If you are accused of a crime, the prosecutor is required by law to provide you with all “exculpatory” evidence that is known to them. Exculpatory evidence is evidence that tends to prove that you are not guilty. The landmark U.S. Supreme Court case that mandates this is Brady v. Maryland, and any evidence that must be turned over is known in the practice of criminal law as “Brady” evidence. Notice I said the evidence would tend to prove your innocence. Not evidence that proves your innocence conclusively outright – because then they would be duty bound to dismiss your case, right? So long as the evidence might contribute to reasonable doubt, it must be turned over.
- You are accused of snatching a purse from the Kroger parking lot in broad daylight. The police put you in a lineup with five others. Two witnesses identify you, but a third witness picks out someone else. Even if the prosecutor believes the third witness is blind, or lying, the prosecutor must still disclose the third witness that didn’t pick you out.
- You are on trial for carjacking. The state’s primary witness, Setem Upjoe, claims he saw you do it while he was eating at Applebee’s and looking out the window. After you get convicted, you learn that Upjoe is an alcoholic, and in fact drinks with the prosecutor’s brother-in-law, so the prosecutor probably knew it. You have a strong argument on appeal that you should get a new trial based on the possibility that Upjoe’s identification of you is flawed because of his condition.
Does the prosecutor have to search for evidence that may help my case?
No. That is you and your lawyer’s job. Prosecutors are only required to turn over evidence that would help you that they know of. They are not required to run down every questionable lead, or to help you with your case. I mentioned here that my firm is partnered with a statewide investigation firm, and depending on the individual case I can keep them very busy running down leads.
It is important to know what to ask for from the DA’s office, and it is important to search through what they give you for any available clues that may lead to other helpful evidence. A good criminal lawyer will know what to ask for, how to ask for it, and may even be able to ”read between the lines” and develop a plan to get what is really needed for a successful representation.