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DSK Rape Case Highlights Important Issue that Few Prosecutors Take Seriously – BRADY MATERIAL

The reported collapse of the Dominique Strauss Kahn rape case highlights an important principle in criminal procedure that few prosecutors take seriously but that has experienced criminal defense lawyers tearing their hair out. Prosecutors MUST turn over evidence that the defendant is not the perpetrator of the crime to the defense. This disclosure must be done early and is a continuing obligation on the part of the prosecutor’s office. The material that must be turned over is commonly referred to as Brady Material and is generally counter-intuitive in our adversarial system of justice.

Prosecutors often do not take this obligation seriously even though cases have been dismissed based upon the failure to turn over such material and prosecutors may be personally sanctioned for their failure to turn over Brady Material. For example, in Matter of Stuart, 22 A.D.3d 131 (2nd Dept. 2003) a prosecutor was suspended for deceiving the Court about the existence of Brady material and the attorney Disciplinary Rules quite specifically require prosecutors to make such disclosures. See DR 7-103.

The term Brady Material is quite broad and requires disclosure of a wide array of information. This information can include:
a. evidence which bears upon the guilt or innocence of the defendant but also the severity of any sentence that may be imposed;
b. records of previous arrest of the victim or witness or any history of immoral, vicious or unethical conduct by a witness;
c. any false statements made by a witness to law enforcement or to the grand jury;
d. any evidence, testimony, transcript, statement or information indicating that any prospective prosecution witness on any occasion gave false, misleading or contradictory information regarding the charge;
e. any mis-identification of the defendant of any information demonstrating an ability of a witness to identify the defendant as the perpetrator of the crime;
f. any history of mental disease or defect, emotional disturbance, or substance abuse of any potential witness; and
g. any malfunction of any testing equipment or any differing results in any scientific testing.

While this list is not exhaustive it gives a general idea of the types of exculpatory information which is required to be turned over to the defense. This requirement in New York not only is codified in the New York Criminal Procedure Law but also has its derivation from the United States Constitution. It is a basic principle of our system of justice that Brady material be turned over promptly by the District Attorney’s Offices. While the Manhattan District Attorney’s Office should be applauded for the prompt disclosure in the Dominique Strauss Kahn case more prosecutors have to receive training in complying with this basic principle and criminal defense attorneys need to hold prosecutors’ feet to the fire in this regard.

If you or a loved one is involved in a criminal case where the prosecutor has withheld exculpatory material you should immediately bring this information to your attorney’s attention. If you have any questions about this important right please contact this office.