In Brady v. Maryland,[1] the U.S. Supreme Court held that an accused has a constitutional due process right to the disclosure of evidence that is both favorable and material to guilt or punishment. A prosecutor's Brady obligation includes the disclosure of not just exculpatory evidence, but impeachment material as well.[2] The goal of Brady is to ensure that "criminal trials are fair" and that the proceedings "comport with standards of justice."
The purpose of this article is to urge the Bar to press for the adoption of a local rule in the U.S. District Courts for the Southern and Eastern Districts of New York setting forth the scope and timing of Brady disclosure. Such a rule would both define what constitutes Brady material and provide a time for its production to the defense. Other district courts within the Second Circuit — the Northern District of New York, the District of Connecticut and the District of Vermont — as well as a number of judicial districts throughout the country have adopted a local rule relating to Brady disclosure.
Assuring Consistency
A local rule in the Southern and Eastern districts would assure consistency among the judges in interpreting what constitutes Brady material and when it should be produced to the defense. Presently, there are varying opinions by judges in the two districts, as well as in the Second Circuit, relating to this subject.
As the Southern District judge stated in United States v. Lino,[3] "This area [the timing of disclosure to the defense] is not a settled one among the district courts, owing in part to the lack of an authoritative statement from the Circuit." So too, there is no definitive opinion setting forth what constitutes Brady material.
One thing, however, is agreed upon: Brady material cannot be disclosed on the eve of trial, but again there is no agreement as to the fixed time for disclosure.[4]
Opinions on these subjects typically arise post-conviction and the Court of Appeals is rarely, if ever, called upon before trial to define a prosecutor's Brady obligation. The post conviction cases are fact specific, focusing on the effect that suppression, or delayed disclosure, had on the verdict. This ignores the use which experienced defense counsel may make of the disclosed Brady material pre-verdict. Counsel often use Brady material as leads to discover other information and admissible proof.
As far back as 1974, the Second Circuit held in Grant v. Alldredge,[5] a post-conviction case, that the U.S. Constitution required the government to produce Brady material sufficiently in advance of trial so that the defense could make "full exploration and exploitation" of the material. Grant declined to give a more specific time frame for Brady disclosure.
More recently, in denying a petition for rehearing in United States v. Avellino,[6] the court stated that it expressed "no view regarding when the government's obligation to disclose [Brady material] might arise." To the same effect is the recently decided case In re United States (Coppa),[7] discussed below.
Eastern District Rulings
The holdings of the Eastern District court in the cases of United States v. Shvarts[8] and United States v. Coppa illustrate the difficulties caused by the absence of a local rule.
In both Shvarts and Coppa, the court held that the government was constitutionally required to disclose to the defense, on demand, all exculpatory and impeachment material. These orders were unique within the Second Circuit. The government offered to disclose immediately all exculpatory evidence, but not impeachment material relating to its potential witnesses. When this position was rejected, the government sought a writ of mandamus in the Court of Appeals solely on one issue — whether the Constitution required disclosure of impeachment material upon demand of defense counsel.
On Oct. 5, 2001, the Second Circuit decided In re United States (Coppa) and granted the writ of mandamus. The court's opinion went beyond the narrow issue raised by the government and instead redefined the prosecutor's Brady obligation. The court held that the scope of the prosecutor's pretrial constitutional duties — and the accused's constitutional rights — are defined by the appellate standard, with the modification that this was to be a pre-verdict "prediction," that is the likely effect suppression of Brady material would have on the outcome of the trial. The court stated that:
The nature of the prosecutor's constitutional duty to disclose has shifted from (a) an evidentiary test of materiality that can be applied rather easily to any item of evidence (would this evidence have some tendency to undermine proof of guilt?) to (b) a result-affecting test that obliges a prosecutor to make a prediction as to whether a reasonable probability will exist that the outcome would have been different if disclosure had been made.
The importation of the appellate standard into the pretrial phase authorizes the prosecutor, under the authority of the Constitution, to withhold Brady information if the prosecutor, in his or her judgment, either before or during trial, makes a "prediction" that disclosure would not affect the outcome of the case.
The court did not undertake to define the kinds of material that constitute Brady information but left that to the prosecutor. As for the timing of disclosure to the defense, this arises when the prosecutor makes his or her prediction that the material is result affecting and the defense is able to make effective use of the material.
As United States v. Avellino teaches, the court has never set an exact time for disclosure. So too, in Coppa the court stated, "We have never interpreted due process of law as requiring more than that Brady material must be disclosed in time for its effective use at trial."
Disclosure, it held, must never be made on the eve of trial. The conclusion is that the prosecutor is authorized to make a prediction as to the kinds of material which constitutes Brady information and the timing of disclosure, except as noted, for the prohibition that it not be on the eve of trial.
'Coppa' Criticized
Coppa has been severely criticized by members of the Bar[9] becausedefense attorneys believe it seriously hampers the prospects for rendering effective assistance of counsel.[10]
Defense counsel and the prosecutor must know what a judicial officer believes falls within Brady and the specific time for the disclosure of such material. Justice cannot be accomplished when the decisions relating to Brady depend on the "luck of the draw" as to the views of the particular prosecutor and judge assigned to the case.
