I have a defense attorney who likes to ask the judge during his cross x of a police officer to turn over his entire file of the case to the judge for in camera inspection for Brady material. The only showing the defense makes is that future witnesses will testify different than the officer so therefore the officer must be lying and must have something in his file that is exculpatory.

I made the argument that this is frivolous and burdensome on the court, and that a plausible showing must be made to the trial court by sworn evidence and facts that what is in the file is both material and favorable to the defense. Coleman v State, 966 S.W.2d 525.

The judge shot me down and is doing the in camera inspection.

Has anybody had this happen to them? If so, how did you handle it?

Setting aside the enormous delays that would result if every judge took the same approach, don't you think that you are the one being protected by having the judge review the material for Brady evidence?

I agree that it does protect me. However, I had already reviewed the file and determined that their was no Brady material.

I thought that prosecutors are officers of the court and trial courts should take them at their word when they inform the court that no material in the file is subject to Brady disclosure.See U.S. v. Hernandez, 31 F.3d 354, 361.

In this case the case file was over 500 pages long and caused a significant delay in the trial.

All attorneys are considered officers of the court. That aside, Mr. Bradley made an excellent point.

Whether or not something is exculpatory can be a matter of opinion. You are not in a position to be perfectly objective in a case that you are prosecuting. Wouldn't you rather the judge be responsible for such a determination if it comes under scrutiny down the road?

I think every prosecutor should be put under a virtual appellate microscope, feeling the stress that accompanies a procedure that accuses you of being an unethical lawyer. You have no right to counsel and no right to reply. You must accept the ruling of the appellate court for life.

Now, would you like to have a full and complete record, including a trial court's ruling that you acted in good faith, following disclosure of all for review by the trial judge, or an incomplete record, an ambiguous intent by the prosecutor, and a grueling postconviction review that includes your testimony under oath?

In both cases, you likely will win, but let me tell you, the first scenario feels a whole lot better.

I would at the very least not allow the defense attorney to ask for this in camera inspection (since you know it's coming) in front of the jury. That way, the jury can't infer from the question that you could be hiding something exculpatory. Possibly use a Motion in Limine before the trial that any requests for in camera inspections be made ouside the presence of the jury?

Whether it's a good idea or not, I'm still curious as to whether there is ANY authority that permits such an in camera inspection by the trial judge in the absence of some good faith belief on the part of defense counsel and objective evidence that the State's file might contain Brady material.

We were recently involved in a capital case where the defense made such a request in a post-trial motion. At the time, we had over 40 banker's boxes of trial material and I'm reasonably certain the trial judge was less than excited about the prospect of sifting through that much paperwork without any reason whatsoever to expect that she might discover Brady material (we had, in fact, previously provided the defense with notice of Brady material and made that stuff available). The judge requested the defense to provide her with some authority for such an in camera inspection--they never did.

We do have an open file policy in our office so, as far as I know, we've never really had a Brady problem. Nonetheless, if the law permits this type of inspection of otherwise non-discoverable material upon an unsupported, "blind" request by defense counsel, then I suspect that, at a minimum, we're going to have a bunch of ticked off judges who perceive this to be an enormous waste of time.

The way I see it, we do have an ethical, legal, and perhaps moral obligation to make sure that our prosecutions are conducted in a fair way and that exculpatory material is disclosed. Failure to do that can result in something far worse than the reversal of a single case--it can also do serious damage to your character and integrity in the eyes of others.

There are cases like Dixon, 923 S.W.2d at 167 which are pretty lenient in requiring an in camera inspection. The constitutional test, of course, remains that described in Ritchie. There will continue to be disagreement over how to apply the test. See e.g., Page, 7 S.W.3d at 214-5. If the trial judge wants to look over a file without at least "some plausible showing" of the actual existence of material, favorable evidence, why should the prosecutor complain? But maybe the courts should recognize that prosecutors are likely to be pretty careful in disclosing this type of material due to Discip.Rule 3.09(d) to begin with. The "far worse" consequence would be disbarment of the prosecutor.

I don't know of any authority for a post-trial disclosure. Certainly, a prosecutor has an ongoing duty to turn over Brady material, but I don't know of any authority for a judge going through the State's files after trial.

This issue has come up before in postconviction writ cases, and they have uniformly held that there is no right to post trial discovery.

What about during trial? I believe the original question was dealing with a defense attorney's request during cross examination for the court to review the officer's file.

Whatever the answer is with respect to the defendant's right or the trial court's discretion, I must say that I wouldn't care for an attorney handling the request that way. Seems like it should be addressed by pretrial motion.

Kristi, I think your point may be well taken. To illustrate. During a recent trial an officer testified that a fingerprint recovered at the scene had been submitted to the Austin DPS lab for examination. The defense attorney immediately asked for production of the report concerning the analysis of the print. The report reflected that the print was essentially a "smudge" and could never successfully be matched with any other impression. Although we too have an open file policy, the attorney immediately suggested in the presence of the jury that the report contained exculpatory information (i.e. that the print might have belonged to someone other than his client). He stated that it had not been "produced" by the prosecution and accordingly moved for a mistrial. At that point, the jury was excused. Outside the presence of the jury the attorney acknowledged that he was aware of the report prior to trial, and ultimately withdrew his motion. Upon its return, the jury was merely instructed that the motion had been withdrawn.

Jurors later commented that one reason they voted for acquittal was because they felt the prosecution had not properly "prepared" the case. This was obviously one of those dreaded "speaking objections". Any objection or motion based on Brady during trial can really mess things up in a hurry in the eyes of the jurors, whether it has any legal merit or not.