EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

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Thursday, October 4, 2007

Inadmissible but material: Ohio Supreme Court reverses death sentence

In 2004, Vernon "Broadway" Brown was convicted and sentenced to death based upon the shooting deaths of Duane Roan and Tearle Toeran.  Yesterday, in State v. Brown, the Ohio Supreme Court vacated Brown's sentences and ordered a new trial based in part upon Brady evidence that the prosecutor failed to disclose to defense counsel.

Two of the three pieces of evidence that the prosecutor failed to turn over to defense counsel were police reports, which indicated that someone other than Brown had claimed responsibility for the murders of Toeran and Roan.  The Ohio Supreme Court found that the statements contained in these police reports were hearsay and thus potentially inadmissible.  Nonethless, the court found that the documents were material, even if they were not directly admissible in court.

To wit, defense counsel could have called the declarants at trial; alternatively, the statements could have been used to cross-examine a key prosecution witness who claimed that Brown killed Toeran and Roan.  I agree with this holding and argued as much in my article "Inadmissible but Material: Resolving the Circuit Split After Wood," which noted that there was a circuit split among federal courts, with some having a per se rule that inadmissible evidence can never constitute Brady evidence. 

The Brown decision provides a good explanation of why such a per se rule is nonsensical.  While evidence may be inadmissible, sometimes it can (a) directly lead to admissible evidence (defense counsel could have interviewed the declarants), or (b) itself be used at trial (to cross-examine prosecution witness(es)).  In this sense, inadmissible evidence can be highly material, and a prosecutor's failure to disclose it can form the basis of a Brady violation.

-CM

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