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  1. #1

    Default Brady Material

    My question involves criminal law for the state of: Indiana

    Scenario: State witness is concerned about testifying at upcoming trial due to their drug usage coming to light. Witness contacts DA handling the case and expresses their concerns and discloses they use drugs. DA responds with something like, 'What you do on your own time is your business.' Witness is left with impression that they won't get into trouble for their testimony.

    At trial, the witness's drug usage, if discovered, would come into play because the effects of their using could explain an odor that is currently attributed to the defendant in the probable cause affidavit.

    Is the DA required to disclose any of this to the defense? If yes, how long after said conversation does the DA have to disclose this to the defense, what is considered timely? I'm not concerned with any issues the witness may or may not run into.

  2. #2
    Join Date
    Sep 2010
    Posts
    19,431

    Default Re: Brady Material

    Well, if the item rises to the level of potentially exculpatory, then you are right by Brady it is required to be disclosed. Indiana doesn't have a statutory timeline for disclosure in their rules. All of this is worked out during the preliminaries. Many courts have standing discovery time limits in their standing rules and these may be modified by motion by one side or the other.

    Who are you in all this?
    Are we talking misdemeanor or felony, the trial process (including such disclosures) is different.
    Is this "odor" issue relevant to the actual case against the defendant, or was it just used to make the probable cause for the arrest or search? If the latter, it may not be particularly relevant whose odor it was.

    Why aren't the people talking to an attorney about this? Generally, it's a bad idea to go mouthing off about crimes you've committed in front of people who are not representing your interests (specifically not the prosecutor or the police).

  3. #3

    Default Re: Brady Material

    Thank you for your response. I am close to the defendant. Entry level felony charge. My hunch is the odor statement (made by the investigating officer) was used to establish probable cause but because the statement exists, it might have to be addressed at trial. The item noted is helpful to the defense in addressing this. While I see no benefit to the case in discovering the DA not disclosing something that should have been disclosed, I do find it troubling, especially since this would be the second time in this case exculpatory evidence was not disclosed. This instance will be discussed with the Public Defender just as the first instance was.

    In the first instance, police directed state's witness to obtain a drug test at their doctor. A urine test was performed at a hospital with a negative test result. While a positive test result would have supported the state's case, the negative result tends to negate the defendant's guilt. Nothing in the initial discovery mentioned anything about the drug test, but the defendant was aware of it's existence through credible gossip. Defendant informed Public Defender of it's existence and assumed it would be included in discovery. Only discovery was a couple of generic arrest forms with brief witness statements to police that came with the charging information that was provided at the initial hearing. Public Defender asked DA about the drug test and DA stated they weren't aware of any. At one point, the Public Defender doubted it's existence. After considerable investigation (by me), where the test was performed was established and Public Defender issued a subpoena to the hospital for the records which they ultimately produced. All of this significantly delayed evaluating the test details for trial preparation.

    Public Defender indicated there was really no recourse for what, on the surface, appeared to be withholding exculpatory evidence. Police didn't inform the DA of their direction to the witness regarding the drug test so the DA was not aware of it. And since defendant was able to ultimately obtain the test results, no harm no foul...

    While I'll wait and see what the Public Defender has to say, I'm concerned by these two instances and looking for input on whether or not something like this should be reported to the state's disciplinary commission independent of the Public Defender or are my expectations of how the system should work misguided?

  4. #4
    Join Date
    Sep 2005
    Location
    California
    Posts
    20,496

    Default Re: Brady Material

    Quote Quoting EasilyDistracted
    View Post
    Thank you for your response. I am close to the defendant. Entry level felony charge. My hunch is the odor statement (made by the investigating officer) was used to establish probable cause but because the statement exists, it might have to be addressed at trial. The item noted is helpful to the defense in addressing this. While I see no benefit to the case in discovering the DA not disclosing something that should have been disclosed, I do find it troubling, especially since this would be the second time in this case exculpatory evidence was not disclosed. This instance will be discussed with the Public Defender just as the first instance was.
    If the odor was used to establish probable cause, then it is certainly something to be covered in court. I assume that given its weight in the matter, this was mentioned in the report?

    In the first instance, police directed state's witness to obtain a drug test at their doctor. A urine test was performed at a hospital with a negative test result. While a positive test result would have supported the state's case, the negative result tends to negate the defendant's guilt. Nothing in the initial discovery mentioned anything about the drug test, but the defendant was aware of it's existence through credible gossip. Defendant informed Public Defender of it's existence and assumed it would be included in discovery. Only discovery was a couple of generic arrest forms with brief witness statements to police that came with the charging information that was provided at the initial hearing. Public Defender asked DA about the drug test and DA stated they weren't aware of any. At one point, the Public Defender doubted it's existence. After considerable investigation (by me), where the test was performed was established and Public Defender issued a subpoena to the hospital for the records which they ultimately produced. All of this significantly delayed evaluating the test details for trial preparation.
    Was the hospital test mentioned in any report? If so, then I don't know that there was a disclosure violation there. And if the test was for medical purposes and not for evidence, then an argument might be made that no exculpatory evidence was in the prosecutor's possession. The prosecution can only provide in discovery those things in its possession. Depending on why the tests were done at the hospital, it may not have been an issue. It also matters what the charges are. Is he being charged for being under the influence? For possession? For sales or distribution? Unless they are arguing that he was under the influence, then the chemical test records are likely moot.

    In the end, the defendant managed to provide this info to his attorney and they got those records so he can present the matter.

    Public Defender indicated there was really no recourse for what, on the surface, appeared to be withholding exculpatory evidence. Police didn't inform the DA of their direction to the witness regarding the drug test so the DA was not aware of it. And since defendant was able to ultimately obtain the test results, no harm no foul...
    The attorney is in the best position to evaluate the issue give he is in possession of all the facts and, presumably, has knowledge of state law in this area.

    While I'll wait and see what the Public Defender has to say, I'm concerned by these two instances and looking for input on whether or not something like this should be reported to the state's disciplinary commission independent of the Public Defender or are my expectations of how the system should work misguided?
    You do not want to muddy the waters of your friend's criminal case. This is an issue for HIM and for his attorney. You are a legal non-entity here.
    **********
    Retired Cal Cop Sergeant & Teacher

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM

  5. #5
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Brady Material

    You haven’t explained how the states witness’ drug test could be exculpatory. He isn’t on trial and his drug use, or lack of, doesn’t appear to be relevant to your friends defense. It may allow for a challenge of his credibility but I don’t see it exonerating the defendant. I’m not sure why you believe a positive test would benefit the state.

    your suggestion that a drug odor could be attributed to the witness doesn’t save the defendant. If the odor was in the area of the defendant and the witness, presuming they were in close proximity to each other, gives an argument that there was probable cause to detain and search either or both parties.

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