Prosecutorial Misconduct

Prosecutorial Misconduct.—When a conviction is obtained by the presentation of testimony known to the prosecuting authorities to have been perjured, due process is violated. The clause "cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance . . . is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation."1032

The above quoted language was dictum in the case in which it was set forth,1033 but the principle enunciated has required state officials to controvert allegations that knowingly false testimony had been used to convict1034 and has upset convictions found to have been so procured.1035 Extending the principle, the Court in Miller v. Pate1036 overturned a conviction obtained after the prosecution had represented to the jury that a pair of men's shorts found near the scene of a sex attack belonged to the defendant and that they were stained with blood; the defendant showed in a habeas corpus proceeding that no evidence connected him with the shorts and furthermore that the shorts were not in fact bloodstained, and that the prosecution had known these facts.

This line of reasoning has even resulted in the disclosure to the defense of information not relied upon by the prosecution during trial.1037 In Brady v. Maryland,1038 the Court 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 that case, the prosecution had suppressed an extrajudicial confession of defendant's accomplice that he had actually committed the murder.1039 "The heart of the holding in Brady is the prosecution's suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence's favorable character for the defense, and (c) the materiality of the evidence."1040

1032 Mooney v. Holahan, 294 U.S. 103, 112 (1935).

1033 The Court dismissed the petitioner's suit on the ground that adequate process existed in the state courts to correct any wrong and that petitioner had not availed himself of it. A state court subsequently appraised the evidence and ruled that the allegations had not been proved in Ex parte Mooney, 10 Cal. 2d 1, 73 P.2d 554 (1937), cert. denied 305 U.S. 598 (1938).

1034 Pyle v. Kansas, 317 U.S. 213 (1942); White v. Ragen, 324 U.S. 760 (1945). See also New York ex rel. Whitman v. Wilson, 318 U.S. 688 (1943); Ex parte Hawk, 321 U.S. 114 (1914). But see Hysler v. Florida, 315 U.S. 411 (1942); Lisenba v. California, 314 U.S. 219 (1941).

1035 Napue v. Illinois, 360 U.S. 264 (1959); Alcorta v. Texas, 355 U.S. 28 (1957). In the former case, the principal prosecution witness was defendant's accomplice, and he testified that he had received no promise of consideration in return for his testimony. In fact, the prosecutor had promised him consideration, but did nothing to correct the false testimony. See also Giglio v. United States, 405 U.S. 150 (1972) (same). In the latter case, involving a husband's killing of his wife because of her infidelity, a prosecution witness testified at the habeas corpus hearing that he told the prosecutor that he had been intimate with the woman but that the prosecutor had told him to volunteer nothing of it, so that at trial he had testified his relationship with the woman was wholly casual. In both cases, the Court deemed it irrelevant that the false testimony had gone only to the credibility of the witness rather than to the defendant's guilt. What if the prosecution should become aware of the perjury of a prosecution witness following the trial? Cf. Durley v. Mayo, 351 U.S. 277 (1956). But see Smith v. Phillips, 455 U.S. 209, 218-21 (1982) (prosecutor's failure to disclose that one of the jurors has a job application pending before him, thus rendering him possibly partial, does not go to fairness of the trial and due process is not violated).

1036 386 U.S. 1 (1967).

1037 It should be noted that the obligations discussed below regarding a prosecutor's obligation to provide information to a defendant do not appear to apply where the defendant has agreed to plead guilty, even though such information might have affected a defendant's decision as to whether to accept a plea bargain. United States v. Ruiz, 122 S. Ct. 2450 (2002). Nor has it been settled whether inconsistent prosecutorial theories in separate cases can be the basis for a due process challenge. Bradshaw v. Stumpf, 545 U.S. 175 (2005) (Court remanded case to determine whether death sentence was based on defendant’s role as shooter because subsequent prosecution against an accomplice proceeded on the theory that, based on new evidence, the accomplice had done the shooting).

1038 373 U.S. 83, 87 (1963). In Jencks v. United States, 353 U.S. 657 (1957), in the exercise of its supervisory power over the federal courts, the Court held that the defense was entitled to obtain, for impeachment purposes, statements which had been made to government agents by government witnesses during the investigatory stage. Cf. Scales v. United States, 367 U.S. 203, 257-58 (1961). A subsequent statute modified but largely codified the decision and was upheld by the Court. Palermo v. United States, 360 U.S. 343 (1959), sustaining 18 U.S.C. § 3500.

1039 While the state court in Brady had allowed a partial retrial so that the accomplice's confession could be considered in the jury's determination of whether to impose capital punishment, it had declined to order a retrial of the guilt phase of the trial. The defendant's appeal of this latter decisions was rejected, as the issue, as seen by the Court, was whether the state court could have excluded the defendant's confessed participation in the crime on evidentiary grounds, as the defendant had confessed to facts sufficient to establish grounds for the crime charged.

