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New York Becomes First State to Require Trial Judges to Remind Prosecutors of Their Brady Obligations During All Criminal Trials

by Christopher Zoukis

New York Chief Administrative Judge Lawrence K. Marks issued a bold (and much needed) new rule on November 7, 2017. Intended to remind prosecutors of their duty to disclose exculpatory material to the defense, the rule requires that all trial judges in the state issue a “Brady” order at the outset of all criminal trials. New York becomes the first state in the country to implement a statewide notice requirement by presiding judges to prosecutors in all applicable criminal trials.

In 1963, the United States Supreme Court determined in Brady v. Maryland, 373 U.S. 83 (1963), that the Constitution requires the government to hand over all exculpatory information on a timely basis to defendants facing criminal prosecution. Despite this constitutional obligation, the failure of prosecutors to comply with their Brady obligations has been a persistent problem. Research shows that an alarming number of innocent people have been wrongfully convicted and imprisoned based upon the prosecution’s failure to provide exculpatory evidence in its possession to the defense.

Prosecutors who fail to turn over Brady material to the defense are rarely punished or sanctioned for their misconduct. Under the new rule, judges are permitted to impose sanctions or take other appropriate action for intentional Brady violations; however, the primary goal of the rule is preventive. 

The new rule, effective January 1, 2018, spells out three categories of information that prosecutors are required to disclose pursuant to Brady: material that (1) impeaches the credibility of witnesses, (2) exculpates or reduces the degree of the defense, and (3) mitigates the degree of the defendant’s culpability or punishment.

According to the Innocence Project, the rule also makes reference to specific types of evidence that are required to be disclosed, including “any benefits or promises made to witnesses for their cooperation, prior inconsistent statements and uncharged criminal conduct or convictions, and information regarding a witness’s mental or physical illness or substance abuse.”

Barry Scheck, co-director of the Innocence Project, praised the new rule, which was approved by Chief Judge Janet DiFiore. “Chief Judge DiFiore and the Justice Task Force have taken a critical step in ensuring that prosecutors across the state honor their legal and ethical obligations to turn over all evidence that is favorable to the defendant,” Scheck commented. “Critically, the new rule will educate less experienced prosecutors on their constitutional and ethical obligations, and ensure that they make it a priority to seek out and timely disclose all evidence that furthers a potential claim of innocence or otherwise aids the defense’s case.”

The new rule comes with a detailed model order, approved by the Office of Court Administration. According to the Innocence Project, the model order reminds prosecutors of the type of information they must disclose, establishes a timeframe for doing so, and allows for personal sanctions against prosecutors who willfully and deliberately violate the order. Trial courts are not required to use the model order.

The rule also contemplates a reminder to defense attorneys of their own constitutional duties. The order states that defense attorneys must “provide constitutionally effective representation in the case, such as keeping the client informed about the case, providing reasonable advice regarding any plea offers, and performing a reasonable investigation of both the facts and law pertinent to the case.”

It is unfortunate there is even a need for such a rule whose sole purpose is to remind prosecutors and defense attorneys of what the law and cannons of legal ethics require of them. But to Chief Judge DiFiore, the new rule is a step in the right direction. “This newly adopted measure will go a long way to help prevent and remedy systemic errors that contribute to wrongful convictions, acting as a consistent reminder to prosecutors and defense attorneys of their respective—and critically important—roles in the fair administration of justice,” said DiFiore. 


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