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Between Brady Discretion And Brady Misconduct, Bennett L. Gershman
Between Brady Discretion And Brady Misconduct, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
The Supreme Court’s decision in Brady v. Maryland presented prosecutors with new professional challenges. In Brady, the Supreme Court held that the prosecution must provide the defense with any evidence in its possession that could be exculpatory. If the prosecution fails to timely turn over evidence that materially undermines the defendant’s guilt, a reviewing court must grant the defendant a new trial. While determining whether evidence materially undermines a defendant’s guilt may seem like a simple assessment, the real-life application of such a determination can be complicated. The prosecution’s disclosure determination can be complicated under the Brady paradigm because the …
Litigating Brady V. Maryland: Games Prosecutors Play, Bennett L. Gershman
Litigating Brady V. Maryland: Games Prosecutors Play, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
By any measure, Brady v. Maryland has not lived up to its expectations. Brady's announcement of a constitutional duty on prosecutors to disclose exculpatory evidence to defendants embodies, more powerfully than any other constitutional rule, the core of the prosecutor's ethical duty to seek justice rather than victory. Nevertheless, prosecutors over the years have not accorded Brady the respect it deserves. Prosecutors have violated its principles so often that it stands more as a landmark to prosecutorial indifference and abuse than a hallmark of justice. Moreover, as interpreted by the judiciary, Brady actually invites prosecutors to bend, if not break, …
Misuse Of Scientific Evidence By Prosecutors, Bennett L. Gershman
Misuse Of Scientific Evidence By Prosecutors, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
The prosecutor's misuse of scientific evidence to charge and convict has not been sufficiently examined. Courts and commentators critiquing abuses of scientific evidence in criminal cases rarely focus on the prosecutor's role in the process. Issues typically discussed are the questionable nature of the evidence, the controversial manner in which the evidence was acquired and tested, whether the expert arrived at her conclusions in a scientifically reliable manner, and whether the expert's courtroom testimony was false or misleading. The prosecutor's control over and manipulation of the scientific evidence to shape the fact-finder's evaluation of the facts and to persuade the …
Prosecutorial Misconduct In Presenting Evidence: "Backdooring" Hearsay, Bennett L. Gershman
Prosecutorial Misconduct In Presenting Evidence: "Backdooring" Hearsay, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
Rules of evidence are designed to bring about just and informed decisions. One of these rules, the hearsay rule, is designed to ensure that juries receive reliable evidence, and that out-of-court statements ordinarily are inadmissible. Prosecutors are well aware of these evidentiary restrictions, but occasionally seek to circumvent them. The author describes methods used by some prosecutors to manipulate the hearsay rule and thereby distort the truth-finding process of the trial.
The Right To Evidence, Bennett L. Gershman
The Right To Evidence, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
Although its theoretical basis may be disputed, nobody questions the proposition that a person charged with a crime has a constitutional right to present a defense. Presenting a defense naturally requires access to proof. Access includes not only the availability of evidence, but also its permissible use. Consider some examples: A defendant wants to testify, but his lawyer's threats drive him off the stand. A witness who might be expected to give favorable testimony for the defense appears at trial but refuses to testify. A defense witness wants to testify, but because the defendant failed to notify the prosecutor about …
Proving The Defendant's Bad Character, Bennett L. Gershman
Proving The Defendant's Bad Character, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
The classic study of the American jury shows that when a defendant's criminal record is known and the prosecution's case has weaknesses, the defendant's chances of acquittal are thirty-eight percent, compared to sixty-five percent otherwise. Because of the danger that jurors will assume that the defendant is guilty based on proof that his bad character predisposes him to an act of crime, the courts and legislatures have attempted to circumscribe the use of such evidence. Some prosecutors, however, although well aware of the insidious effect such prejudicial evidence can have on jurors, violate the rules of evidence, as well as …