Over fifty years ago, in the case of Brady v. Maryland, the United States Supreme Court held that evidence which tends to negate guilt or mitigate (lessen) the sentence of an accused must be disclosed to him prior to trial. Unfortunately, time and again this evidence is not disclosed as it should be. The problem arises because it is the prosecutor who decides whether such evidence should be disclosed. Courts become involved only when a motion is filed by the defense. Often counsel for the defendant will be unaware that exculpatory evidence exists.
As noted by a recent editorial in The New York Times, ["Rampant Prosecutorial Misconduct" January 14, 2014], it is a prosecutor's job to believe the defendant is guilty. When faced with a seeming mountain of evidence of guilt, it is all too easy for a line prosecutor to believe that a single piece of exculpatory evidence is irrelevant and should not be turned over the counsel for the defendant.
The depth of this problem becomes readily apparent when, time and again, innocent people spend years incarcerated for crimes they did not commit, even when lawyers for the State know evidence of innocence is in their possession. In these cases, the wrongfully accused often cannot even recover sufficient damages from the State to compensate for years of wrongful incarceration.
One of the worst cases of prosecutorial misconduct can be found in the case of former prosecutor (and Judge) Ken Anderson who withheld two pieces of vital information in a murder trial, including a police interview which conclusively established the accused was not home when the murder occurred. How much time did a wrongfully accused man spend in time for a murder he did not commit? Twenty-five years. How much time did the former prosecutor who knowingly withheld evidence of the accused's innocence receive? Nine days, 500 hours of community services and a $500.00 fine.
Until individual prosecutors are held civilly and criminally liable for such misconduct, these injustices will continue to occur. At present, it is extremely difficult to hold prosecutors liable for their misconduct. As noted in the Timesarticle, fighting prosecutorial misconduct preserves "the public trust in our justice system" and is the foundation for the rule of law. The knowing refusal to disclose favorable evidence should immediately be brought to the court's attention and swiftly sanctioned. In some jurisdictions, there is a move to require prosecutors to enact "open file policies" so that defendants can inspect all evidence in the State's possession. What is clear is that justice is not served when individuals with a stake in the outcome are permitted to decide which evidence is disclosed to the defendant.