If you are accused of a crime, it is well-established that to secure a conviction the prosecution must prove your guilt under the standard that it is “beyond a reasonable doubt” that you committed the offense. The means by which a prosecuting attorney does this is by presenting physical and circumstantial evidence as well as witness testimony; prior to the trial the collection of evidence and the identification of witnesses is central to the government’s preparation of its case against you, as it is your defense attorney’s responsibility to secure evidence and witness testimony in your favor.

What happens, though, if the government finds evidence that could be favorable to your defense that your attorney is not aware of? This is more than a hypothetical possibility: the government has a considerable advantage in evidence-gathering and witness location through its police officers and investigators that your attorney cannot match on his own. What responsibility does the prosecution have to inform your attorney of evidence that might weaken its case against you? What duty does the prosecution have to reveal to your attorney possible biases, interests or other characteristics of its witnesses that might reduce their credibility?

It used to be, up to the early 1960s, that the government had only a limited obligation to “help” the defense. The basic rule was that the criminal justice system is adversarial, and courts took that to mean that it was mainly the responsibility of the defense attorney to find exculpatory evidence or ways to attack the stories that government witnesses might tell on the stand. The prosecution had a duty not to lie to the court, but that was about all. It was not required to inform the defense of weaknesses in its evidence or its witnesses.

That has since changed as the result of a series of cases decided by the US Supreme Court beginning in 1963, through which under the due process protection of the 14th Amendment to the US Constitution it has forced the prosecution to be more forthcoming in providing to the defense exculpatory evidence and information about its planned witnesses. Today, the general rule is that if the prosecution discovers “material” information that is possibly favorable to the defense, it has an affirmative duty to present that information. What is material is a question of if evidence that the prosecution does not share with the defense would call into question whether the trial was fair; although criminal justice is still “adversarial” in nature, the duty of the prosecution is to see that justice is done rather than winning at any cost.

Despite the development of the obligation of the government not to sit on exculpatory evidence, that does not mean that the problem of it doing just that has gone away. In appeals of criminal trial convictions, the government’s failure to disclose facts favorable to the defense ranks second only to claims of ineffective representation by the defense attorney in its frequency.

Requiring the prosecution to turn over evidence and information about its witnesses that might be favorable to the defense does not mean that the prosecution must do the defense attorney’s job for him. Your attorney still has a separate duty to represent you to the best of his ability, and that means that he needs to make requests on the prosecution to turn over that evidence and information. This can include:

– reports that contradict reports that the government plans to use against you;
– information that calls into doubt (“impeaches”) the character and truthfulness of government witnesses; and
– evidence that reduces the impact of the government’s physical or circumstantial evidence.

Aside from US Supreme Court case holdings, state laws and regulations also require prosecutors to learn of and to disclose exculpatory evidence. In Oklahoma, the Code of Professional Responsibility places on prosecutors the duty to disclose in a timely way all evidence or information they know about that would tend to negate the guilt of the defendant or to at least reduce the seriousness of the criminal charges (note that this provides more protection than the Supreme Court decisions do, because there is no “materiality” requirement under the rule here).

The duty of the government not to hide evidence that could help your defense is a key element in helping your attorney to prepare the best possible defense against a criminal charge, but your attorney in turn must know what questions to ask to the prosecution to make sure that it follows that duty. The effective use of this combination can make a significant difference, as a recent story from Tulsa suggests when the government’s disclosure of new evidence to the defense led to charges of sexual assault against a child being dropped altogether.

If you or a loved one has been charged with a crime, contact the criminal defense attorneys at the Hunsucker Legal Group for your free consultation.