Investigation and Discovery
Exculpatory Evidence Exonerates the Defendant
I woke up this morning thinking about all the exculpatory evidence there must be collected in any one given investigation. What do the investigators do to minimize the effect that any exonerating evidence would have on their case. It does not appear to me that investigators, detectives, agents of the law, or anyone in authority automatically has an ethical urge to divulge all exculpatory evidence. If you are a criminal prosecuting agency divulging exculpatory evidence can only hurt you, in your opinion. What if divulging exculpatory evidence is seen as the focus that will enable you to discovery who the real perpetrator is? Why not view exculpatory evidence as a gift of truth to guide your discovery of the true facts which you seek? It is time to view exculpatory evidence in a totally new light.
The Brady Rule, named for Brady v. Maryland, 373 U.S. 83 (1963), requires prosecutors to disclose materiallyexculpatory evidence in the government’s possession to the defense. “Brady material” or evidence the prosecutor is required to disclose under this rule includes any evidence favorable to the accused– evidence that goes towards negating a defendant’s guilt, that would reduce a defendant’s potential sentence, or evidence going to the credibility of witnesses.
There are basically two types of investigations in this world. Internal investigations and the all important government investigation initiated by a regulatory body or state agency. Most investigations are government or state sponsored regulatory investigations.
These government investigations by quasi law enforcement agencies bring special ethical considerations into focus. The ethical considerations of investigations and exculpatory evidence must be considered. An investigator has a duty to divulge all exculpatory evidence both to the defendant and to the lead investigators in charge of the investigation. Exculpatory evidence should be carefully documented and analyzed with prosecutors.
Does the Exculpatory Evidence Ruin Your Prosecution?
If the exculpatory evidence totally exonerates your investigation target isn’t it time to end your investigation? How many years can the government pursue an investigation without prosecution? What if your investigation target refuses to break the law? Is your evidence of the targets innocence exculpatory evidence or the small still voice of God?
In the zeal to prosecute a defendant the government must know when to admit that the state has made a mistake. Sometimes the state cannot prosecute its target using virtue cops to entice the defendant into committing a crime. If there is no law broken then no crime has been committed. The state would do well to re-evaluate it’s goals. What is the state’s goal in prosecuting crime? To put that criminal behind bars or to send a message?
If the state has exculpatory evidence then an investigation of a possible criminal defendant then the state should terminate that investigation and go and look for a better one. Is it possible to have oversight of a government gone wild with undercover investigations? From one viewpoint the government is nothing but one big undercover investigation. The amount of exculpatory evidence collected must be a major component of the investigation. How would the defendant obtain this important evidence? Simply request the evidence in discovery?
The purpose of this original article is to get you to think about what you are doing. Why are you doing it and where are you going with it? Bring legal awareness to your new found self awareness. Hold yourself to a higher standard and feel the power that it brings. As investigators we have an obligation to handle the information with ethical considerations divulging all exonerating evidence to the defense as soon as possible.