When a prosecutor withholds favorable evidence from the defense, Brady material is implicated, and a defendant’s rights to due process under the U.S. Constitution are violated. The prosecution’s job is not merely to “win” by getting a conviction, but to seek justice. Defendants are entitled to all evidence that would help their case.
Brady issues typically arise when a prosecutor gets tunnel vision because he or she is so convinced the defendant is guilty of the crime. This tunnel vision leads the prosecutor to ignore or hide evidence that could potentially prove the defendant’s innocence because the prosecutor does not want the evidence to get in the way of a conviction. An egregious example of Brady material arising in an innocence case is in the case of Michael Hanline, who has served more than thirty years for a murder he did not commit.
Brady issues present a difficult problem for the wrongfully convicted because they generally require a great deal of post-conviction investigation – and sometimes, mere luck – to find the evidence suppressed by the prosecution. By its nature, Brady material is hidden from the defense, and an inmate serving a prison sentence has next to no chance of discovering it from the confines of his or her jail cell.
One issue is whether Brady applies to the post-conviction arena as well. That is, what happens if evidence of innocence is discovered after the conviction? Is the prosecution obligated to turn over such evidence or even inform the inmate or their counsel?
From a legal perspective, the answer appears to be no. As noted by one commentator, a recent U.S. Supreme Court case, District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52 (U.S. 2009), held that defendants have fewer rights after conviction than pre-conviction. Osborne, convicted of sexual assault and other crimes, filed a lawsuit alleging that he had a Constitutional due process right to DNA testing at his own expense. The Ninth Circuit had also previously held that Osborne had a right to exculpatory material under Brady. The Court disagreed with both assertions and held that the Ninth Circuit “erred in extending the Brady right of pretrial disclosure to the postconviction context.”
But is there an ethical obligation? According to Rule 3.8(g) of the ABA’s Model Rules of Professional Conduct, when a prosecutor “knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted,” he or she must disclose the information to a court and to the defendant. However, the ABA Model Rules are only guidelines and states are not required to adopt the Model Rules.