INVESTIGATING AND OBTAINING DISCOVERY IN A DUI CASE. 

      The prudent DUI defense practitioner should first commence with their own investigation before the compulsory discovery process with the prosecutor as this minimizes the chance that the prosecutor will also obtain the information.  It will benefit the defense because asking for specific information can give the prosecution a window to the defense, and can telegraph what the defense is planning. It is a better practice to seek the desired materials and facts on your own, and then make discovery motions for things you cannot otherwise get. Once the DUI defense practitioner has obtained all of the information and facts through a diligent investigation, the compulsory discovery with the prosecutor should be aggressively pursued.¹  

      One of the tenets of due process in a criminal case is the defense attorney’s own investigation of the facts in the case and the constitutional duty of the prosecutor to disclose and turn over to the defense any evidence which forms a basis for the charge, and anything that exculpatory or potentially exculpatory from an objective standard.  Criminal case discovery finds it origins of constitutional due process under U.S. Const. Amend. V originally, and later Amend. XIV.  Some state constitutions offer even more protection to criminal defendants than the United States Constitution. 

The Brady Doctrine 

      The due process clause of U.S. Const. Amend. V and XIV first sought to provide for a fair process to criminal defendants by a holding a general duty upon the government prosecutor that their duty is to provide a fair process as public fiduciaries, not for the government to win in an “ends justify the means” strategy, Berger v. United States (1935) 295 U.S. 78, 88.  While the duty of the prosecutor to turn over to the defense all exculpatory evidence are known as “Brady Rights” because of the seminal Warren Court decision in Brady v. Maryland (1963) 373 U.S. 83, at least three prior cases from the Court set forth the landmark ruling in Brady, all going to the suppression of false or perjured testimony that was suppressed by the prosecutor in order to obtain a conviction.  

      This doctrine first became a tenet of due process as a “deception of court” in Mooney v. Holohan (1935) 294 U.S. 103, 112, where the Court stated, “It is a requirement that cannot be deemed to be satisfied by mere notice and hearing if a state has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance by a state to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.”   Subsequently in Pyle v. Kansas (1942) 317 U.S. 213, the Court first described the “suppression of favorable evidence,” holding  “Petitioner's papers are inexpertly drawn, but they do set forth allegations that his imprisonment resulted from perjured testimony, knowingly used by the State authorities to obtain his conviction, and from the deliberate suppression by those same authorities of evidence favorable to him. These allegations sufficiently charge a deprivation of rights guaranteed by the Federal Constitution, and, if proven, would entitle petitioner to release from his present custody. This was more fully elaborated where the suppressed false testimony is not corrected by the prosecutor in Napue v. Illinois (1959) 360 U.S. 264, 269 “The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.’² 

      Brady v. Maryland, 373 U.S. 82 remains the seminal suppression of exculpatory evidence/due process case, and is known as the “Brady Doctrine.” Brady involved a murder case in Maryland where the defendant was convicted and sentenced to death. Mr. Brady had admitted to participation of the crime, but that he did not commit the murder. Brady’s co-defendant Mr. Bobbit was tried separately, but Brady was not advised that his co-defendant had admitted to the murder and this statement was suppressed by the prosecutor.  The Court held that this suppression violated Nr, Brady’s right to due process, and those now famous words, “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87.   

      The Brady Doctrine was expanded on in United States v. Agurs (1976) 427 U.S. 97, where the Court held that the prosecution had a constitutional duty to disclose evidence to the defense if the nondisclosure of exculpatory evidence resulted in a fundamentally unfair decision. This duty existed even in the absence of a request by the defense, but conditioned on the evidence being exculpatory and material, with the latter defined as evidence that would create “a reasonable doubt that did not otherwise exist.” Id. at 110. Agurs also set forth three reasons why a conviction would be reversed for constitutional error under Brady: 1) Where previously undisclosed evidence revealed that the prosecution introduced trial testimony that it knew or should have known was perjured, Id. at 103-104; 2) Where the Government failed to accede to a defense request for disclosure of some specific kind of exculpatory evidence, Id. at 104-107; and Where the Government failed to volunteer exculpatory evidence never requested, or requested only in a general way. The Court found a duty on the part of the Government even in this last situation, though only when suppression of the evidence would be “of sufficient significance to result in the denial of the defendant's right to a fair trial.” Id. at 108.  The Agurs Court also suggested three criteria for determining materiality: (1) evidence which may be merely helpful to the defense; (2) evidence which raised a reasonable doubt as to defendant's guilt; (3) evidence which is of such a character as to create a substantial likelihood of reversal.” Id. at 114, fn. 22 

      Materiality of exculpatory evidence was further defined in the third prominent Brady case, United States v. Bagley (1985)  473 U.S. 667.  In Bagley the Court held that “favorable evidence is material, and constitutional error results from its suppression by the government, if there is a “reasonable probability” that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Thus, a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal. Materiality is not a sufficiency of evidence test. One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Once a reviewing court applying Bagley has found constitutional error, there is no need for further harmless-error review. The state's disclosure obligation turns on the cumulative effect of all suppressed evidence favorable to the defense, not on the evidence considered item by item. Id. at 675.