Prosecutors’ ethical obligations to comply with Brady; Managerial and Supervisory Obligations of Prosecutors under ABA Model Rules of Professional Conduct 5.1 and 5.3
On September 8, 2014 the ABA released Formal Ethics Opinion #467 dealing with the Managerial and Supervisory Obligations of Prosecutors Under Rules 5.1 and 5.3. The opinion begins by noting that prosecutors “must ‘make timely disclosure to the defense’ of exculpatory and mitigating evidence” [emphasis added], contrary to the familiar prosecutorial mantra that “impeachment material is not Brady.” The opinion makes clear that “supervisors who directly oversee trial prosecutors must make reasonable efforts to...
read moreAnd speaking of Brady violations . . .
This article by Ernie Lewis, Executive Director, National Association for Public Defense: It’s time for another list. This time the focus is on prosecutors. Admit it, you have things you want to say about prosecutors. Please join in with your own. Of course, prosecutors come in all shapes and stripes. There are plenty of good ones and plenty of, well, not so good ones. But they all know, if they’re honest with themselves, the...
read more“The People are fully aware of their Brady obligations” – revisited
A recent Stanford Law Review article, “The Brady Colloquy” (http://www.stanfordlawreview.org/online/brady-colloquy), by visiting assistant professor Jason Kreag, “offers a decidedly low-tech, simple, and, to some, perhaps naive suggestion to address the problem of undisclosed Brady evidence: During pretrial hearings, and before a defendant enters a guilty plea, the court should ask the prosecutor a handful of questions on the record.” This procedure is proposed as a means to ameliorate the “distinctly vexing problem for the...
read moreJudicial notice of facts on appeal
May an appellate court take judicial notice of a fact for the first time on appeal where the trial court refused a party’s request to take judicial notice of the same fact, or even where the lower court was never asked to judicially notice that fact? The answer, somewhat counter-intuitively, is yes. In Handling a Criminal Case in New York § 23:35 [2013], Gary Muldoon notes that “[i]t is a basic tenet of appellate...
read moreEar-witness identification procedures, like eye-witness identification procedures, may not be unduly suggestive
As we know, under the due process clauses of the New York State Constitution, Article I, § 6, and the United States Constitution, Fourteenth Amendment, evidence of a pretrial identification of the defendant is inadmissible if the procedure used is “unnecessarily suggestive” (Neil v Biggers, 409 US 188 [1972]; People v Adams, 53 NY2d 241 [1981]; People v Owens, 74 NY2d 677 [1989]; People v Farraro, 144 AD2d 976 [4th Dept 1988]). If tainted...
read moreSurreptitiousness is an element of Unlawful Surveillance
Penal Law 250.45 contains four subdivisions describing four different ways a defendant may engage in Unlawful Surveillance in the Second Degree. Although easily overlooked, each subdivision of the statute includes a requirement that the surveillance in question be done surreptitiously. In People v Schreier, 22 NY3d 494 [2014], the Court made clear that surreptitiousness is a separate and distinct element from whether the recording was done without the subject’s knowledge or consent, and...
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