"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Tuesday, May 06, 2008

Time to Criminalize Brady Violations?

Glenn Reynolds wonders if prosecutors who willfully withold exculpatory evidence should be prosecuted.

The question arises on the heels of several high-profile cases in Dallas where convicts have been released because of doubts about their guilt. The new Dallas D.A. is making headlines for cleaning up the mess left by his apparently less-than-ethical predecessor, by reviewing cases where it seems the prosecutors witheld exculpatory evidence, such as confessions by someone other than the charged defendant. Craig Watkins, the new DA, is said to be considering whether a statute should be enacted to criminalize such prosecutorial misconduct.

However, such a statute already exists, 18 USC section 242, which criminalizes depriving any individual of his constitutional rights under the color of law. This is the statute which was used to convict the officers in the Rodney King case after a state jury acquitted them.

As I've pointed out before, it is very difficult to show even an ethical violation in such cases. While the mere fact of evidence not being disclosed can support a finding of a Brady violation, much more is needed to prove an ethical violation: namely, that the prosecutor knowingly (not just negligently) witheld the information. It would be even more difficult to sustain a criminal charge in such a case, where the proof would have to demonstrate a knowing, intentional witholding of material information beyond a reasonable doubt.

Difficult as it already is to show an ethical violation, criminalizing Brady violations would appear to be a "solution" involving more an appearance of being "tough" than a substantive response to the problem.

1 comment:

Ken Lammers said...

Would it also be obstruction under Virginia's code?