We wrote recently on our distaste for those on the defense side who persist in playing games. It should go without saying that it is far worse for the prosecution to play games. And yet it happens all the time.
Ideally, when the prosecution has done its job right, it’s going to be holding all the cards. If those cards are good, there’s little reason not to show them early and convince the defense to fold. It saves everyone the expense and burden of litigating and trying a case that ought to just plead out.
And if those cards aren’t so good, then fairness requires that they still be shown. Simple due process requires that a criminal defendant — someone whose life, liberty, reputation and property the government intends to destroy — be told when the government has evidence that might help him defend himself. If such evidence is in the government’s possession, it’s not realistic to believe that the defense would ever discover that evidence. Law enforcement is rarely willing to share information with the defense. And even with evidence from other sources, the defense never has anywhere near the resources and ability of the government to discover that evidence. Anyone who thinks the two sides are fairly matched in this regard either has no experience, or no active brain cells.
So that’s why we have the Brady rule. Prosecutors are supposed to give the defense any evidence possessed by the government that might help the defense at trial or at sentencing. It’s a great rule, but the problem is that prosecutors often have a hard time following it. And they get away with it plenty, because it’s not like the defense was ever going to learn of the existence of that evidence. And they have absolute immunity from civil suit for their Brady violations.
What happens often enough, unfortunately, is that prosecutors try to game the rule. Any (more…)