In The Interests of Justice: Why Federal Prosecutors Should Welcome Evidence Disclosure Reforms

By Kristin Keehan, Albany Government Law Review

            Under Brady, a prosecutor’s failure to provide material, exculpatory evidence to the defense is a violation of due process.[1]  This famous ruling is commonly known as “The Brady Rule.”[2]  The ruling from Brady has been further embodied in the New York Rules of Professional Conduct, Rule 3.8(b):  Special Responsibilities of Prosecutors and Other Government Lawyers:

b. A prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant or to a defendant who has no counsel of the existence of evidence or information known to the prosecutor or other government lawyer that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the sentence, except when relieved of this responsibility by a protective order of a tribunal.[3]

The failure to provide evidence that could be deemed to be Brady material can result in mistrials,[4]  reversal on appeal, and/or professional sanctions.  However, the damage done to a criminal defendant is usually the cause of irreparable harm.

            The thirst for a “win” in court has led to more and more Brady violations.  In 2003, a man by the name of Edgar Rivas was convicted of conspiracy to possess more than five kilograms of cocaine while he was aboard the foreign freighter the Antwerpen arriving in the United States.[5]  The day before trial was to begin, the Government’s main witness admitted to carrying onto the Antwerpen the cocaine that was found in Rivas’s cabin.[6]  The Government, however, failed to disclose this information to the defense, and Rivas was convicted.[7]  On appeal, the U.S. Court of Appeals for the Second Circuit found the Government’s actions to be in violation of the Brady Rule, vacated the judgment, and ordered a new trial.[8]  The only reason that Rivas’s defense counsel ever found out about the Brady violation was through a Government translator who approached defense counsel after the trial.[9]  Unfortunately, Mr. Rivas is just one of many who suffer at the hands of prosecutors who wish to conceal evidence from the defense.  According to Marvin Schecter, “the slow trickle of uncovered Brady violations spawned by DNA exonerations has become a steady, flowing stream of egregious cases.”[10]  Schecter believes that the violating of Brady is “something that is learned and taught.”[11]  Though such claims have been ardently denied[12], the reaction to legislation to keep such Brady violations at bay signals that Schecter’s assertion might not be as outlandish as some claim.

Continue reading “In The Interests of Justice: Why Federal Prosecutors Should Welcome Evidence Disclosure Reforms”

Trickle-Down Empowerment: How The New York State Legislature Can Empower Attorneys Who Advocate For Victims of Domestic Violence by Incorporating Social Science Findings When Justifying New Legislation

By Heath Hardman, Albany Government Law Review       

I. Introduction

The fields of social science and psychology continue to make advances in human understanding, and courts sometimes make use of this information.[1]  But how can attorneys broaden their access to this information when representing victims of domestic violence?  One way is by requesting that a court take judicial notice of certain legislative facts concerning domestic violence.  While an attorney can support this request by citing scholarly sources, the court, in its discretion, need not grant the request.[2]  Citing legislative materials, such as sponsor’s memos, letters and statements of support, and bill jackets may increase an attorney’s chances of moving a court to take judicial notice of a legislative fact.[3]  After all, if the legislature cites the fact as part of its justification in enacting a law, and the court is required to enforce the law, surely the fact is compelling.  Indeed, some courts have in fact cited the legislature’s reliance on certain facts when taking judicial notice of legislative facts or relying on them for decision making.[4]

Continue reading “Trickle-Down Empowerment: How The New York State Legislature Can Empower Attorneys Who Advocate For Victims of Domestic Violence by Incorporating Social Science Findings When Justifying New Legislation”