The Prosecutorial Ethics handbook covers plenty of ground in describing Brady material, but it sticks mostly to evidence in a murder trial when defining "favorable".

If an officer reveals that his reason for a traffic stop resulting in DWI was based on a mistake of law, is this Brady material?

In this case the officer stopped a driver for defective tail lamp. His opinion was that it was defective b/c it was not working as manufactured(one was much brighter than the other). Unfortunately, right before suppression he revealed to me that he would not be able to testify as we'd discussed earlier, that the tail lamp was not visible from 1000 feet, b/c in fact he believed it was visible.

Knowing this, I had two options. Avoid suppression by making a low ball plea offer OR dismiss.

I erred on the side of dismissing the case. I still feel I did the right thing regardless of the answer to this question, but it still leaves me wondering. The information is most definitely material in that it would obviously change the outcome of the case. But is lack of a reason for the stop considered "favorable" and is this subject to Brady?

The reason for the stop has nothing to do w/ the alleged offense. After all, the driver was most definitely guilty of DWI.

Certainly the lack of a reason for a stop is Brady, but moreso would be the fact that you got one story initially and another story later.

Is it really that simple? For evidence to be favorable it must "tend(s) to justify, excuse, or clear the defendant from alleged fault or guilt." 841 S.W.2d 399, 404. the charge is DWI, not defective tail lamp. So, despite my actions to the contrary, I'm not seeing how the fact that the officer's definition of "defective tail lamp" didn't fit the legal one does anything to justify, excuse or clear the defendant of DWI. It certainly results in the suppression of all of my evidence, but it doesn't seem to fit the definiton of 'favorable' under the three-prong test and I haven't uncovered any case on point.

I'm surprised this has drawn such slight interest.

Can you really say that evidence that will most likely change the outcome from guilty to not guilty (or, more likely, dismissal of the charge) will not "clear ... the defendant of guilt"? The evidence of the deficiency in the initial stop results, presumably, in suppression of all subsequent evidence. Assume the defendant is convicted, and later discovers this evidence (a prison writ-writer helps him) - he files a complaint with the State Bar - are you comfortable telling them that the evidence was not "favorable" to the accused even though it would have changed the outcome? Having said all that, I would make a very diligent investigation for ANY other rationale to uphold the stop - speeding, any other "warnings" on the citation, ANYTHING - if you find something, great. If you do not find anything, use this as a lesson for your officers. Also remember, probable cause for the stop does not require that the offense (tail lamp) be committed, only that the officer believe that an offense was being committed. I had a case several years ago where the P/C for the stop was a window tint violation - on a 1978 (I think) truck that was later searched and found to contain LOTS of cocaine. Motion to suppress was denied even though there was no window tint violation because of the year model of the vehicle - because the officer BELIEVED an offense had occurred. BUT, if there really is a bad stop, don't make bad law by pursuing the case. If the defendant is really a bad guy, he'll mess up again, probably sooner rather than later.

When it comes to Brady. I use Clay's definition for what is Brady and should be turned over to defense.

"When you read your file and you see something that makes you go, "OH, SH*T!" That is Brady!"

Works everytime!

obviously this information would change the outcome, but that goes to materiality and only covers one of the three prongs.

i guess the Clay approach is the best one though. i definitely said "OH SH*T!" when the officer told me he could definitely see both tail lamps from 1000'. and i would not feel comfortable nor would i want to be in the position of defending my ethics on appeal in these circumstances. perhaps that's why there appears to be no case law on the subject. no one wants to test the issue, nor did i.

I do really think it is simple. My policy has always been, disclose everything and then I have nothing to worry about. I think you did the right thing in dismissing the case.

Clay A. is a very knowledgeable man, and far be it from me to contradict his personal rule. But my personal rule has always been, if it makes you ask whether you should be disclosing it, then you should.

Having seen other experienced prosecutors either have trial problems with this issue(i.e. witness on the stand tells jury and D attorney that they did tell something significantly exculpatory to prosecutor prior to trial, and it was not reported to the defendant's counsel...it makes things go south real fast in a trial and makes the prosecutor look like a truth hider) or appellate/writ allegations of misconduct with witnesses telling post-trial counsel they revealed exculpatory information to prosecutors which was not revealed.

I've never had to testify in an allegation of failing to reveal exculpatory evidence, but me thinks I wouldn't like to. I've seen others have to do it and it didn't look like a witness chair I'd want to sit in.

There is no bright line rule. Reading the cases will help.

It does seem simple to me if an officer reveals that he had no legal reason to make an investigatory stop, or that he was mistaken in that reason, that this fact is certainly exculpatory. If he tells you that he thought something was a crime, and that the mistaken belief was the entire basis for his stop, then yes, I think you are bound to reveal that fact.

Another question I would ask is: is that something I would want know if I were the defendant (or his attorney)?

