Saturday, July 7, 2012
The Brady Bunch: 6th Circuit Addresses Whether 3 Types of Evidence Needed To Be Disclosed Under Brady
Pursuant to the Supreme Court's opinion in Brady v. Maryland, 373 U.S. 83 (1963), a new trial is warranted when the prosecution fails to timely disclose to the defendant material exculpatory evidence. Moreover, pursuant to the Supreme Court's opinion in Giglio v. United States, 405 U.S. 150 (1972), Brady covers material impeachment evidence. But does Brady cover (1) opinion evidence under Federal Rule of Evidence 608(a); (2) internal memoranda containing unsubstantiated allegations; or (3) fact-based conclusions under Federal Rule of Evidence 608(b)? All of these issues were addressed by the recent opinion of the Sixth Circuit in United States v. Taylor, 2012 WL 2366243 (6th Cir. 2012).In Taylor,
Carl Henderson, Maurion Lewis, and Gerald Taylor were each convicted of conspiring to distribute phencyclidine (PCP). Lewis and Taylor were tried together and, in addition to the conspiracy conviction, were convicted of possessing PCP with the intent to distribute the drug. Henderson, tried separately, was found not guilty on the PCP-possession charge, but was convicted of being a felon in possession of ammunition in addition to the conspiracy conviction.
At a suppression hearing, Drug Enforcement Agency (DEA) Special Agent Lee Lucas testified as a key witness against all three defendants. After the defendants were convicted, they appealed, claiming, inter alia, that the government failed to timely disclose material impeachment evidence Agent Lucas: that he was under investigation for fabricating evidence and committing perjury in other cases.
This first raised the question of whether Brady applies to suppression hearings, with the Sixth Circuit noting that it has "never decided whether Brady protections are applicable to a suppression hearing" and that "[a] number of other circuits have also avoided answering this question." That said, the court acknowledged that "[t]he only two circuits that have actually ruled on this issue...have determined that Brady does apply to suppression hearings" and thus assumed without deciding that Brady applies to suppression hearings.
This left the question of whether three types of evidence that the government failed to timely disclose was material for Brady purposes:
Opinion evidence covered by Federal Rule of Evidence 608(a)
According to the court,
Assistant U.S. Attorney Hendrickson testified that she doubted Agent Lucas's veracity with regard to a search warrant that he executed. Her opinion of Agent Lucas's truthfulness is clearly admissible under Rule 608 Rule 608 of the Federal Rules of Evidence, but whether her opinion is the type of evidence that the government should be required to disclose under Brady is doubtful. Although each "prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police,"...asking the government to convey every undocumented negative opinion about its testifying officers would stretch the Brady requirement beyond what is practicable.
I probably agree that "asking the government to convey every undocumented negative opinion about its testifying officers would stretch the Brady requirement beyond what is practicable." But how about merely requiring disclosure of every testifying officer who is under investigation for fabricating evidence and/or committing perjury? Such a requirement certainly seems practicable, and opinion impeachment evidence seems quite valuable under such circumstances.
Internal memoranda containing unsubstantiated allegations
Additionally, according to the court,
Also questionable in terms of Brady disclosure are the allegations about Agent Lucas that were not sustained after investigation, such as the remark in paragraph ZZ of FBI Agent Winslow's memorandum that "the U.S. Attorney's Office had concerns about several investigations wherein Lucas may have lied." The government's argument that such unsubstantiated allegations are not material under Brady is compelling. See Agurs, 427 U.S. at 109 & n. 16 (commenting that the prosecution has no "obligation to communicate preliminary, challenged, or speculative information" (internal quotation marks omitted)). No court, to our knowledge, has held that Brady mandates the disclosure of internal memoranda on the basis that they contain unsubstantiated conjecture about a testifying officer.
I agree with the court's conclusion with regard to this evidence.
Fact-based conclusions covered by Federal Rule of Evidence 608(b)
Finally, the court found that
the documents containing fact-based conclusions about Agent Lucas, including the original opinion written by Judge Economus and former Assistant U.S. Attorney Gruscinski's memorandum, do not raise any logistical concern; they could have easily been gathered and turned over by the prosecution. But the government argues that extrinsic impeachment evidence is not material under Brady because it is not admissible under Rule 608(b) of the Federal Rules of Evidence. At the time of trial, Rule 608(b) provided that "[s]pecific instances of the conduct of a witness, for the purpose of attacking...the witness'[s] character for truthfulness, may not be proved by extrinsic evidence."...This court, however, has held that "information withheld by the prosecution" need only "lead directly to[ ] evidence admissible at trial" in order to be material under Brady....In addition, although the documents themselves may not be admitted as extrinsic evidence, the events that they record may still be inquired into on cross-examination.
I agree with the court's conclusion in this regard and argued as much in Inadmissible but Material? Resolving the Circuit Split After Wood. Of course, this begs the question of whether Rule 608(b) evidence is inadmissible? As the court noted, a party can use specific instances of misconduct to cross-examine a witness under Rule 608(b), but extrinsic evidence of such instances is admissible. So, is such evidence admissible or inadmissible? I'm glad that the Sixth Circuit has obviated the need to draw such a line by finding that Brady covers even inadmissible evidence if it "lead[s] directly to[ ] evidence admissible at trial...."
(While the court thus found that these fact-based conclusions should have been disclosed, "there [wa]s no 'reasonable probability' that the defense's ability to further impeach Agent Lucas would have changed any of the verdicts.").