Brady Violations Gain Judicial Attention as well as Proposed Solutions
Friday, September 20, 2019
CACJ's President, Jeff Thoma, was recently interviewed by John Roemer for the Daily Journal regarding Brady Violations. They discussed a "plan to rein in prosecutors who hide favorable evidence from the defense in criminal trials [which] could be gaining traction." Called A Brady colloquy, during pretrial hearings, before the defendant enters a plea, judges could ask prosecutors a short series of questions, on-the-record, to determine if undisclosed exculpatory evidence exists.
Jeff Thoma remarked that "Brady violations [are] also on the state Supreme Court Chief Justice Tani Gorre Cantil-Sakauye's mind this month," and that in "meeting with [her] he pointed out that California is the only state that has not adopted the American Bar Association's model rule of professional conduct 3.8 on the special responsibilities as a prosecutor. She assured me that her staff would review it, as we all agreed that this was an issue that needs to be addressed in some manner."
Ninth U.S. Circuit Court of Appeals Judge Alex Kozinski supports the idea; putting prosecutors on notice that withholding pro-defense material violates the Constitution.
"For Thoma, the Brady colloquy idea resonated. Jason Kreag, [a Law Professor at the University of Arizona College of Law,] proposed that if trial judges refuse to ask Brady-oriented questions of the prosecutor, defense lawyers should put a statement on the record about what material they requested and what they got in response."