Two of the many issues relating to prosecutorial disclosure of Brady material are the timing of the disclosure and the identification of the material as exculpatory.  Many, perhaps most, prosecutors believe that they have satisfied their ethical and constitutional obligations under Brady by providing the exculpatory material just before trial (or before the witness affected testifies) without any specification that it is Brady material.  Courts rarely — almost never — reverse a conviction because the Brady material was provided late or without any signal that it is exculpatory material.

In this connection, yesterday an intermediate New York appellate court in Brooklyn upon an appeal of a denial of a post-conviction motion unanimously reversed a kidnapping conviction because of the untimely disclosure of Brady material in a "document dump" on the eve of trial.  The prosecutors there had during jury selection delivered the documents "interspersed throughout a voluminous amount of other documentation, without specifically identifying the documents at issue at the time of delivery," thereby, said the court, "burying" them.  By doing so, the prosecution "deprived the defendants of a meaningful opportunity to employ that evidence during cross-examination of the prosecution's witness."  People v. Wagstaffe, A.D.3d — (2d Dept., Sept. 17, 2014).  See here.

The prosecution's case was based exclusively on the testimony of a witness under the influence of drugs and alcohol at the time of the event who testified that she saw the defendants force the 16-year old victim into a car.  The documents, police requests for records for both defendants, would have revealed that the defendants were being investigated one day prior to the initial police interview with the witness, contrary to the testimony of one of the investigating officers that the interview led them to the defendants.  Thus, the documents, said the court, would "bear . . . negatively upon the credibility of [the witness] and the investigating detectives," issues of "primary importance in this case."

Too often appellate courts, often while giving lip service to the notion that Brady material should be provided to the defendant in time for him or her to use in a meaningful fashion, accept the view that a few minutes before cross-examination is sufficient, or that the defense lawyer's failure to request an adjournment is fatal to the defense appeal.  Too often courts distinguish between Giglio impeachment of witness material and other Brady material and accept that it is acceptable that the former be given as late as just before cross-examination.  Too often courts expect defense counsel to find the Brady "needle in a haystack" in a pile of discovery or 3500 material provided shortly before trial.

It is refreshing for an appellate court to accept the practicality that a harried on-trial defense lawyer cannot be expected to appreciate immediately the significance of a single item or a few items of paper provided at the last-minute and/or together with a mass of other less significant documents.  It is refreshing for a court not to accept the prosecutorial tactic or custom to provide a "document dump" to conceal a page or a few pages of significant exculpatory material. 

Hopefully, this decision will be affirmed on appeal (if taken or allowed) to New York's highest court, the Court of Appeals, and will be a bellwether for other courts, and not ignored or consigned to history as an aberrant decision of an intermediate appellate court.

(goldman)