Felony to Withhold Brady Material

By Amanda Defeo, J.D. Class of 2017 Touro Law Review Senior Staff Member

Earlier this year, California’s Democratic Assemblywoman, Patty Lopez, proposed a Bill that would make it a crime “for a prosecutor to intentionally and in bad faith alter, modify, or withhold any . . . relevant exculpatory material or information, knowing that it is relevant and material to the outcome of the case.”[1] Prior to this Bill, Section 141 of the California Penal Code made it merely a misdemeanor to conceal or alter any relevant evidence.[2] However, on September 30, 2016, California’s governor making it a felony, punishable by imprisonment for up to three years, approved the bill.[3] The enactment of this new Bill has ignited a national discussion regarding the ethical duties of a prosecutor to disclose relevant exculpatory evidence.[4] It raises the question of whether other states, such as New York, should adopt this rule.

Exculpatory evidence is defined as evidence which tends to justify, excuse, or clear the defendant from alleged fault or guilt.[5] The landmark case, Brady v. California, established the rule of law which requires a prosecutor to disclose all exculpatory evidence that is material to the guilt of the defendant.[6] This evidence, known as Brady material, must be disclosed even if the defense has not requested its discovery.[7] Suppression of Brady material by the prosecution violates the defendant’s due process rights.[8] The amendment to California’s Penal Code expands the scope of the Brady rule and makes any violation of the rule, punishable criminally.[9]

California’s new law was enacted in response to allegations of prosecutorial misconduct during the capital murder trial of Scott Dekraai.[10] Public defender, Scott Sanders, discovered astounding evidence that Orange County District Attorney’s office knew about illegal activity occurring in the Orange County Jail. Specifically, Sanders alleged the prosecution was aware that the Orange County prison’s special handling unit was purposely placing jail informants in cells adjacent to criminal defendants in order to obtain incriminating statements from those defendants.[11] Evidence later confirmed that this activity was occurring not only in Dekraai’s case but also several other high-profile murder cases.[12] This arrangement is a violation of the defendant’s sixth amendment right under Massiah v. United States, which prohibits informants from coercing statements from defendants who are already represented by counsel.[13] Sanders filed a series of motions which alleged that the prosecution knew about, and failed to disclose this crucial information to the court and defense counsel.[14]

Superior Court Judge Thomas Goethals granted the recusal motion to remove the entire Orange County District Attorney’s office from the case for their “chronic failure” to comply with discovery orders to turn over evidence.[15] Goethals held that the District Attorney Tony Rackauckas had a clear conflict of interest which “stems from his loyalty to his law enforcement partners at the expense of his other constitutional and statutory obligations.”[16] The ruling, consistent with the Brady rule, exemplified the duty of a prosecutor to adhere to his dual interests as an advocate and also as a law enforcement official.[17]

In light of the happenings in California, the ABA journal reported that multiple defendants have received new trials and some of the results have been favorable to the defendant. Sanders said, “[t]he right to a fair trial is only meaningful when those who prosecute and investigate crimes are committed to both honoring defendants’ constitutional rights and disclosing evidence that is favorable and material, as mandated by state and federal law.”[18] The role of a prosecutor is central to our justice system.[19] New York ‘s model rules of professional responsibility exemplify that a prosecutor has a distinct role from an ordinary attorney by imposing separate rules that a prosecutor must follow.[20] Prosecutors are entrusted with the duty to seek justice for both their client and society as a whole.[21] As a result of this obligation to uphold the law, prosecutors must be held to more stringent ethical obligations than other lawyers.

[1] Assembly Bill No. 1909

[2] Assembly Bill No. 1909

[3] Section 1 §141 Penal Code

[4] Id.

[5] Black’s Law Dictionary 566 (6th ed. 1990).

[6] Brady v. Maryland, 373 U.S. 87 (1963)

[7] Id.

[8] Id.

[9] Assembly Bill No. 1909

[10] Lorelei Lard, California Makes it a Felony for Prosecutors to Withhold or Alter Exculpatory Evidence, ABA J. (Oct. 5, 2016), http://reason.com/blog/2016/08/16/california-bill-would-make-it-a-felony-f

[11] Lorelei Lard, California Makes it a Felony for Prosecutors to Withhold or Alter Exculpatory Evidence, ABA J. (Oct. 5, 2016), http://reason.com/blog/2016/08/16/california-bill-would-make-it-a-felony-f.

[12] People v. Dekraai, 2015 WL 4384450 (2015).

[13] 377 U.S. 201 (1964).

[14] People v. Dekraai, 2015 WL 4384450 (2015).

[15] Id.

[16] Id. at 6.

[17] Lisa M. Kurcias, Prosecutors Duty to Disclose Exculpatory Evidence, 69 Fordham L. Rev. 1205 (2000).

[18] People v. Dekraai, 2015 WL 4384450 (2015)

[19] Lisa M. Kurcias, Prosecutors Duty to Disclose Exculpatory Evidence, 69 Fordham L. Rev. 1205 (2000).

[20] Id.

[21] Id.


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