through the enhancement of prosecutor ethics.”
In June of this year, CPI released their proposed bill, the Federal Prosecutor Integrity Act, requiring federal prosecutors to provide defense attorneys access to all evidence relevant to the case via an Open-File policy. This means that at the time of arraignment, defense attorneys would be able to examine such things as forensic test results, all witness statements, and any other evidence gathered by the prosecutorial team.
According to CPI Advisory Board chairman Phillip Kuhn, “It nearly defies belief that in this day and age, prosecutors are still concealing evidence that would keep an innocent man from going to jail.”
Along these lines, Alex Kozinski, chief judge of the U.S. Court of Appeals for the 9th Circuit stated in his dissenting opinion in United States v. Olsen, “Some prosecutors don’t care about Brady [v. Maryland] because courts don’t make them care.”
CPI has set out to address this issue as well in the Federal Prosecutor Integrity Act. Various sanctions are in place to ensure compliance from prosecutors to these open-file standards. These may include monetary sanctions, a court ordered retrial, a “not guilty” verdict, and even providing the defendant the right to civil action if they believe exculpatory evidence was withheld.
In order to address one of the concerns with such an open-file system, the Federal Prosecutor Integrity Act includes a provision wherein prosecutors may obtain a Protective Order allowing them to withhold any information that might place a witness in danger.
This isn’t the first time Open-File has been brought into the spotlight. It is already being implemented by some state and local governments, and it is a practice which has been embraced by the American Bar Association.
Many people argue that the word “fair” is too broad and vague when one tries to connect it with the word “justice.” However, when it comes to a system of justice, it shouldn’t be too much to think that everyone deserves a “fair trial.” With this in mind, the Federal Prosecutor Integrity Act seems to be a step in the right direction.