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Does the Government Have to Disclose Exculpatory Evidence?

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In criminal trials, defendants always start out at a disadvantage. While the government may investigate and prepare its case for months before bringing charges, many defendants don’t even know that they are a suspect until federal agents show up with an arrest warrant at their door.

Fortunately, the law does provide criminal defendants with some protections. Among these protections is a requirement for prosecutors to disclose certain evidence to defendants and their attorneys.

Defendants’ Right to Disclosure of Exculpatory Evidence

Under the U.S. Constitution, prosecutors are required to disclose evidence that is helpful to the defendant, regardless of whether the defendant makes an explicit request. The Supreme Court has stated that disclosure of material, exculpatory, and impeachment evidence is critical to a fair trial and, as such, a Constitutional guarantee. When prosecutors have such information, they must disclose it prior to trial.

In addition to this fundamental Constitutional protection, government attorneys also have an ethical obligation to share exculpatory evidence with defense counsel. The courts instruct government attorneys to favor disclosure over non-disclosure, and prosecutors who withhold such evidence face the risk of both being sanctioned by the courts and having their convictions overturned.

Consider an example: During a federal drug investigation, an FBI agent files a report stating that she cannot be certain that the defendant was involved in a criminal transaction, but only believes so based upon circumstantial evidence. Must the prosecutor disclose this to the defendant? Yes. Disclosure of the report would be mandatory, since the lack of identification presents a reasonable probability of acquittal at trial.

Must Prosecutors Also Disclose Witnesses?

The law governing disclosure of government witnesses differs from the law governing disclosure of exculpatory evidence. Unlike such evidence, the government is not automatically required to disclose the identity of witnesses prior to trial. With regard to disclosing witnesses, the Victim and Witness Protection Act of 1982 gives prosecutors discretion, particularly in cases where they reasonably believe that disclosing a witness’s identity could endanger his or her safety. Part of this discretion includes the option to disclose witnesses’ names, but not their locations. To protect the integrity of the judicial process, prosecutors can also put witnesses under special protection pursuant to 18 U.S.C. Section 1514 and similar provisions.

In practice, prosecutors frequently balance the risk of disclosing witnesses with the goal of obtaining a quick resolution. For example, if a defendant already suspects that several acquaintances are willing to testify against him or her, disclosing those acquaintances as government witnesses could increase the likelihood of the defendant accepting a plea agreement prior to trial.

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This information has been prepared for informational purposes only and does not constitute legal advice. This information may constitute attorney advertising in some jurisdictions. Reading of this information does not create an attorney-client relationship. Prior results do not guarantee similar future outcomes. Oberheiden, P.C. is a Texas LLP with headquarters in Dallas. Mr. Oberheiden limits his practice to federal law.