Michael Lowe is Celebrating Over 20 YEARS of Service

Learn More

Prosecutor Withholding Evidence from Defense in Federal Criminal Case

In a criminal case, someone’s freedom — or even their life — is on the line.  Legally, this places special duties upon the prosecution to be fair with the defendant.  All sorts of laws exist to protect against abuse by the state: things like the Speedy Trial Act, for instance.

Prosecutorial Duty to Turn Over Evidence to the Defense

One of the biggest fairness protections is the requirement in both federal and state prosecutions to turn over evidence that the prosecution has collected to the defense.  It is considered to be serious prosecutorial misconduct to deny the defendant access to prosecutorial evidence in the criminal case.


Duty to Share Evidence

John Wiley Price Trial: Prosecutors Hold Back Evidence

This week, U.S. District Judge Barbara Lynn criticized the federal prosecutors in the John Wiley Price trial for “improper conduct” in the withholding of evidence from the defense team, going so far as to say this may endanger the “fundamental fairness” of the trial.

On the evening of April 10, 2017, a batch of prosecution evidence was delivered to the defense.  The trial has been underway for awhile now.  This was the fourth time this delayed production of evidence has occurred.

For details, read “Judge in John Wiley Price trial blasts prosecution for ‘improper conduct,’ delays ruling on dismissal,” by Kevin Krause, published in the Dallas Morning News on April 11, 2017.

The defense moved for a mistrial.  That was denied by Judge Lynn.  The defense also moved for a dismissal of the charges.  That has not been ruled upon by the Judge (as of the date of this post being written).

The John Wiley Price defense team has been allowed lots of leeway in its presentation of its case to the jury.

  • They are getting extra time to check out what has been turned over to them;
  • They are going to get lots of room to move insofar as introducing evidence to the jury to support Mr. Price’s defense arguments; and
  • The judge has already told everyone the jury will be formally instructed about the prosecution’s tardiness in turning things over to the defense team.

Today, we’re not delving into details the John Wiley Price trial – it’s a pending case.  The defense hasn’t begun to present its side of the story yet.

Here we are giving a review of the duty to share evidence with the defense and when the law considers it prosecutorial misconduct to hold back evidence in a criminal matter.

SCOTUS: Constitutional Requirements to Share Evidence with the Defense

The Supreme Court of the United States has issued case precedent that applies to government evidence in a criminal proceeding.  These SCOTUS mandates define the constitutional protections that exist in both state and federal proceedings.

Two of the biggest SCOTUS rulings here are (1) Brady v. Maryland, 373 U.S. 83 (1963) and (2) Giglio v. United States, 405 U.S. 150 (1972).

Brady is so powerful that it’s become known even to first year law students as enacting the “Brady Rule”.  It requires prosecutors to turn over evidence that is materially exculpatory to the defense.  This is called “Brady material” or “Brady evidence.”

Giglio holds that the prosecutor must hand over Brady evidence to the defense regardless of whether or not the defense moves for it and that the Brady Rule applies to all prosecutors trying criminal cases in this country.

State of Texas Requirements to Share Evidence with the Defense

We’ve discussed the legal requirements for Texas District Attorneys to turn over evidence to the defense in a criminal case.  See, “Prosecutorial Misconduct in Texas Alert: Ethical Rules Held to Have Broader Duty Than Brady to Turn Over Exculpatory Evidence to the Defense.”

In Texas, the problem of prosecutors withholding evidence from the defense is shockingly commonplace.  See, e.g.:

This problem is so serious in state courtrooms that individual ethics rules have been passed in Texas that apply to the individual prosecutors.

This means that the individual prosecutor is vulnerable to being disciplined by the State Bar of Texas for prosecutorial misconduct involving holding back evidence.  The most serious form of discipline available here: loss of their law license.

Federal U.S. Attorney Requirements to Share Evidence with the Defense

There are also federal laws and procedural rules that govern the federal prosecutions here in Texas.

1.  Federal Prosecutors and the Brady Rule

As discussed above, there is the “Brady Rule” originated out of SCOTUS precedent.  Here, the prosecutor must turn over materially exculpatory evidence to the defense.  And this must happen in a timely manner.

This is anything that might be helpful to the defendant and favor his side.  For instance, it could help toward proving his innocence (“exculpatory evidence”), or it might reflect on the credibility of a witness called by the government in its case (“impeachment evidence”).  It can also be evidence that a witness was compensated by the government in some way, including promises of leniency.

If the prosecution holds this evidence from the defense, the evidence can be suppressed.  It will not matter if the prosecution made a mistake in failing to turn it over.  The good faith of the U.S. Attorney’s Office isn’t material here.  It doesn’t matter if the police had the stuff and not the prosecutor’s office.

The defense does have to show that there is a reasonable likelihood that this evidence would have made a difference in the trial.

2.  Prosecutors Do Not Have to Open File to Defense

In the case of Weatherford v. Bursey, 429 U.S. 545 (1977), SCOTUS provides further guidance to prosecutors on what they have to turn over to the defense.  While “Brady evidence” must be shared with the defense team, it does not mean the prosecution has to open its entire file and share everything it has with the accused.  From this opinion: “There is no general constitutional right to discovery in a criminal case, and Brady did not create one.”

There is no constitutional right to discovery of the prosecutor’s entire file.  This means the government has the duty to decide what evidence comes with the “Brady Rule” and what does not.

3.  Disclosure Duties under the Federal Rules of Criminal Procedure

Under the federal criminal procedure rules, prosecutors must comply with the discovery procedures adopted by SCOTUS for all federal criminal cases. Fed.R.Crim.P.16, 26.2.

Federal Rule of Criminal Procedure 16(a) outlines the “government’s disclosure,” including things like “defendant’s oral statement,” “documents and objects,” and “expert reports.”  It also explains what “information is not subject to disclosure” in F.R.CrimP.16(a)(2).

Federal Rule of Criminal Procedure 26.2 gives the directives for producing a witness statement to the defense.

4.  Prosecutors Have Duty to Seek Out Exculpatory and Impeachment Evidence

It is the policy of the Department of Justice for all federal prosecutors to “seek all exculpatory and impeachment information from all members of the prosecution team.”  This includes not only federal, state, and local law enforcement officers working on the case with them but any known official who has worked in the investigation and preparation of the case against the accused.

It is a duty imposed on federal prosecutors to search out potential Brady evidence.  The U.S. Attorney’s Manual calls it their “search duty.” See, USAM 9-5.001.


For more information, check out our web resources page as well as Michael Lowe’s Case Results and  learn more about prosecutorial misconduct, in our series of blog posts on that topic.


Comments are welcomed here and I will respond to you -- but please, no requests for personal legal advice here and nothing that's promoting your business or product. Comments are moderated and these will not be published.

Leave a Reply

Your email address will not be published. Required fields are marked *