By Anna Mumford, Albany Government Law Review
The Fourteenth Amendment of the United States Constitution states that, “[n]o State. . . shall deprive any person of life, liberty, or property without due process of law.” As a cornerstone principle of the criminal justice system, this constitutional right requires the government to disclose all favorable evidence within their control to a criminal defendant. However, all too often in this country, prosecutors have suppressed key evidence that could potentially exonerate a defendant. Even right here, in the great Capital City, there have been instances where the accused have been deprived of the right to due process and a fair trial.
In October 2009, two local Albany men were indicted by the Grand Jury for murder, facing life in prison without the possibility of parole. Their case was scheduled to begin on November 1, 2010. However, during a pre-trial hearing, only four days before opening statements, it was discovered that the Albany County prosecutors had just turned over a key witness’s statement favorable to the defense. The statement, made by an eye witness, claimed that the shooter was not of the same race as either of the co-defendants. Prosecutors, sitting on this statement for the past three years, claimed to have turned over the statement in a “good faith,” timely manner.
Without attacking the Albany County prosecutor’s office, the very representative’s whose duty is to seek justice, this case is used solely to illustrate the growing problem in regards to exonerating evidence within our criminal justice system. This article will begin by taking a brief look at this constitutional right and then end by highlighting some of the potential alternatives to curb such violations.
Motion for Brady
In 1963, the United States Supreme Court’s landmark decision in Brady v. Maryland held that, the “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” In this case, John L. Brady was convicted of murder in the first degree and sentenced to death. Throughout all of the proceedings, Brady admitted to participating in the crime, but claimed to not have done the actual killing. Prior to trial, Brady’s counsel requested the prosecution to turn over all of a co-defendants statements taken post murder. It was not until after the jury’s guilty verdict was affirmed, that it was discovered the prosecution withheld a statement by the co-defendant confessing to the homicide. Deriving its decision from legal precedent, the United States Supreme Court found an affirmative duty of the government to disclose such material evidence.
Since this significant decision, exculpatory evidence material to a defendant’s case has been referred to as “Brady material.” The Court has made it clear that materiality is determined only when there is a “reasonable probability” that suppression of the evidence by the prosecution has affected the outcome of the trial. As Justice Souter once quipped, “[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.”
In the numerous federal cases that have interpreted Brady since 1963, the courts have found that this material covers evidence going to the credibility of a witness, including evidence for the sole purpose of impeachment. Additionally, evidence that damages the probative value of testimony or written documents offered by the government is considered Brady material. For instance, evidence concerning any cooperation agreement between the prosecutor and a witness must be disclosed to the defendant.
It is also well settled that the prosecution has an obligation to disclose Brady material regardless of whether the defendant has specifically requested the evidence. In fact, under the Model Rules of Professional Conduct, prosecutors have a broad ethical obligation to disclose evidence favorable to the defense. Thus, disclosure of Brady material appears to be a self executing obligation on the part of the government. The Court has further expanded on this affirmative duty to require the prosecution to learn of any government actors, such as the police, who may have knowledge of favorable evidence material to the defendant. Since it is the prosecutors who determine what evidence is exculpatory, any questionable evidence should be disclosed to the defendant. The Court of Appeals of New York cautioned that appropriate prosecutorial conduct would be to “err on the side of disclosure where exculpatory value is debatable.”
It has been urged that prosecutors disclose Brady material as soon it becomes apparent to them. This is necessary for the adversary to prepare an adequate defense using the exculpatory evidence. It may also lead to a more speedy resolution and a more efficient use of the government’s resources.
Deterring Brady Violations
It seems undeniable that to ensure a fair trial, prosecutors cannot be the “architect of a proceeding.” Justice Souter once observed that their role is to
[P]rosecute with earnestness and vigor–indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
It is evident by the success of our criminal justice system that the majority of prosecutors routinely fulfill their obligations and comport with standards of integrity and fair dealing. A number of Brady violations are the direct result of a qualified and extremely talented prosecutor’s overburdening caseload. Yet, as noted by two criminal defense lawyers, proof that some prosecutors continue to violate their constitutional duty is shown by the Supreme Court’s granting of certiorari, “in cases centering upon withheld Brady material in each decade following the year Brady was decided.”
It is argued that one reason prosecutors fail to disclose exculpatory material to the defense is because they are more concerned with higher conviction rates than ensuring a fair trial. One commentator remarked that prosecutors keep track of their win-loss record to advance their own professional, political, or social standing. Moreover, since it is the prosecutors who determine what constitutes Brady material, they can withhold it with little fear of the defense becoming aware of it. Plus, if it is discovered, the prosecution is rarely sanctioned.
In an effort to curb Brady violations, it has been suggested that prosecutors face financial penalties in the form of lawsuits or fines. Yet, case law has undoubtedly established that prosecutors are federally protected from civil liability while representing states in a criminal proceeding. Indeed, the Supreme Court stated that the principles of the Fourteenth Amendment are not to punish the “misdeeds of a prosecutor but avoidance of an unfair trial to the accused.”
