The Remedy for Concealed Evidence
When evidence is concealed it can have major constitutional consequences for the government. But not all concealed evidence matters. There is a special class of evidence recognized under the Fourteenth Amendment’s Due Process Clause as established in Brady v. Maryland, (1963) 373 U.S. 83.
There are two main classes of evidence, they are called exculpatory and inculpatory. Exculpatory evidence tends to exculpate; in simple terms it means evidence that shows one is not guilty. Inculpatory evidence tends to inculpate; in simple terms it means evidence that shows one is guilty.
“This Court has rejected any such distinction between impeachment evidence and exculpatory evidence.” (United States v. Bagley (1985) 473 U.S. 667, 676) Impeachment evidence tends to show a witness is lying, is biased, has a motive, or an interest. The Oxford Dictionary defines impeachment as “2. the action of calling into question the integrity or validity of something”.
The other kind of impeachment you may have heard of is not what is meant here. The other is an attack on an elected official. Which goes to the first definition offered by Oxford, “1. (especially in the US) a charge of misconduct made against the holder of a public office”.
What is being discussed here is what is commonly called a Brady violation. Here we discuss it in the context of a jury trial (which includes a court trial). Another article discussed the effect of concealed evidence on a plea of guilty.
THE ELEMENTS OF A BRADY VIOLATION
The rule was set out by In re Sassounian (1995) 9 Cal.4th 535, 544-546, and fns. 5, 7 quoting from United States v. Bagley (1985) 473 U.S. 667, 674-678, and in part from Strickland v. Washington (1984) 466 U.S. 668, 694, 695. For ease of reading, the rule without quotations and citations is laid out below.
The prosecution has a duty under the Fourteenth Amendment’s due process clause to disclose evidence to a criminal defendant that is both favorable to the accused and material either to guilt or to punishment. Evidence is favorable if it either helps the defendant or hurts the prosecution, as by impeaching one of its witnesses. Evidence is material only if there is a reasonable probability sufficient to undermine confidence in the outcome on the part of the reviewing court.
Assessed by considering the totality of the relevant circumstances and not in isolation or in the abstract. Viewed objectively, based on an assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision, and not dependent on the idiosyncrasies of the particular decisionmaker,
To merit relief on this basis, the defense must show both the favorableness and the materiality of any evidence not disclosed by the prosecution.
That showing of the favorableness and materiality of any evidence not disclosed by the prosecution necessarily establishes at one stroke what in other contexts are separately considered under the rubrics of error and prejudice. For, here, there is no error unless there is also prejudice.
If one establishes a probability sufficient to undermine confidence in the outcome, as a matter of necessity, one establishes the prosecutorial nondisclosure was not harmless beyond a reasonable doubt.
Additional Information About Concealed Evidence
Just 77 days later the last two paragraphs above was the same conclusion adopted independently in Kyles v. Whitley (1995) 514 U.S. 419, 435-36.
Kyles reaffirmed that when police conceal evidence, even if the prosecutor does not know they did, a Brady violation has occurred. Which was affirmed in California per In re Brown (1998) 17 Cal.4th 873.
“Kyles v. Whitley, 514 U. S. 419, 437 (1995) (prosecutors are responsible for ‘any favorable evidence known to the others acting on the government’s behalf in the case, including the police’).” (Banks v. Dretke, (2004) 540 U.S. 668, 693)
Banks also established that witness coaching is a violation of Brady and that the government’s obligation to provide the defense with exculpatory evidence continues after the trial has ended.
Justice Ginsburg was particularly fired up over this case, giving us many good one liners.
“Through direct appeal and state collateral review proceedings, the State continued to hold secret the key witnesses’ links to the police and allowed their false statements to stand uncorrected.” (Banks at 675)
“When police or prosecutors conceal significant exculpatory or impeaching material in the State’s possession, it is ordinarily incumbent on the State to set the record straight.” (Banks at 675-676.)
“Prosecutors’ dishonest conduct or unwarranted concealment should attract no judicial approbation.” (Banks at 696) Oxford defines approbation as “approval or praise”. Meaning that the effect of not sanctioning is to condone or approve of and to reward.
