Recent Developments
in the Court of Appeals and the U.S. Supreme Court

FAILURE TO DISCLOSE EXCULPATORY EVIDENCE  

Bielanski v. County of Kane, 550 F.3d 632 (7th Cir. 2008)

(expressing doubt that acquitted defendant could ever show necessary prejudice for a Brady violation, court nonetheless analyzes evidence to determine whether prosecutor’s decision to take case to trial would have been altered by the desired disclosure).

The court analyzes a Brady violation as an interference with the right to a "fair trial."  It then asks whether there can be a deprivation of a fair trial when the defendant is acquitted.  It notes that under Brady, exculpatory evidence only has to be disclosed in time for the defendant to make use of it at trial and it can be turned over at the last minute.  Nonetheless, the court analyzes the information that was not turned over to see if disclosure would have resulted in a dismissal before trial.  This is a step forward and although the court finds that the evidence would not have compelled abandoning the prosecution in this case, this is a much better analysis than simply concluding there is no injury when there is an acquittal.

A better analysis, however, is to avoid the "fair trial" characterization in the first place.  Ask instead whether the defendant was deprived of his liberty because of the failure to disclose exculpatory evidence.  That immediately brings into play all of the pretrial stages where disclosure might have made a difference, beginning with the charging decision, through bail and finally taking the case to trial.  See Michael Avery on liability for failure to disclose exculpatory evidence at 13 Temp.Pol. & Civ.Rts.L.Rev. 1 (2003).

Back to Main List

contact us | sitemap