The ABA/BNA Lawyers' Manual on Professional Responsibility is reporting today on a recent case in which the court wrote “We have repeatedly rebuked the commonwealth's attorney and his deputies and assistants for failing to adhere to their obligations” under the Constitution, and that “We find it troubling that, notwithstanding these rebukes, officials in the Commonwealth's Attorney's office continue to stake out positions plainly contrary” to those obligations, he said. The case is , 2017 BL 412748, 4th Cir., No. 13-7, 11/16/17.
The court cited other cases in which it "lambasted" Assistant Commonwealth's Attorney for "not produc[ing]
evidence to a criminal defendant unless he first deems it to be 'material' and credib[le]."
The problem is that this conduct is the result of the development of the Brady progeny. Brady imposes a duty to disclose "material" evidence. However, over time, “material” has come to be defined as evidence that would probably would have changed the outcome of the trial if it had been admitted.
For this reason, when determining whether they have a duty to disclose, the prosecutor has to decide -- before the fact -- whether he or she believes that withholding the evidence will change the likely verdict in the case. Thus, prosecutors can justify withholding evidence by claiming that they in good faith thought the evidence would not have affected the verdict. If you add to that the fact that prosecutors are rarely punished for misconduct and the fact that, if discovered, the result of the conduct would be a retrial, you can understand why a prosecutor may be willing to take a chance and withhold the evidence.
One way to address the issue is to hold that the duty to disclose exculpatory evidence is broader than the duty required by Brady, as some opinions have held. Another, suggested by the Court of Appeals in this case, is to hold that the prosecutor should always err on the side of disclosure.
For more see the article in the ABA/BNA Lawyers' Manual at 33 Law. Man. Prof. Conduct 678.