Category Archives: Evidence

The ABA on Brady

Today the American Bar Association passed a resolution regarding discovery pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Resolution 104A urges judges to prepare a checklist of disclosure obligations for prosecutors.

Brady requires the state produce exculpatory evidence to defense counsel. The state doesn’t always play fair. According to the report in support of the resolution:

A substantial number of verified wrongful convictions have been attributed to the use of testimony or physical evidence that was contradicted or undermined by other evidence in the hands of the prosecution, law enforcement or other government agencies, but was not disclosed to the defense even though it qualified as exculpatory evidence under Brady.

I doubt a checklist is going to fix the problem. It’s an ethics thing. If a prosecutor is not turning over discoverable materials, then that prosecutor is unethical. The fact that the ABA has to address this issue is a sad commentary. Even sadder, is the question of whether a checklist will make a prosecutor ethical?

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Filed under Ethics, Evidence

Bruton is alive and well

In 1968, the U.S. Supreme Court decided Bruton v. United States. It stands for the proposition that codefendant statements can’t be used at trial unless the codefendant testifies. The following is a good explanation:

When two defendants, A and B are tried jointly, and defendant A makes a confession that inculpates defendant B. If defendant A does not testify, then A’s statement against B is inadmissible because B will be unable to exercise his right under the Confrontation Clause to cross-examine A.

In fact, that hypothetical was taken directly from State v. King, a 2006 South Carolina Court of Appeals opinion.

I believe the proper way to make a motion under Bruton is to do it before the jury is sworn. I say this because I believe the proper remedy is to sever the trials or to suppress the statements. Once a jury is sworn, a severance is no longer available.

I tried a case recently in Marion County. Better said, I tried part of a case. There were two codefendants. Each had given statements implicating the other. I made a pretrial motion under Bruton. The trial judge took the motion under advisement, the jury was sworn and we proceeded with the trial.

I’ve never had it happen like that before. Usually the judge rules right away. As a result of the judge’s delay in ruling, one of the remedies (severance) was now gone. Jeopardy has attached and the statements will be admitted, or not. I do get the judge to agree with me that the prosecutor should not mention the statements until the judge has ruled.

I believe the reason for the delayed ruling was in part because of very compelling argument by the prosecutor that Bruton didn’t apply. He cited Lee v. Illinois and Cruz v. New York, two U.S. Supreme Court cases decided in 1986 and 1987 respectively. According to the prosecutor, if the statements contain sufficient interlocking facts, they become reliable and are therefore, admissible.

The problem with that logic is that codefendant’s statements are notoriously unreliable and are absolutely hearsay. Oh yeah, and you can’t cross-examine them. Ultimately, the judge ruled in our favor and the statements were suppressed.

I am now preparing for another trial that is very similar to the one I talked about earlier. Incredulously, the prosecutor just informed me that he will be using the codefendant’s statements against my client. I screamed out to him that Bruton is alive and well. I don’t think he knew what I was talking about.

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I have been away from the keyboard for the last week or so with court and clients. I am reminded of an old question: what do we have plenty of but not enough? The answer of course, is time. It has a way of slipping away. It has been a busy week and my clients will always take priority over the blog.

There are a few issues that I want to write about later this week – police misconduct, bail and an update on Paxton v. UK.  For now, I just want to take notice of a short SCOTUS opinion: Briscoe v. Virginia.


We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massa-chusetts, 557 U. S. ___ (2009).

It is so ordered.

H/T Paul B. Kennedy: The prohibition of trial by affidavit lives on.

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