Concealed Evidence Deprives the Right to Trial by Jury
We Always Apply the Narrow Amendment
The courts have reviewed concern of due process. The high court has also held when a more narrow constitutional amendment applies we are to analyze it under those rules and not general due process.
“We have held that where another provision of the Constitution ‘provides an explicit textual source of constitutional protection,’ a court must assess a plaintiff’s claims under that explicit provision and ‘not the more generalized notion of `substantive due process.” Graham v. Connor, 490 U.S. 386, 395 (1989). Challenges to the reasonableness of a search by government agents clearly fall under the Fourth Amendment, and not the Fourteenth.” (Conn v. Gabbert (1999) 526 U.S. 286, 293)
There is Only One Entity Empowered for the Job
Here’s the thing: in our country, no matter how much the prosecutor jumps up and down and how badly the police just know they have the right guy, nor even how jaded a judge may be, the only entity authorized by our constitutions to declare a citizen shall surrender Liberty, is ourselves. The community sits as judges of the evidence, what we commonly refer to as the jury.
The jury must be satisfied beyond a reasonable doubt, defined as “the need to reach a subjective state of near certitude of the guilt of the accused, the standard symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself.” (Jackson v. Virginia, (1979) 443 U.S. 307, 315)
When a prosecutor or member of law enforcement decides to conceal evidence they are usurping the jury’s role as fact finder. That is a denial of the right to trial by jury. That denial results in automatic reversal. Why the courts think they have the right to weigh the evidence and not the jury has never been explained.
There is no need for the courts to later re-weigh the evidence and decide if it is material or not. That decision was already made for them. As said in the context of lying: “That the Assistant State’s Attorney himself thought it important to establish before the jury” (Napue v. Illinois, (1959) 360 U.S. 264, 270) likewise when the government thinks it is important enough to hide from the jury, there is no need to stand in their way by thinking about it anymore. “A reviewing court can only engage in pure speculation—its view of what a reasonable jury would have done. And when it does that, ‘the wrong entity judge[s] the defendant guilty.'” (Sullivan v. Louisiana, (1993) 508 U.S. 275, 281)
Concealed Evidence from the Fact Finder Undermines Why we have a Jury Trial Right
The argument made above was already established.
“The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and … protection against arbitrary action… an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. … Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence. The deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement qualifies for protection under the Due Process Clause of the Fourteenth Amendment, and must therefore be respected by the States.” (Duncan v. Louisiana, (1968) 391 U.S. 145, 155-56)
Concluding Concealed Evidence
The very case that established the right to trial by jury must be respected by the states, set out why only the jury can decide, reviewing courts are “a group of judges” and when they determine materiality after the government itself thought it important enough to hide, ‘the wrong entity judge[s] the defendant guilty.'”
It is reasonable to conclude that if the prosecutor or police harbored such a strong doubt about the effect this evidence would have on a jury, then the analysis is complete. Because “reasonable doubt marks the legal boundary between guilt and innocence.” (Schlup v. Delo (1995) 513 U.S. 298, 328) Their doubt establishes innocence.
“The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” (Burks v. United States (1978) 437 U.S. 1, 11) Logic dictates concealed evidence, already mustered by the government, but denied to the jury, forbids affording the prosecution any second opportunity.
“And it will tend to preserve the criminal trial, as distinct from the prosecutor’s private deliberations, as the chosen forum for ascertaining the truth about criminal accusations.” (Kyles v. Whitley (1995) 514 U.S. 419, 440) Because ‘”the defense might abandon lines of independent investigation, defenses, or trial strategies that it otherwise would have pursued.’ (Bagley, supra, 473 U.S. at p. 682.)” (In re Brown, (1998) 17 Cal. 4th 873, 887)
“Denial of the right to a jury verdict of guilt beyond a reasonable doubt is certainly an error… whose precise effects are unmeasurable… [undermining] ‘a profound judgment about the way in which law should be enforced and justice administered.’ Duncan v. Louisiana, at 155. The deprivation of that right, with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as ‘structural error.”’ (Sullivan v. Louisiana (1993) 508 U.S. 275, 281-82)