1040 Moore v. Illinois 408 U.S. 786, 794-95 (1972) (finding Brady inapplicable because the evidence withheld was not material and not exculpatory). Joining Justice Blackmun's opinion were Justices Brennan, White, Rehnquist, and Chief Justice Burger. Dissenting were Justices Douglas, Stewart, Marshall, and Powell. Id. at 800. See also Wood v. Bartholomew, 516 U.S. 1 (1995) (per curiam) (holding no Due Process violation where prosecutor's failure to disclose the result of a witness' poly-graph test would not have affected the outcome of the case). The beginning in Brady toward a general requirement of criminal discovery was not carried forward. See the division of opinion in Giles v. Maryland, 386 U.S. 66 (1967). In Cone v. Bell, 129 S. Ct. 1769, 1784, 1786 (2009), the Court emphasized the distinction between the materiality of the evidence with respect to guilt and the materiality of the evidence with respect to punishment, and concluded that, although the evidence that had been suppressed was not material to the defendant's conviction, the lower courts had erred in failing to assess its effect with respect to the defendant's capital sentence.

In United States v. Agurs,1041 the Court summarized and somewhat expanded the prosecutor's obligation to disclose to the defense exculpatory evidence in his possession, even in the absence of a request, or upon a general request, by defendant. First, as noted, if the prosecutor knew or should have known that testimony given to the trial was perjured, the conviction must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.1042 Second, as established in Brady, if the defense specifically requested certain evidence and the prosecutor withheld it,* the conviction must be set aside if the suppressed evidence might have affected the outcome of the trial.1043 Third (the new law created in Agurs), if the defense did not make a request at all, or simply asked for "all Brady material" or for "anything exculpatory," a duty resides in the prosecution to reveal to the defense obviously exculpatory evidence; if the prosecutor does not reveal it, reversal of a conviction may be required, but only if the undisclosed evidence creates a reasonable doubt as to the defendant's guilt.1044

1041 427 U.S. 97 (1976).

1042 427 U.S. at 103-04. This situation is the Mooney v. Holohan type of case.

* A statement by the prosecution that it will “open its files” to the defendant appears to relieve the defendant of his obligation to request such materials. See Strickler v. Greene, 527 U.S. 263, 283-84 (1999); Banks v. Dretke, 540 U.S. 668, 693 (2004).

1043 427 U.S. at 104-06. This the Brady situation.

1044 427 U.S. at 106-14. This was the Agurs fact situation. Similarly, there is no obligation that law enforcement officials preserve breath samples which have been utilized in a breath-analysis test; the Agurs materiality standard is met only by evidence which "possess[es] an exculpatory value . . . apparent before [it] was destroyed, and also [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." California v. Trombetta, 467 U.S. 479, 489 (1984). See also Arizona v. Youngblood, 488 U.S. 51 (1988) (negligent failure to refrigerate and otherwise preserve potentially exculpatory physical evidence from sexual assault kit does not violate a defendant's due process rights absent bad faith on the part of the police). Illinois v. Fisher, 540 U.S. 544 (2004) (per curiam) (the routine destruction of a bag of cocaine 11 years after an arrest, the defendant having fled prosecution during the intervening years, does not violate due process).

This tripartite formulation, however, suffered from two apparent defects. First, it added a new level of complexity to a Brady inquiry by requiring a reviewing court to establish the appropriate level of materiality by classifying the situation under which the exculpating information was withheld. Secondly, it was not clear, if the fairness of the trial was at issue, why the circumstances of the failure to disclose should affect the evaluation of the impact that such information would have had on the trial. Ultimately, the Court addressed these issues in United States v. Bagley1045 .

In Bagley, the Court established a uniform test for materiality, choosing the most stringent requirement that evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different.1046 This materiality standard, found in contexts outside of Brady inquiries,1047 is applied not only to exculpatory material, but also to material which would be relevant to the impeachment of witnesses.1048 Thus, where inconsistent earlier statements by a witness to an abduction were not disclosed, the Court weighed the specific effect that impeachment of the witness would have had on establishing the required elements of the crime and of the punishment, finally concluding that there was no reasonable probability that the jury would have reached a different result.1049

The Supreme Court has also held that “Brady suppression occurs when the government fails to turn over even evidence that is ‘known only to police investigators and not to the prosecutor.’ . . . ‘[T]he individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government’s behalf in the case, including the police.’”45

1045 473 U.S. 667 (1985).

1046 473 U.S. at 682.

1047 See United States v. Malenzuela-Bernal, 458 U.S. 858 (1982) (testimony made unavailable by Government deportation of witnesses); Strickland v. Washington, 466 U.S. 668 (1984) (incompetence of counsel).

1048 473 U.S. at 676-77.

1049 Strickler v. Greene, 527 U.S. 263 (1999). See also Banks v. Dretke, 540 U.S. 668, 692-94 (2004) (failure of prosecution to correct perjured statement that witness had not been coached and to disclose that separate witness was a paid government informant established prejudice for purposes of habeas corpus review).

45 Youngblood v. West Virginia, 547 U.S. 867, 869-70 (2006) (per curiam), quoting Kyles v. Whitley, 514 U.S. 419, 438, 437 (1995)

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