Wednesday, August 15, 2007

An uncomfortable Brady question: Must you disclose when your witness robs a courthouse candy machine during trial?

Here's the scenario: a prosecution witness allegedly burglarizes a vending machine inside the courthouse while the trial is going on. A witness supposedly saw the incident, which occurred out of the view of video cameras.

Before he calls the witness to the stand, does the ADA have a duty under Brady v. Maryland (a Supreme court case that requires disclosure of evidence that might assist the defendant) to disclose the accusation?

A prosecutor in Marshall (Harrison County) faced that question yesterday, and hurriedly queried the TDCAA's user forum for advice. At the end of the day, the elected Harrison County DA himself took over the decision and disclosed the accusation. Some of you legal eagles out there may be interested in the details of their discussion. (To avoid them removing the string again I've copied it onto this Google document.)

I think his office made the right decision in the end, but just imagine the poor prosecutor's dilemma. Talk about an impeachable witness - one who allegedly stole a wad of cash from a courthouse vending machine during trial! Further evidence, as they say, that angels do not witness transactions in hell.

BTW, the entries in Wikipedia on Brady v. Maryland and what constitutes Brady material are both extremely minimalist. Perhaps one or more of you lawyers with time on your hands might want to help them out and improve those pages.


Anonymous said...

Thanks for a great guffaw with my morning coffee!

CapitolAnnex said...

can you emial me at

Anonymous said...

1. Brady material is that which tends to exculpate the defendant.

2. Impeachment evidence of a witness may be Brady material.

3. This allegation of theft is just that, an allegation. It may or may not be admissible as impeachment material.

4. DA makes correct call on the side of caution. Still, the allegation very well may not be admissable as impeachment.

Gritsforbreakfast said...

It MAY not be admissible, but that's not the DA's call. If they conceal the information from the defendant and the court, nobody would ever know! I'm not a lawyer but I think it's a stretch to say there's any circumstance where that information wouldn't be Brady material.

Unknown said...

Correct me if I'm wrong - but isn't deliberate withholding of any relevant information in any legal investigation or trial considered perjury? And on a related note: isn't deliberate withholding of relevant information on a job application or grant permit considered fraud? I've run into a lot of fast talkers who insist that not telling all the facts is not really lying. Of course, perjury and fraud may not be considered as lying by some people.

Gritsforbreakfast said...

JT, the question is whether the new crime by a witness is relevant to the CURRENT trial, and whether the prosecutor gets to make that call of their own volition. I don't think they do when it's their witness.