Prosecutorial mis­con­duct, includ­ing with­hold­ing evi­dence favor­able to the defense, is the most com­mon cause of wrong­ful con­vic­tions in death penal­ty cas­es, but pros­e­cu­tors fre­quent­ly fail to dis­close this evi­dence, nar­row­ly inter­pret­ing the U.S. Supreme Court’s 1963 deci­sion in Brady v. Maryland call­ing for its dis­clo­sure. On March 29, the Court will hear two con­sol­i­dat­ed cas­es—Turner v. United States and Overton v. United States—that raise ques­tions under Brady as to when courts should grant defen­dants a new tri­al when pros­e­cu­tors fail to dis­close excul­pa­to­ry evi­dence to the defense. While the Court may nar­row­ly address Brady​’s appli­ca­tion to these two cas­es, attor­ney and legal com­men­ta­tor Bidish Sarma argues that Turner-Overton presents an oppor­tu­ni­ty for the Court to ​“clar­i­fy prin­ci­ples and cur­tail the con­fu­sion that per­me­ates low­er courts’ opin­ions.” Prosecutors cur­rent­ly argue that they may con­sid­er the mate­ri­al­i­ty of evi­dence that favors the defense when they decide whether to dis­close that evi­dence. Others say all evi­dence favor­able to the defense must be dis­closed, irre­spec­tive of mate­ri­al­i­ty. Withholding favor­able evi­dence from the defense appears to work — a study by the VERITAS Initiative of Santa Clara University School of Law and the National Association of Criminal Defense Lawyers found that courts upheld con­vic­tions in 86 per­cent of the cas­es in which they found that pros­e­cu­tors had sup­pressed excul­pa­to­ry evi­dence. An ami­cus brief by the Texas Public Policy Foundation, FreedomWorks, Cause of Action Institute, and American Legislative Exchange Council urges the Court to make it clear that pros­e­cu­tors must turn over all evi­dence favor­able to the defense, say­ing, “[r]equiring pro­duc­tion of all favor­able evi­dence solves the prob­lem that pros­e­cu­tors face in admin­is­ter­ing the cur­rent mate­ri­al­i­ty stan­dard.” A recent study by the National Registry of Exonerations found that more than half of all mur­der exon­er­a­tions involved Brady vio­la­tions. According to that study, offi­cial mis­con­duct was more com­mon in cas­es involv­ing black defen­dants (76%) than white defen­dants (63%). That dis­par­i­ty grew in cap­i­tal cas­es, where 87% of death-row exon­er­a­tions of black defen­dants involved offi­cial mis­con­duct, com­pared to 67% of death-row exon­er­a­tions of white defen­dants. A DPIC analy­sis of recent death-row exon­er­a­tions found that police or pros­e­cu­to­r­i­al mis­con­duct was a major fac­tor in 16 of the last 18 exon­er­a­tions. DPIC’s review of the National Registry’s 2016 exon­er­a­tion data also found that every one of the 13 mur­der exon­er­a­tions in which pros­e­cu­tors had sought or threat­ened to impose the death penal­ty involved either offi­cial mis­con­duct or per­jured testimony/​false accu­sa­tion, and eleven (84.6%) of them involved both. 

(B. Sarma, ​“Will the Supreme Court Reinvigorate the Brady Doctrine in Turner and Overton?,” American Constitution Society Blog, March 13, 2017; ​“Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases,” National Association of Criminal Defense Lawyers, November 17, 2014.) Read the ami­cus curi­ae brief of the Texas Public Policy Foundation, et. al. Read the ami­cus curi­ae brief of the Cato Institute. See U.S. Supreme Court and Prosecutorial Misconduct.

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