One must ask why the panel in Coppa placed so much confidence in the judgment of a prosecutor, both as to the contents of Brady and the time when it must be disclosed?
Despite comments to the contrary, prosecutors in the real world are adversaries.[11] Reported cases are legion detailing egregious instances of suppressed Brady material, often leading to serious miscarriages of justice.
For example, in 1994, then-Eastern District Judge Reena Raggi sanctioned the U.S. Attorney's Office for the Eastern District (the office which obtained the writ of mandamus in Coppa) with a public reprimand for its continuing failure to honor its Brady obligation, writing: "Time after time after time the government shows up in the courtrooms of this court . . . failing to turn over information it's obliged to turn over by law under either Rule 16, Brady or Giglio."[12]
The Court of Appeals perhaps took note of the continuing criticism that Coppa generated, for on July 17, 2002, another Second Circuit panel decided United States v. Gil,[13] finding a Brady violation arising out of the prosecutor's untimely disclosure. The Gil opinion is important for what it did not say. The prosecutor was not given the right, as in Coppa, both to make a prediction as to what constitutes Brady material and then to decide when such material should be disclosed, applying the outcome-determinative standard. The Gil panel only cited Coppa for the accepted principle that Brady material may not be turned over on the eve of trial.
Whatever the vitality of Coppa may be, it must be noted that the opinion explicitly declined to address "the scope of a trial judge's discretion to order pretrial disclosures as a matter of sound case management." Thus, Coppa did not prohibit the judge from having a rule that both defines the type of material which falls within Brady and setting the timing for the disclosure of such material, this as a matter of discretion, as opposed to constitutional mandate. However, if a judge does not have a rule which defines what constitutes Brady material and sets a time for disclosure, Coppa controls.
Conclusion
The most effective way to ensure that an accused's rights to due process and a fair trial are guaranteed is to do so by a local rule, rather than by a prosecutor's "prediction." This rule would define what types of material fall within Brady and set forth a timetable for disclosure. The district judge would have the authority to make such modifications as required by the particular facts of a case.
The U.S. District Court for the District of Massachusetts adopted such a local rule, which became effective Dec. 1, 1998. The rule, available on Westlaw and the Boston Bar Association's Web site, followed a detailed report by an advisory committee, whose many members consisted of highly regarded and experienced judges, professors, prosecutors and defense lawyers.
The report discussed the critical need for uniformity and the instances where lack of guidance led to both suppression of evidence and the resultant negative impact on the effective assistance of counsel and right to a fair trial. The only recommended addition to the Massachusetts rule would be to mandate the immediate production of the defined Brady impeachment material relating to witnesses who present a special need for early disclosure — protected potential government witnesses or any other witness where disclosure would present no potential risk of harm.[14]
A local rule for the judges of the Southern and Eastern districts defining the types of material falling within Brady and requiring the prosecution to produce such material on a fixed timetable is long overdue.
Jay Goldberg is a solo practitioner in Manhattan.
FootNotes:
[1] 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
[2] United States v. Middlemiss, 217 F.3d 112, 123 (2d Cir. 2000).
[3] 2001 WL 8356, *14 (S.D.N.Y. 2001).
[4] Leka v. Portuondo, 257 F.3d 89 (2d Cir. 2001).
[5] 498 F.2d 376, 382 (2d Cir. 1974).
[6] 136 F.3d 249, 262 (2d Cir. 1998).
[7] 267 F.3d 132 (2d Cir. 2001).
[8] 90 F. Supp.2d 219 (E.D.N.Y. 2000).
[9] See, e.g., Abramovsky, "Pretrial 'Brady' Disclosure in New York," NYLJ, Nov. 30, 2001; Abramovsky, "Will the New York Courts Adopt 'Coppa'?," NYLJ, Dec. 11, 2001.
[10] See, e.g.,id; Defeis and Patterson, "No Harm, No Foul: Second Circuit Redefines 'Brady,'" NYLJ, Jan.31, 2002.
[11] See United States v. Deutsch, 373 F. Supp. 289 (S.D.N.Y. 1974).
[12] United States v. Prince, 1994 WL 99231, *4 (E.D.N.Y. 1994).
[13] 297 F.3d 93 (2d Cir. 2002).
[14] Individuals in the Witness Protection Program who have extensive criminal records and seek consideration from the government present particular problems, requiring early Brady disclosure. As the Court of Appeals for the Ninth Circuit wrote, informers are "likely to say and do almost anything to get . . . out of trouble . . . inclu[ding] . . . lying, committing perjury, manufacturing . . . evidence, soliciting others to corroborate their lies with more lies. . . . Many are outright conscienceless sociopaths to whom 'truth' is a wholly meaningless concept." Trott, U.S. Dep't of Justice, Prosecution of Public Corruption Cases, at 117-18 (Feb. 1988). See also United States. v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993).
Date Received: June 13, 2003