Second Circuit Issues Notable Decision on the Government’s Obligations to Disclose Exculpatory Information

Prosecutorial gamesmanship over the disclosure of Brady/Giglio material was dealt a significant blow in the recent decision of United States v. Rodriguez, 2007 WL 2092932 (2d Cir. July 24, 2007). (For lay readers, Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972) are the seminal decisions holding that the government must disclose material information that is favorable to the defense, either because it is exculpatory or because it impeaches the government’s witnesses.) Holding that the government cannot withhold exculpatory information from the defense merely because the information has not been written down, the Second Circuit made some important additional rulings and observations about a prosecutor’s obligations under Brady. In Rodriguez, the defendant was convicted at trial based primarily on the evidence of two cooperating witnesses, one of whom admitted on direct examination to having lied “about everything” during her initial interviews of investigators. Defense counsel demanded that the government disclose investigators’ notes from the interviews, and demanded to be informed of the substance of the witness’s false statements. The government advised that no notes had been made of the false statements and refused to disclose the substance of the lies. The district court declined to compel the disclosure. On appeal, Rodriguez contended that the government was obligated under Brady to take notes during its interviews of cooperating witnesses and to disclose the substance of the witness’s lies. The Second Circuit rejected the claim that the government was obligated to take notes during witness interviews, but agreed that the government’s disclosure obligations under Brady do not depend on whether or not the exculpatory information is in a tangible form. The Court then remanded for the district court to make a determination of whether the witness’s undisclosed prior statements were sufficiently material to give rise to a disclosure obligation and whether the defendant had been prejudiced. Rodriguez is notable for several reasons:

• Absence of memorialization is irrelevant. While the Court rejected the defendant’s claim that the government was obligated to take notes during witness interviews, the Court was adamant that the absence of notes did not eliminate Brady disclosure obligations. Brady is a rule of fairness, not mere procedure, and the fairness of advising a defendant of favorable information does not dissipate merely because that information has not been physically recorded. While this conclusion may seem obvious, as the Federal Defenders point out on the Second Circuit Blog, the prosecutors in the SDNY thought otherwise until Rodriguez was published.
• Inadmissibility of information is irrelevant. It doesn't matter that the information in its present form may be inadmissible (for example, it consists of inadmissible hearsay, or impeachment material on a collateral issue). The principle of fairness dictates that it must still be turned over to the defense, because it could be deemed admissible later under some legal theory or it could potentially lead to the discovery of admissible evidence favorable to the accused.
• Disclosures must be sufficiently specific and complete to be useful. Although this statement is not new law, the Court effectively amplified this requirement by querying whether a general disclosure that a witness lied, without providing the specifics of the lies, could be sufficient to discharge a prosecutor’s Brady obligations. Disclosing that a witness lied but leaving the defense counsel to elicit the nature of the lies on cross-examination may effectively foreclose any further exploration of the issue, the Court acknowledged, since responsible lawyers would refrain from questioning the witness blindly before the jury. Moreover, the only way to determine which version of the witness’s story is the truth is by analyzing the manner in which it changed – an analysis that would necessarily require disclosure of the substance of the inconsistent statements. As the Court explained, “[i]t is at least possible that the initial statements were the truthful ones, and that [the cooperator’s] later testimony was a falsification designed to serve her interests as a cooperator.”
• Disclosures are preferably made prior to the commencement of the trial. The Court's Brady cases require that Brady disclosures should be timed to ensure the defense has sufficient time to make use of the information. In Rodriguez, the Court tipped the balance in favor of pretrial disclosure, declaring the latter to be “advantageous,” particularly where the information leads to additional investigation or litigation. The Court acknowledged that there may be legitimate reasons for waiting until mid-trial to make disclosures (as the prosecutor did in Rodriguez), such as the protection of a cooperator’s identity. But by authorizing disclosure for emergent reasons, the Court implicitly disapproves of late disclosure where the sole reason for withholding the information was to gain a trial advantage.
• Memorialization may be necessary to ensure accuracy. The Court raised but did not decide whether in some cases preservation of information may be necessary in order to ensure it is accurately related to the defense, because "there [was] no reason to doubt the ability of the AUSA to inform the defense of any of the witnesses' prior statements that were materially exculpatory or impeaching." Not all prosecutors' memories can be so superhuman, however, and one can certainly imagine the scenario where the prosecutor remembers the witness lied "about everything" in the initial interviews several years earlier, but now cannot recall the substance of those lies. In such case, the Court may not look so favorably on the prosecutor who failed to record the interview, or, at the very least, failed to memorialize inconsistencies once they emerged.
• Prosecutors should beware of instructing agents not to take notes to circumvent Brady protections. The Court also raised but did not decide the question of whether "for the purpose of avoiding the disclosure of the initial falsities and inconsistencies of persons who may become Government trial witnesses, [a prosecutor] may permissibly instruct an agent not to follow the customary practice of taking notes of witness interviews." The Court's highlighting of this issue suggests that if actual evidence was presented of such a practice (and indeed, defense lawyers have all witnessed this practice in proffer situations), it would take a dim view of it. In fact, as Barry Berke and Eric Tirschwell point out in their excellent article commenting on the Rodriguez decision and proposing a rule establishing uniformity in the context of government note-taking in witness interviews -- New Rule Proposed On Note Taking in Criminal Cases, NYLJ, 9/6/2007 -- current F.B.I. policy requires that agents keep a record of the "results of" all interviews with potential witnesses, and directs agents to refuse to participate in such interviews if the prosecutor gives instructions to the contrary.

And finally, if the above strikes in favor of defendants are not enough, we can add another from this notable Second Circuit Brady decision published last year:

• Prosecutors’ personal assessment of reliability of exculpatory information is irrelevant. In Disimone v. Phillips, 461 F.3d 181 (2d Cir. 2006), the Court rejected the government’s argument that a prosecutor need not disclose exculpatory information that the prosecutor believes is mistaken or false, noting that the “if there [are] questions about the reliability of the exculpatory information, it [is] the prerogative of the defendant and his counsel-and not of the prosecution-to exercise judgment in determining whether the defendant should make use of it . . . To allow otherwise would be to appoint the fox as henhouse guard.”

Rodriguez underlines the need for defense practitioners to follow the rule of asking early and asking often when it comes to Brady material. Courts should be petitioned to order the government to preserve notes of witness interviews, and to order the disclosure of Brady material in line with the principles contained in Rodriguez and Disimone.