I'm wondering when exactly it becomes a necessary Brady disclosure when we're having trouble tracking down a witness. Let's say a trial is set a month out, and we think defense counsel might take it to trial. So we call our key witness/victim, and the number is disconnected. Then we try other avenues as it gets closer to trial. Do we disclose this problem right away? Or when we've finally given up on tracking down our witness? Obviously such a disclosure would strengthen the resolve of the defense when it's possible they still might take a plea.
I’ve never felt like inability to locate a witness counts as exculpatory, mitigating, or impeachment evidence or information that tends to negate the guilt of a defendant.
There’s no doubt it changes whether or not a defendant wants to challenge you at trial. But I don’t think it counts as Brady no matter how you slice it and I’m not convinced you’re required under 39.14 to reveal it for any reason either.
There is a more than passing chance that a missing witness either FORGOT about the trial or is actively AVOIDING having to testify, and either situation has Morton implications, if not also Brady.
If the witness is forgetful then that fact could be, or at least lead to, an impeachment argument regarding his ability to accurately recall details of important events.
Active avoidance by the witness could be the result of a new crime like Tampering or Retaliation which, if provable, provides a path to hearsay admissibility via Forfeiture by Wrongdoing.
That said, avoidance could also be exculpatory, mitigating, and/or impeachment. It is a lot easier to make false or misleading out-of-court accusations than to do the same under oath and while subject to cross examination. It would be a strong incentive to avoid service of subpoena if testifying would force the witness to choose between Perjury and exposing a prior False Report to a Peace Officer. Testifying could also reveal the witness's own participation, complicity, or provocation of the offense.
Difficulty contacting the witness could therefore trigger the 39.14(h) automatic affirmative duty to notify, even without timely request by the defendant required by 39.14(a).
I've heard it said that "if you hope the defense doesn't know something, you should probably disclose" . . . but I'm not sure if that is true because I'm only a layman.
There was plenty of case law pre 39.14 that said witness unavailability was not Brady. I don't see how the analysis is any different now. I have heard of the "Oh Sh$T" test for Brady. If it makes you say that even for a second turn it over. But just because something makes your job harder or the defense attorney's job easier that does not make it mitigating, exculpatory, or impeaching.
Maybe the day before trial I'm losing my voice. Maybe I'm going to let a novice prosecutor take a witness and they are so nervous they might tank. Maybe my witness has never testified before and is just as nervous. There are a million factors that can hurt or help either side that have literally zero to do the facts of the case and the fact that I can't find a witness, in and of itself, is one of them.
The state is not required under Brady to turn over evidence that is only "generally useful" to the defense. Iness v. State, 606 S.W.2d 306, 311 (Tex. Crim. App. 1980). Neither a prosecutor's hoarse voice or a nervous witness are exculpatory or impeachment information. Neither is the simple inability to locate a witness.
However, if you get the idea that a witness is ACTIVELY AVOIDING testimony, that very well may be exculpatory or impeachment information, for the reasons listed above.
In sanctioning prosecutor William Allen Schultz, the state bar concluded that Texas Disciplinary Rules Professional Conduct Rule 3.09(d) regarding exculpatory evidence is broader than Brady. See: Schultz v. Comm’n for Lawyer Discipline of the State Bar of Texas (Board of Disciplinary Appeals No. 55649) December 17, 2015.
Furthermore, violation of one or more of the Texas Disciplinary Rules of Professional Conduct is defined as Professional Misconduct under Rule 1.06(W)(1) of the Texas Rules of Disciplinary Procedure and failure to disclose evidence may be grounds for disbarment of a prosecutor. See: Comm’n for Lawyer Discipline v. Sebesta (Evidentiary Panel District No. 08-2 State Bar of Texas #201400539) June 11, 2015, affm’d in Board of Disciplinary Appeals No. 56406, February 8, 2016. Whether a prosecutor deliberately withholds evidence or negligently fails to disclose it is irrelevant: "inadvertent nondisclosure has the same impact on the fairness of the proceedings as deliberate concealment." Strickler v. Greene, 527 U.S. 263, 288 (1999).
Given the stakes, one could be forgiven for erring on the side of caution when deciding between inability to locate vs. active avoidance.
edit: can't seem to do the forum codes for the italics properlyThis message has been edited. Last edited by: AlexLayman,
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