The Lawletter Vol 36 No 7
The importance of the discovery requirements announced in Brady v. Maryland, 373 U.S. 83 (1963)—and the shocking manner in which prosecutors still disregard those requirements—were recently highlighted by the U.S. Supreme Court in its decision in Smith v. Cain, No. 10-8145, 2012 WL 43512 (U.S. Jan. 10, 2012), in which the Court reversed the Louisiana conviction of a defendant who had been found guilty of five counts of first-degree murder. Since Brady, it has been well understood that the due process provisions of the Fifth and Fourteenth Amendments to the U.S. Constitution require prosecutors to turn over to defendants any and all evidence that could be deemed to be exculpatory, including evidence that might be used to impeach prosecution witnesses.
In Smith, the defendant had been accused of killing five persons in a home invasion robbery, and, at trial, the sole identification evidence against the defendant came from a single eyewitness who had been present at the home with the victims during the robbery. The witness testified at trial that he was certain that the defendant had been the killer, claiming that he had been face-to-face with the defendant during the initial moments of the robbery. However, during the police investigation of the case, this same witness had told police that he could not identify anyone because he had not been able to see any faces during the crime and "would not know them if [he] saw them." Id. at *2. Consequently, the investigating officer's typewritten report of the interview with the witness stated that the witness "could not identify any of the perpetrators of the murder." Id.
None of these facts were ever revealed to defense counsel during discovery, and they came to light only after the trial, when defense counsel began to pursue postconviction relief. Remarkably, the state trial court denied the defendant's request for relief under Brady, and the Louisiana appellate courts affirmed.
In a brief opinion for the 8-1 Supreme Court, Chief Justice Roberts easily found that the eyewitness's pretrial statements to police had been both favorable to the defendant and material to the determination of guilt. Because the Court believed that the undisclosed statements were sufficient to undermine confidence in the defendant's conviction, the Court ordered the judgment of the trial court to be reversed. Justice Thomas dissented, arguing that the defendant should have been required to show a "reasonable probability" that the jury would have been persuaded by the undisclosed information, and he contended that this burden had not been met. Id. at *3 (Thomas, J., dissenting).