After defendant agrees to plead guilty, prosecutor discovers the complainant, the sole witness, has passed away and without her the prosecutor has no case. Does the prosecutor have to disclose the death to the defendant?
My initial impression is that no, this fact does not have to be disclosed because it is neither exculpatory evidence that may prove the defendant's innocence nor would it qualify as mitigating evidence.
if you're asking about the law, then no. this is not Brady material. you're doing a plea, not trying a case, therefore Brady doesn't apply at this point, or at least that's what an esteemed member of the TDCAA once told me:
JB said:
quote:Another Factor
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.
anyway if that doesn't make you feel comfortable this might: the death of the victim is information in the public domain, not info known only to government. look generally at U.S. v. LeRoy, 687 F.2d 610, 619.
if you're asking about ethics, then IMO the answer is still no. why should a guilty defendant be rewarded by the death of the victim? as you correctly point out, the evidence is neither exculpatory nor mitigating.
[This message was edited by Drew Gibbs on 01-05-07 at .]
Posts: 65 | Location: Athens, TX - Henderson County | Registered: June 20, 2006
On the other hand, if a criminal defense lawyer asks you a direct question, "Say, before I do this plea, could you tell me if the victim is still alive and capable of testifying?", then you tell the truth.
