Don’t bet on it. Many of the same prosecutors who offer this rote recitation meant to placate the defendant and the court, go on to demonstrate an affirmative unfamiliarity with their Brady obligations.
The problem many be one of semantics. “Brady material” has become a shorthand reference for “those materials required to be disclosed under Brady and its progeny.” If “Brady material” refers to only those items described in the Brady decision, such a cramped reading allows the prosecutor to ignore any case that came after, and built upon, Brady. On the other hand, if “Brady material” is given its commonly-understood meaning, then many prosecutors either have not read, or if they have, intentionally misrepresent to the court, the obligations imposed by those “progeny” cases. The ability to sing the song (“Here’s a story, of a man named . . . “) does not an awareness of Brady make.
For example, many prosecutors argue that Brady is inapplicable to impeachment material or any “bad act” information not resulting in a conviction. This argument is unsupported by and directly contrary to over 30 years of New York State and federal law (Youngblood v. West Virginia, 547 U.S. 867 [2006]; Kyles v. Whitely, 514 U.S. 419 [1995]; Wood v. Bartholomew, 516 U.S. 1 [1995]; United States v. Bagley, 473 U.S. 667 [1985]; United States v. Agurs, 427 U.S. 97 [1976]; Brady v. Maryland, 373 U.S. 83 [1963]; People v. Baxley, 84 N.Y.2d 208, 213 [1994], rearg. dismissed 86 N.Y.2d 886 [1995]; People v. Steadman, 82 N.Y.2d 1 [1993]; People v. Novoa, 70 N.Y.2d 490 [1987]; People v. Harris, 35 A.D.3d 1197 [4th Dept. 2006]; People v. Monroe, 17 A.D.3d 863, 864 [3rd Dept. 2005]; People v. Valentin, 1 A.D.3d 982 [4th Dept. 2004], lv. denied 1 N.Y.3d 602 [2004]).
In fact, Brady material unquestionably includes evidence that detracts from the credibility or probative value of testimony or evidence offered by the prosecution (Giglio v. United States, 405 U.S. 150 [1972]; Thomas v. United States, 343 F.2d 49 [9th Cir. 1965]; People v. Novoa, supra), including impeachment material (United States v. Bagely, 473 U.S. 667 [1985]), as well as full details concerning any cooperation agreement between the government and a witness (People v. Steadman, supra; People v. Cwikla, 46 N.Y.2d 434, 441-442 [1979]; People v. May, 228 A.D.2d 523 [2nd Dept. 1996]; People v. Grice, 188 A.D.2d 397 [1st Dept. 1992]; see also, Shih Wei Su v. Filion, 335 F.3d 119 [2nd Cir. 2003]).
The prosecution’s obligation of disclosure under Brady requires “. . . more than just a boilerplate, cursory review and response. It must be a pro-active, vigorous attempt to respond . . .” (People v. Ariosa, 172 Misc.2d 312 [Co. Ct. Monroe Co. 1997]; People v. Novoa, supra; see also, People v. Simmons, 36 N.Y.2d 126, 132 [1975]; Kyles v. Whitley, supra). Along these lines, it is not for the People to decide whether exculpatory evidence is reliable; that determination is for defense counsel alone (People v. Jackson, 198 A.D.2d 301 [2nd Dept. 1993]) and neither the prosecutor nor the court may substitute their judgment of the value of the evidence for that of defense counsel (Dennis v. United States, 384 U.S. 855, 875 [1966]; People v. DaGata, 86 N.Y.2d 40 [1995]). In this regard, any close questions should be resolved in favor of disclosure (United States v. Agurs, 427 U.S. 97, 108 [1976]). The Court of Appeals has cautioned the prosecution “to err on the side of disclosure where exculpatory value is debatable” (People v. Vilardi, 76 N.Y.2d 67, 77 [1990]).
Instead, prosecutors often seek to insulate their witnesses from relevant cross-examination, thereby presenting the jury with an artificially sanitized view of the witnesses’ credibility by watering down the defendant’s Sixth Amendment right to meaningful confrontation and the effective assistance of counsel.
When arguing against their obligation to make such disclosures prosecutors will often complain (either expressly or by implication) that compliance with defendant’s requests would result in unfairness to the People – “it’s not a level playing field.” Of course, it was never meant to be.
For example, unlike those restrictions applicable to a defendant, there is no prohibition against demonstrating the propensity of a witness (see, People v. Davis, 44 N.Y.2d 269, 274 [1978]; People v. Mayrant, 43 N.Y.2d 236, 239 [1977]; People v. Sorge, 301 N.Y. 198, 200 [1950]). Thus, evidence of the uncharged immoral or criminal acts of a non-defendant witness is admissible and may not be excluded if probative of a matter in issue, unlike proof of other bad acts employed to demonstrate the character of a defendant (People v. Jackson, 39 N.Y.2d 64 [1976]; People v. Fiore, 34 N.Y.2d 81 [1974]).
Likewise, there is no Molineux-type restriction on introducing evidence of the criminal acts of a witness (see, e.g., People v. Morgan, 172 A.D.2d 312, 313 [1st Dept. 1991]; People v. Molineux, 168 N.Y. 264 [1901]). While such evidence is relevant and admissible, the admission of such evidence against a defendant is “objectionable because juries may attribute too much significance to it” (People v. Lewis, 69 N.Y.2d 321 [1987]). Thus, this evidence is not admissible against a defendant because of the danger that it might “result in the proof of the prior offenses being taken by the jury as justifying a condemnation of the defendant irrespective of his guilt of the offense charged” (Id.). These policy considerations are not applicable to the admission of “propensity” or “other bad act” evidence against a witness. Defendant’s right to present relevant evidence at trial, guaranteed by the United States and New York State Constitutions compels at minimum that the defense be permitted to offer such evidence and elicit a ruling from the Court as to it’s relevance in light of the other facts presented at trial (see, e.g., Chambers v. Mississippi, 410 U.S. 284 [1973]).
To those courts disinclined to wade into Brady disputes and the necessarily attendant and messy allegations of prosecutorial negligence, sharp practice, or affirmative misrepresentation or concealment, Justice Frank offered some, well, frank guidance:
“If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it . . . If the prosecutors win verdicts as a result of ‘disapproved’ [conduct], we will not deprive them of their victories; we will merely go through a form of expressing displeasure. The deprecatory words we use in our opinions are purely ceremonial. Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court – recalling the bitter tear shed by the Walrus as he ate the oysters – breeds a deplorable cynical attitude towards the judiciary” (United States v. Antonelli Fireworks Co., 155 F.2d 631, 651 [2nd Cir. 1946] [Frank, J., dissenting]).
