LAW - Case Preparation

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Module 6 - Homework Assignment

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This paper was prepared for [INSERT COURSE NAME], Module 6 - Homework Assignment taught by [INSERT INSTRUCTOR’S NAME].

Module 6 - Homework Assignment

The landmark decision of Brady v. Maryland, 373 U.S. 83 (1963).Brady v Maryland  in 1963 is perhaps one of the most significant Supreme Court decisions to ever impact the criminal justice system. It was a United States Supreme Court case in which the prosecution had withheld from the criminal defendant certain evidence. The defendant challenged his conviction, arguing it had been contrary to the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In other words, the Supreme Court ruled that the government has a duty to disclose material evidence to the defense, which could tend to change the outcome of a trial. It placed an affirmative constitutional duty on a prosecutor to disclose exculpatory evidence to a defendant.

Although this duty has been extended to police agencies through case law, which required law enforcement agencies to notify the prosecutor of any potential exculpatory information, many law enforcement agencies nationwide have failed to train their officers on their obligations to disclose exculpatory material as a result of the Brady decision. This exculpatory evidence, often referred to as “Brady Material,” could tend to prove that the accused party is innocent or cast doubt of their guilt. What does this mean in realistic terms for law enforcement officers? It means that it is the prosecutor, under Brady, who must decide if the information is exculpatory and whether or not it must be disclosed to the defense.

Another case in 1972, Giglio v. United States, 450 U.S. 150 (1972).Giglio v United States, expanded the Brady decision requiring prosecutors to provide information to the defense counsel which could tend to impeach a witness. For example, if a witness is motivated to testify in exchange for a lighter sentence, that information must be disclosed. This includes information about the credibility and veracity of the

Module 6 - Homework Assignment

testimony of police officers. If an officer has a past record of falsifying reports or other conduct which could impact their truthfulness, the Giglio Case requires that the prosecutor

provide the defense with that information.

The best defense against the civil litigation filed as a result of Brady v Maryland is to ensure that all officers have been properly trained on their obligations and duty to disclose exculpatory material, the department has a policy which requires that officers document exculpatory information and provide it to the prosecutors, and that the department inform investigators via training and policy concerning their obligations as a result of the Giglio case, including informing prosecutors of information which could impeach the testimony of their officers. Law enforcement agencies should reach an agreement with their prosecutors on the best mechanism for handling the Giglio issues involving police officers.

The Jenks Act is a federal law that applies to cases in federal court and governs production of statements and reports of prosecution witnesses during federal criminal trials. It provides that a government prosecutor can be required to produce a verbatim statement/report made by a government witness until a witness is testified. This Act was based on the principle that the material used in federal criminal prosecution in the U.S. is considered to be evidence. The materials usually consist of documents relied upon by government witnesses who testify at trial. Typically, it may be either police notes, memoranda, reports, summaries, letters or even verbatim transcripts used by government agents/employees to testify at trial.

Once the government witness testifies, upon a motion by a defendant, the courts generally require the government to produce any statement of the witness in their possession relating to the subject matter. When it comes to "self-incrimination," you've probably have heard the term,

Module 6 - Homework Assignment

"pleading the Fifth." It seems that most Americans know they have the right not to answer police questions wile either in custody and/or court. The right against self-incrimination is spelled out in the Fifth Amendment to the U.S. Constitution and also extends to state and local jurisdictions. This simply means that no person shall be compelled in any criminal case to be a witness against themselves.

As with most other constitutional rights, it is subjected to interpretation by the courts and often inspires some type of fierce debate. A lawyer who hears these words is likely to feel that the witness is unfairly using this right to cut off a litigant’s need to discover evidence. Depending on the importance of the witness, such a deprivation can seriously undermine a party’s ability to prove its case. Yet anticipating and preparing for invocation of the Fifth Amendment may enable a lawyer to avoid a stalemate, or even use the claim of privilege in a way that advances a client’s case. Preparation for invocation of the privilege does not need to end the deposition, or mean that the witness is of no value to your case.

Deposing counsel who has anticipated the possible invocation of the Fifth Amendment should be prepared, at the first utterance, to start certain inquiries, the responses to which will either cause the deponent to decide to answer substantive questions, or lay the groundwork for later helpful use of the transcript. The determination of what answers may incriminate or tend to incriminate cannot be left solely up to the witness but is a matter which requires the exercise of the sound discretion of the trial court under all the circumstances of the case. Trusting in the court’s discretion is fine in principle, but at a deposition, there will rarely be a judge on hand to exercise that discretion, leaving the litigants to some future remedy such as a motion to compel, followed by judicial review if the result of the motion is adverse.

Module 6 - Homework Assignment

In civil actions, however, there is no prosecutor on hand. The issue then shifts to whether 3 Marchetti v. United States , 390 U.S. 39, 453, 88 S. Ct.. 697, 705, 19 L. Ed. 2d 889 (1968)."the claimant is confronted by substantial and ‘real,’ and not merely trifling or imaginary, hazards of incrimination." The lawyer who understands the limits on the Fifth Amendment’s use by a witness or a party opponent is well equipped to limit the harm such an invocation can do in a

particular case. Also, the lawyer may be able to neutralize its effects or attain a significant benefit before a jury as the result of careful preparation and deft questioning, and will be well prepared to offer correct and complete advice to a client considering use of the Fifth Amendment’s testimonial protection.