I had an officer tell me he couldn't be sure the person sitting at the defense table was the person he arrested. Jury was waiting to be seated, officer was the only witness who could id the defendant. I moved for a dismissal before the jury was brought in.

I think if an officer states he can't id a defendant or support his pc for the stop, I don't want him on the stand. 1) I don't think it's the right thing to do. 2) You know he cannot be a good witness for you. 3) It will only leave a bad taste from the experience.

exculpatory - adj. 1) something courts determine you should have disclosed after you've already withheld it. 2) to be considering the possibilities of living life as the former wife of actor Robert Culp.

[This message was edited by David Newell on 12-15-06 at .]

Real funny David. You're not gonna start making obscure references to I Spy or The Greatest American Hero, are you?

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Originally posted by David Newell:
exculpatory - adj. 1) something courts determine you should have disclosed after you've already withheld it.

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Words to live by when you are grappling with the issue of exculpability.

quote:

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Originally posted by SAProsecutor:
Real funny David. You're not gonna start making obscure references to I Spy or The Greatest American Hero, are you?

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well . . . not now.

quote:

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Originally posted by SAProsecutor:
Real funny David. You're not gonna start making obscure references to I Spy or The Greatest American Hero, are you?

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Could this thread take a discussion turn regarding women who went for the other half of I-SPY, as recently discussed in the news? Could Cosby's alleged ex's also be exculpatory since they didn't go for Culp to begin with?

Only David Newell, Scottie B or AP can hold the answer to this mystery of life...

Back in the day, I'd have been happy to find out that Connie Seleca was "exCulp-atory." And "exKatt-atory".

As for the other ladies referenced, I suppose they should just have a Coke and a smile. And some Jello pudding.

actually she was exBuck-atory having been married to gil gerrard for many years. though i'm not sure she listened to a lot of grand funk railroad, particularly not now that she's married to john tesh.


there's a motion to renew the restraining order next week, but i can't go because that would bring me within 300 hundred feet.

[This message was edited by David Newell on 12-15-06 at .]

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Originally posted by David Newell:
there's a motion to renew the restraining order next week, but i can't go because that would bring me within 300 hundred feet.

[This message was edited by David Newell on 12-15-06 at .]

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That's ok David, you know it's the THOUGHT that counts!

It's not all that incredible that an officer can't recognize a perp years after an arrest. Why couldn't the officer look at the booking photo and refresh his memory? Or, why can't the prosecutor connect the defendant to the arresting officer with the booking photo and identifiers that match from the offense report to the booking sheet?

This is not the same thing as an officer not being able to identify someone he received a rock of cocaine from 6 months ago, who he now has to identify to make an arrest.

We let an officer do an offense report to memorialize information. Same thing, sometimes, for a photo.

I apologize in advance for dragging this thread into the world of seriousness.

if the officer can't recognize the guy sitting at the table, isn't that exculpatory? what i take from gordon's comment is that he could rely upon something to refresh the officer's recollection, but he doesn't feel proceeding with the case is the right thing to do because it raises too many questions about the quality of the case, or as chris rock says about single-parenting, "sure you can do it, but you can also drive your car with your knees, that doesn't mean it's to be done."

In a USSC case, United States v. Ruiz, 122 S. Ct. 2450, the question of whether a prosecutor had a duty to disclose exculpatory material before a guilty plea was addressed. The SC said that the Due Process Clause, which is the source of a prosecutor's obligation to disclose exculpatory evidence, applies in cases that go to TRIAL.

When a defendant pleads guilty, he forgoes the opportunity to challenge the evidence and, therefore, no longer has a right to exculpatory evidence. [The SC left open the question as to whether that would apply to evidence that established absolute innocence.]

Consistent with that case, a prosecutor could resolve a legal issue (or even a factual issue) by making a plea offer. The prosecutor is not obligated to inform the defense attorney of the details of the legal issue or even the factual issue, absent a specific question from the defense attorney [The Classic: Is the victim still around to testify?]

So, in Ruiz, the prosecutor refused to turn over co-defendant statements that might have provided the defendant with impeachment material. The prosecutor didn't want the defendant to see those statements unless there was going to be a trial. The SC said that was OK, even though the defendant had to make the choice to plead guilty without the benefit of that information.

And, as prosecutors, we do something like that all the time. Does any defendant really get full discovery before a guilty plea? No. That would defeat the purpose of the plea -- to reduce the work required by the prosecutor in exchange for a reduced sentence for the defendant.

Our plea papers even have an express waiver of the right to exculpatory information, just to make things abundantly clear. That waiver is also helpful in subsequent writs, providing an answer to claims of innocence or ineffective assistance of counsel.

BTW CG your rule and mine sound exactly the same. We are the good guys, we don't hide the ball. Problems with PC don't make the defendant not guilty, but do you really want to send a message to all your officers that you pull fast ones. I hate the exclusionary rule, but not enough to skirt it by a hyper technical application of a moral, ethical and practical duty to disclose.