Open-discovery rules won’t necessarily stop prosecutors from cheating

Sunday’s New York Times hits the nail on the head in an editorial here in which it laments that violations of the U.S. Supreme Court’s 50-year-old Brady rule, which requires prosecutors to disclose exculpatory evidence to the defense, remain ”widespread.” The Times might be overly optimistic, however, in its belief that open-files reforms like those adopted in North Carolina and Ohio that require full disclosure of law enforcement’s investigative files in a case will necessarily solve the problem.
 
Such rules will work only if prosecutors and law enforcement agencies follow them, and that’s far from guaranteed. In an Ohio case I am currently investigating, for example, information about the identification of an uncharged suspect was disclosed only after we learned from a witness that she had picked the man out of a photo lineup. The identity of a second suspect, which a co-defendant says she gave to both a detective and the prosecutor before she pleaded guilty, has still not been disclosed, nor has a summary of her statement that the only other person charged in the crime was not involved.
 
Defense attorneys and investigators should remain skeptical that prosecutors will always follow open-discovery rules any more than they always follow the Brady rule.
 
They should also be aware that another reform — the use of blindly administered sequential photo lineups — can still lead to misidentifications in the era of social media. In this same case, a witness admitted that she and others looked up the defendant’s photo on Facebook once they learned his name, which made picking out his photo later fairly easy. She now admits she was wrong.

5 responses to “Open-discovery rules won’t necessarily stop prosecutors from cheating

  1. If I may …. it’s NOT “cheating.” It’s “breaking the law!”

  2. Docile Jim Brady – Columbus OH 43209

    It is also man element of tyranny .
    Dead prosecutors do not break the law nor tyrannize .

    At the moment , there exists a vacuum wherein evil prosecutors can and do rape the spirit and at times the letter of there oath of office .

    Nature has a way of filling a vacuum .

    A wise discipline system will fill the vacuum before violent others start work to eliminate dangerous rogue prosecutors , whose danger effects the public .

    Nemo Me Impune Lacessit

  3. It won’t solve the problem, but it will help. I’d like to see these reforms combined with repealing prosecutorial immunity.

  4. Pingback: Prosecutorial Misconduct – What’s to be Done? A Call to Action | Wrongful Convictions Blog

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