More than 50 years ago, the Supreme Court ruled in Brady v. Maryland that prosecutors must hand over evidence to defendants that could help them at trial. Yet “Brady violations,” as they’re known — instances when the prosecution doesn’t turn over this material — continue to drive wrongful convictions. Thirty-eight percent of the 234 exonerations in New York state have involved withheld Brady material, according to the National Registry of Exonerations.
The link between wrongful convictions and Brady violations prompted the New York court system to release a new rule this week. Beginning in January, judges will issue an order reminding prosecutors of their obligation to turn over “information favorable to the defense.” Some judges already routinely issue such orders, but this will require all judges to do so in every criminal case.
Brady material is a subset of the larger set of materials and evidence that prosecutors must turn over to the defense in the course of a case. New York state laws regarding discovery — the broader practice of turning over to a defendant all the documents and evidence against him — are some of the most restrictive in the nation, allowing prosecutors to withhold witness names and statements and police reports until just before trial, The Marshall Project reported this summer, in collaboration with The New York Times. Because so few defendants ever go to trial — some 95 percent of convictions are secured by plea — the law effectively allows this material to be withheld forever.
This may continue to be an issue under the new standing orders. In the orders, “timely” disclosure of Brady material is defined as 30 days before trial in felony cases — long after plea negotiations have taken place in many instances. As a result, “prosecutors will bargain without having ever to show their cards, or even a single card, until a trial which will most likely never happen,” defense attorney Bill Shields wrote in a public comment to the courts.
The new rule doesn’t change existing law, but is meant to “educate inexperienced prosecutors and defense attorneys and remind experienced ones” about their obligations, the courts said in a statement. The law is vague on Brady obligations, saying only that prosecutors must turn over “anything required to be disclosed…pursuant to the constitution of this state or of the United States,” and gives prosecutors discretion to decide what is “favorable” and whether to turn it over. The new order specifies the types of evidence that must be disclosed, including any favors or promises made to witnesses in exchange for testimony.
The orders also, for the first time, provide a mechanism for judges to sanction prosecutors who don’t comply. If they withhold Brady material in a “willful and deliberate” way — an almost impossibly high bar, legally speaking — they can be held in contempt.
The orders originated with a task force convened by the state’s chief judge to address the causes of wrongful convictions. Both the District Attorney’s Association and defense groups like Legal Aid served on the task force, so the resulting standing orders are widely seen as a compromise and have been praised by both groups. “I see them as a step in the right direction,” says Tina Luongo, Attorney-In-Charge of Legal Aid’s Criminal Defense Practice. “But unless you couple this with discovery reform, you don’t get the full force.”