One of the biggest struggles that any
criminal defense attorney in Phoenix, or for that matter anywhere else, faces is getting Brady material from
prosecutors. Under a 1963 United States Supreme Court landmark decision
called Brady v. Maryland, prosecutors are required to turn over to the
defense any exculpatory evidence; that is, anything that could show that
the defendant is innocent. Some examples could include:
Forensic evidence (fingerprints, DNA, etc.) that shows that someone
other than the Defendant committed the crime;
- Lost evidence;
- A discovery that someone else may have done it
Over the years, the Supreme Court’s decision has evolved such that
impeachment material must now also be disclosed by prosecutors so that
criminal defense lawyers can use this information to cross-examine the
prosecution’s witnesses. Examples of impeachment material that prosecutors
must turn over to the defense are:
- A witness’ prior felony convictions;
- A witness’ prior contradictory statements;
- A witness’ receipt of a plea agreement in exchange for testifying
for the prosecution;
- A witness’ receipt of immunity in exchange for testifying for the
Should a Prosecutor Automatically Disclose Brady Material to the Defense Attorney?
Yes. Whether they do is another story.
After the Brady decision was handed down, the Supreme Court continued to
refine its ruling and expand prosecutor’s obligations to turn over
what is now known as ‘Brady material’ to defense attorneys.
Prosecutors now have an affirmative obligation to look for Brady material
and to provide it to the defense.
Often times, prosecutors “look” for Brady material and find
nothing. Of course, if you look in a medicine cabinet for a baby elephant,
you are not likely to find one. In my humble view as criminal defense
lawyer in Phoenix who has practiced almost exclusively in criminal law
for the last 20 years, I suggest that perhaps many prosecutors view ignorance
as bliss and they want to be the ostrich whose head is buried in the sand.
(So much for my animal metaphors.)
What if the Prosecutor Thinks That Brady Material is Not Relevant to the Case?
It’s a common occurrence for prosecutors to argue that because they
don’t intend to call a witness or introduce certain evidence, the
related Brady material is not relevant. Nothing could further misconstrue,
and operate as a perversion of the Supreme Court’s ruling.
Prosecutors don’t get to make the call about whether Brady material
is relevant. Brady material is
always relevant and
must be disclosed, no matter the prosecutor’s opinion or trial strategy.
The criminal defense attorney decides what evidence to use at trial—it’s
their call and their call alone.
Sometimes a Criminal Defense Attorney Needs to Fight to Get Brady Material
It would seem ridiculous to have to fight for what you’re entitled
to, but that’s every criminal defense attorney’s daily battle
when it comes to Brady material.
Jason Lamm is regarded as one of Phoenix’s most aggressive attorneys in trial,
largely because of his tenacity in cross examining witnesses. He finds
evidence to impeach the prosecution’s witnesses, often times digging
deeper beyond the Brady material prosecutors provide to maximize the benefits
for his clients.
In one of Jason’s fairly recent drug conspiracy cases, prosecutors
provided very limited Brady material about an informant’s criminal
record. Prosecutors swore that they looked long and hard and that they
everything they had on the informant. Little did they know that Jason knew that the
prosecutor had called the informant to testify in another trial and provided
different Brady material to the defense in that case; far more than they provided Jason.
In the end, all charges against Jason’s client were dismissed and
the prosecutor had some serious explaining to do about why she lied, not
only to Jason, but to the Court in her filings about the informant’s record.
Whether you are facing marijuana transportation,
white collar charges, or
murder charges, if you are looking for high-quality advocacy and unparalleled dedication
from one of Phoenix’s most experienced criminal defense attorney,
then Jason Lamm is who you need to call.
Confidential consultations can be arranged during regular business hours by calling (602) 663-9100.