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Pre-Trial: Discovery (I) (Government Disclosures (Witnesses (In Practice…

- - - - The defendant cannot learn the identity of state witnesses or review their statements, until after direct examination. FRCP 16.
    - - Courts retain the discretion to allow broader discovery and can order the government to give full disclosure or to hand over a witness list to the defense.
      - By custom and state rule, most prosecutors hand over a witness list during informal discovery.
  - - - Under the Due Process Clause, the prosecutor does not have a duty to disclose exculpatory evidence to the defendant, unless she asks for it. U.S. v. Agurs.
    - - TYPES
        
        Knowing / Reckless
        
        Failure to Disclose
        
        The omission must be sufficiently significant to have denied the defendant a "fair trial." U.S. v. Agurs.
        
        Evidence is “material” if there was a reasonable probability that disclosure would have changed the outcome. U.S. v. Bagley.
        
        Applies when the witness’s testimony was the sole link to implicate the defendant. The type of evidence matters. Smith v. Cain.
        
        The prosecutor's knowing use of perjured testimony is "bad faith." Mooney v. Holohan.
        
        Failure to Preserve
        
        The prosecution does not have to preserve potentially useful evidence for the defendant's case. Arizona v. Youngblood.
      - REMEDY
        
        Case reversal.
      - A duty arises to disclose when the evidence clearly supports innocence. Brady v. Maryland.
        
        There must be a reasonable doubt in the defendant's guilt that did not exist before.
        
        The court looks at the evidence's "cumulative" effect. Kyles v. Whitley.
        
        "Exculpatory materials" include evidence that can be used to impeach adverse witnesses.