It has also been recommended that States develop written guidelines about Brady related issues. These rules codifying the case law, would not only provide direction to prosecutors, but “communicate a message . . . that good discovery practices are mandated.” Maryland, the same state in which the Brady decision stems from, has adopted state court rules which explicitly outline what is material evidence. However, on a federal level, this proposal has been specifically rejected by the United States Department of Justice.
One legal scholar suggested the use of a “Brady Instruction,” which would inform the jury of the prosecution’s intentional failure to disclose exculpatory evidence to the defendant against federal obligations. Another has proposed that the Court dismiss the indictment altogether on a finding of willful suppression by the government. This academic argues that a re-trial, although an annoyance, does not actually harm a prosecutor’s chance of conviction. On the other hand, the risk that a defendant may go free would effectively deter a prosecutor from willfully withholding exonerating evidence.
No matter how the criminal justice system determines to deal with Brady issues, it is important that a “[p]rosecutor’s dishonest conduct or unwarranted concealment should attract no judicial approbation.” These examples were just a handful of enforcement mechanisms that have been proposed in an effort to deter Brady violations, and will hardly be the last as violations continue to persist. It is imperative, though, that the legal and general community is informed about this issue to improve compliance with federal obligations and ensure all criminal defendants a fair trial, especially in Albany.
 U.S. Const. amend. XIV, § 1.
Brady v. Maryland, 373 U.S. 83, 87 (1963).
 Albert D. Brault & Timothy F. Maloney, A Standard for Fair Trials, Wash. Post, May 17, 2009, available at http://www.washingtonpost.com/wp-dyn/content/article/2009/05/15/AR2009051502924.html.
Robert Gavin, Statement Could Cancel Trial, Times Union, Oct. 29, 2010, available at http://www.timesunion.com/local/article/Statement-could-cancel-trial-735639.php.
Press Release, Office of the Albany County District Attorney, Two Indicted for ’07 Christmas Eve Murder of Albany Man (Oct. 2009), available at http://www.albanycountyda.com/press_releases/October_2009/press.htm.
 Gavin, supra note 4.
 Brady v. Maryland, 373 U.S. 83, 87 (1963).
Id. at 84.
Id. at 86– 87 (quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935)(“Such a contrivance by a state to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.”)).
Maitri M. Klinkosum & Brad Bannon, Brady v. Maryland and Its Legacy— Forging a Path for Disclosure, 11 N.C. St. B. J. 8, 9 (2006).
 U.S. v. Bagley, 473 U.S. 667, 682 (1985); Kyles v. Whitley, 514 U.S. 419, 434 (1995).
 Kyles, 514 U.S. at 434.
 Giglio v. United States, 405 U.S. 150, 154 (1972); People v. Novoa, 70 N.Y.2d 490, 496 (1987).
Novoa, 70 N.Y.2d at 496; People v. Cwikla, 46 N.Y.2d 434, 441 (1979).
 Cwikla, 46 N.Y.2d at 441.
United States v. Agurs, 427 U.S. 97, 110 (1976).
 Cone v. Bell, 129 S. Ct. 1769, 1783 n.15 (2009); Model Rules of Prof’l Conduct R. 3.8 (d) (“A prosecutor in a criminal case shall . . . make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.”).
Kyles v. Whitley, 514 U.S. 419, 437 (1995).
 Agurs, 427 U.S. at 108.
 Id.;People v. Vilardi, 76 N.Y.2d 67, 77 (1990).
Jennifer Blasser, Prosecutorial Disclosure Obligations and Practices, 31 Cardozo L. Rev. 1961, 1968 (2010) (representatives from state and federal prosecutor’s have cautioned for an exception when it comes to witness safety).
 Brady v. Maryland, 373 U.S. 83, 88 (1963).
 Berger v. United States, 295 U.S. 78, 88 (1935).
Alafair S. Burke, Talking about Prosecutors, 31 Cardozo L. Rev. 2119, 2128 (2010).
Kenneth Bresler, “I Never Lost a Trial”: When Prosecutors Keep Score of Criminal Convictions, 9 Geo. J. Legal Ethics 537, 541 (1996).
 Burke, supra note 30, at 2128.
 Id. at 2129.
 Sara Gurwitch, When Self-Policing Does Not Work: A Proposal for policing Prosecutors in Their Obligation to Provide Exculpatory Evidence to the Defense, 50 Santa Clara L. Rev. 303, 311– 12 (2010).
 Brady v. Maryland, 373 U.S. 83, 87 (1963).
 Blasser, supra note 27, at 2013– 14.
Id. at 2014.
 Brault & Maloney, supra note 3.
 Cynthia E. Jones, A Reason to Doubt: The Suppression of Evidence and the Inference of Innocence, 100 J. Crim. L. & Criminology 415, 447 (2010).
 Gurwitch, supra note 34, at 304.
 Id. at 322.
 Id. at 321.
Banks v. Dretke, 540 U.S. 668, 696 (2004).