Enforcing Brady Violations

How to Hold Prosecutors Accountable

Los Angeles Criminal Lawyer

Being a prosecutor is a powerful position. Prosecutors have the ability to greatly influence convictions and sentencing. In most instances, they have all the power, because most criminal defendants end up taking a plea instead of going to trial. However, it is often argued that there are insufficient mechanisms which hold prosecutors accountable for instances when prosecutorial ambitions drive them to obtain a conviction against an innocent person. In addition, prosecutorial misconduct may result in a criminal defendant failing to receive the safeguards of a fair trial – a right that all American citizens are entitled to – whether they committed the crime or not.

First, it is important to understand how prosecutor misconduct is regulated. Each state enacts its own ethical rules of responsibilities for the lawyers in that state. All states have separate ethical rules that prosecutors must abide by. One of those rules is based on a very important Supreme Court case called Brady v. Maryland. In Brady, the prosecution failed to turn over statements from Brady’s co-defendant that had exculpatory value. In other words, the prosecution pursued a conviction against Brady even though it had knowledge that Brady may not have committed the crime, and hid that information from the defense. As a result of that case, prosecutors are now required to turn favorable evidence over to defense counsel.

Most states have rules that are even stricter than Brady – but all prosecutors are at least held to the Brady standard, requiring “material evidence” of guilt to be handed over to the defense. The problem here is that the definition of “material” is left to the discretion of the prosecutor. In other words, the prosecutor may withhold the evidence, and later claim it is not material to guilt or innocence.

One huge problem that is applicable only to California is that California is the only state that has not adopted a rule with language similar to Rule 3.8 of the American Bar Association’s special rules of ethics for prosecutors. While California does have separate rules for prosecutors, requiring them to turn over exculpatory information, California has not adopted certain subsections of the rule. Specifically, Rule 3.8(d), (g), and (h) have yet to be adopted by the California rules of ethics. These subsections require the prosecution to make timely disclosure of exculpatory information, to disclose new credible information regarding the defendant’s innocence, and to remedy any convictions that the prosecutor believes are erroneous. Thus, while California rules only hold prosecutors to the Brady standard, all other states have adopted more stringent rules on prosecutors’ duties.

Because prosecutors may not generally be criminally punished for acts done in furtherance of their prosecutorial duties, the only logical way to regulate prosecutor conduct is through rules of ethics. There are rare instances where egregious prosecutorial misconduct may lead to personal liability, but those instances are few and far between. This means that the only punishment prosecutors are likely vulnerable to is state bar discipline. When an attorney is disciplined, the discipline may be public depending on the severity of the violation. However, oftentimes the punishment is not public, and the prosecutor simply receives a slap on the wrist. While the rules of ethics are an arguably effective safeguard, defense counsel in California is the primary safeguard. As an advocate for the defendant, defense counsel should conduct a thorough investigation, ensuring that no evidence is being withheld from the prosecution.

It is critical to retain an experienced criminal defense attorney as soon as possible. The earlier the attorney makes contact with the district attorney, the more likely it is that the case will result in a favorable outcome for the defendant. A good criminal defense attorney will present mitigating circumstances, including the lack of the defendant’s criminal history, as well as highlighting weak points in the prosecution’s case.

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IF YOU OR A LOVED ONE HAS BEEN ARRESTED OR CHARGED WITH A CRIME, CONTACT THE LAW OFFICES OF NICHOLAS LONCAR NOW FOR A FREE CONSULTATION WITH A LOS ANGELES CRIMINAL DEFENSE LAWYER.
213-375-3775

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Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
Nicholas.Loncar@iDefendLosAngeles.com
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com

FREE CONSULTATIONS  213-375-3775
LOS ANGELES CRIMINAL DEFENSE ATTORNEY

Published By: Nicholas Loncar
Written by: Lauren Noriega