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UNITED STATES v. FIVE PERSONS

June 21, 1979

UNITED STATES of America
v.
FIVE PERSONS, Defendants



The opinion of the court was delivered by: BIUNNO

At the pretrial conference (F.R.Crim.P. 17.1) of (date deleted) the question of compliance with the standard order of this district, entered at arraignment, was raised. The question focused on par. 1(f), which, at the required conference to be held within 10 days of arraignment, requires the United States to:

"(f). Permit defendant's attorney to inspect, copy or photograph any exculpatory evidence within the purview of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215."

It is well established that neither Brady, nor its predecessors nor its progeny dealt with pre-trial discovery. That subject is dealt with by F.R.Crim.P. 16. Rather, Brady and related cases deal with the constitutional issue of due process and fair trial.

 In Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) there was involved a non-disclosure of a co-defendant's statement that he, Bolbit, rather than defendant Brady, had actually killed the victim in the felony-murder context. Complicating the issue was the effect of a Maryland constitutional provision that in criminal cases, the jury are the judges of law as well as of fact. Compare, for cases charging criminal libel, N.J.Const., 1844 Art. I, par. 5; N.J.Const., 1947, Art. I, par. 6, and see State v. Jay, 34 N.J.L. 368 (Sup.Ct.1871). In any event, the Brady court concluded that the failure to disclose the Bolbit statement went to the issue of guilt, and not merely to punishment as Maryland's high court had ruled.

 The principle of Brady was not new. It was grounded on Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791 (1935), Pyle v. Kansas, 317 U.S. 213, 63 S. Ct. 177, 87 L. Ed. 214 (1942) and two decisions in this circuit U. S. ex rel. Almeida v. Baldi, 195 F.2d 815 (CA-3, 1952), and U. S. ex rel. Thompson v. Dye, 221 F.2d 763 (CA-3, 1955) both of which the Brady court agreed stated the constitutional rule.

 The Brady court expressly quoted with approval the construction in this circuit of Pyle, to mean that the "suppression of evidence favorable" to defendant was itself enough to amount to a denial of due process. Allowing false evidence to go in uncorrected was brought within the same concept in Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959).

 In Giglio v. U. S., 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972) there was involved the specific matter of information going to credibility of a witness. Taliento, an unindicted co-conspirator, was a key witness at trial. On cross-examination he was questioned about implications or promises that he would not be prosecuted and the like. He denied any such factor.

 After conviction, the defense learned of evidence indicating promises not to prosecute, and the failure of the United States to disclose what it had in its possession in this regard was held to have denied due process of law.

 In U. S. v. McCrane, 527 F.2d 906 (CA-3, 1975), the requirements of the Brady rule were applied to evidence affecting credibility of a witness whose reliability is critical to the issue of guilt.

 It is true that in U. S. v. Kaplan, 554 F.2d 577 (CA-3, 1977) the circuit recognized that there is no general constitutional right to discovery in a criminal case, and that the Brady ruling did not create one, citing Weatherford v. Bursey, 429 U.S. 545, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977), and referring to F.R.Crim.P. 16 as the only rule governing discovery before trial.

 However, Rule 16(a)(1)(C) does refer to items "which are material to the preparation of (the) defense", and aside from outright exculpatory items, it is difficult to imagine information more material to the preparation of the defense than credibility items for critical or major government witnesses.

 The government's brief on this point does not deny the duty to disclose a wide variety of items beyond outright exculpatory information. Its disagreement centers on the timing for its disclosure.

 However, the question of timing is not an open question in this district. By its adoption of the standard discovery order entered at arraignment, the judges of this district declared that due process and fair trial materials coming within the Brady rule should be made available before trial and at the required conference within 10 days after arraignment.

 This decision was not a casual one. It was made with full awareness of the implications of the Speedy Trial Act on the ability of the court to process criminal cases in the time spans that Act specifies, not to mention the massive backlog in processing civil cases. The decision was made in recognition of the fact that without pretrial disclosure of everything the standard order specifies, as one of the tools for reducing the number of days of trial, the commands of the Act cannot be met. Without pre-trial disclosure, the court would have no choice but to grant recesses (some 9 ...


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