How much evidence is the prosecution required to disclose to defense counsel? The U.S. Supreme Court recently upheld a standard that continues to allow district attorneys and police to be selective with the information they choose to share with defendants.
In Turner v. United States, the Court affirmed the 1990 murder convictions of seven men — despite the prosecution’s failure to reveal evidence that pointed to another suspect and may have led to an acquittal. Michigan law professor Samuel Gross, founder of the National Registry of Exonerations, examined this decision in The Crime Report.
“Turner reaffirmed a terrible old rule that has done great harm to the accuracy of criminal trials, and will continue to do so,” he wrote.
The problem with the Turner convictions begins with the police believing a 1984 murder/rape was committed by a gang of a dozen men. The crime scene, however, was far too small an area for more than a few assailants and the victim.
No DNA or forensic evidence connected any of the accused to the crime. One witness identified an entirely different man, who was arrested several weeks later for separate attacks on two other women.
This same man eventually was convicted for raping and murdering a third woman.
The police investigation was aware of all this conflicting information, but it was kept from the defendants throughout their trial. It took 26 years for this evidence to finally come to light.
“When a prosecutor does hide evidence, chances are nobody will ever know,” Gross explains.
The Justice Department agreed that the Turner evidence should have been disclosed at trial. But did this non-disclosure justify a new trial? The Supreme Court decided it did not.
“A prosecutor has to decide whether to disclose favorable evidence before the trial begins,” Gross continued. “How can she possibly know before trial whether undisclosed evidence might tip the jury’s decision at the end of that trial?”
“A court reviewing the case faces the same impossible question — what might have happened at trial if these facts had been known to the defense? — with an added twist: Judges are extremely reluctant to reverse jury verdicts and order new trials.”
Brady v. Maryland, the 1964 Supreme Court precedent, states that the government must always reveal evidence that is favorable to the defense in any criminal trial if that evidence is “material” to the case.
Later cases ruled that such evidence is only considered “material” under Brady if the reviewing court decides there is a “reasonable probability” that the outcome of the trial would have been different.
Federal Ninth Circuit Judge Alex Kozinski in 2013 blamed the “epidemic of Brady violations” on courts’ narrow definition of “materiality,” which realistically means prosecutors will almost never suffer consequences when they hide evidence from defense attorneys.
Professor Gross has a simple and clear solution. “Why not eliminate the ‘materiality’ requirement entirely and treat access to exculpatory evidence like other aspects of a criminal defendant’s constitutional right to a fair trial? If exculpatory evidence is concealed, it’s a violation of the Constitution, period.”
The National Registry of Exonerations lists 2,061 convictions from 1989 to present where innocent defendants were later exonerated, including 802 convicted of murder. The prosecution failed to disclose exculpatory evidence in 50 percent of these murder exonerations.