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The U.S. Department of Justice is taking on the Tennessee Supreme Court’s Office of Professional Responsibility over a 55-year-old U.S. Supreme Court decision.


The controversy is not about just any decision, it’s about the landmark decision of Brady v. Maryland. The U.S. Supreme Court held in Brady that a prosecutor who withholds material evidence—evidence capable of changing the outcome of the case—violates the U.S. Constitution.


 The Tennessee Board published an ethics opinion earlier this year announcing that prosecutors have a higher ethical obligation to divulge certain kinds of evidence than what’s legally required of them under the Brady ruling and the Constitution.


 Although the U.S. Supreme set the framework for disclosing favorable evidence the Court did not provide guidance to the states and federal government relating to evaluating what evidence needs to be disclosed and the timelines for disclosing the evidence. The rule in Tennessee seeks to provide guidance.


 The proposed rule in Tennessee provides that prosecutors must hand over all evidence that is in some way favorable to a defendant, regardless if they believe it would affect the outcome of the case. Prosecutors are required to turn those records over early enough for the information to be used effectively by the defense, including guilty-plea negotiations. That is especially relevant now that about 95 percent of criminal cases end in a guilty-plea.


 All fifty states have a rule, statute or other type of authority concerning a prosecutor’s obligation to disclose information favorable to the defense. However, in most states what constitutes material evidence is left to prosecutors to determine. With no guidance from the Courts, or respective legislatures, it is troubling that prosecutors are left solely to decide materiality.

 The confusion is amplified by the fact that prosecutors are confusing the test for a Brady violation—favorable and material—with the standard for disclosure, a standard that is not entirely clear. Prosecutors should provide all favorable evidence to the defense and the defense should decide what is material. As it stands in most states, prosecutors, not defense attorneys, are deciding what evidence might make a difference in the outcome.


 That doesn’t make sense and some states, in addition to Tennessee, are doing something about it.


 The New York Courts recently adopted a rule requiring judges to issue an order in criminal cases reminding prosecutors of their Brady obligations. The order does not change what prosecutors must turn over, but it would for, the first time allow, judges to hold prosecutors in contempt who willfully violate the obligation.


 Just this month the U.S. Supreme Court decided a Brady case. The nuances of Brady were on full display. Justice Stephen Breyer, a left leaning justice, wrote the court’s opinion. Breyer found that the evidence withheld was favorable to a couple of defendants accused in the brutal gang rape and murder of a woman in Washington D.C. However, Breyer found that when the evidence that was withheld was considered along with the rest of the evidence before the jury “it is too little, too weak, or too distant from” the other evidence to have made a difference.


 In a friend of the court brief filed in a case decided by the U.S. Supreme Court last year over 30 former federal and state prosecutors argued, “[z]ealously protecting Brady is especially important at a time when . . . public confidence in the criminal justice system is declining.” The former prosecutors shared their support for the premise that “a prosecutor’s duty is to seek justice, not merely to convict.”


 Prosecutors withholding favorable information because they believe it won’t make a difference in the case will do nothing to improve public confidence in the criminal justice system.


— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino