Eve of Trial Evidence

Defense Attorney: “I am moving to suppress the officer’s testimony.”

Prosecution: “Why? We disclosed the evidence as soon as we got it.”

-Flashback 12 hours-

It is the night before trial and your email shows a new message.  It is from the attorney you will be in trial with – tomorrow morning.   He writes, “We just realized that there is some evidence we intend use tomorrow that you are unaware of.”  It turns out the officer who arrested your client had a misdemeanor DUI conviction in his past.

In your mind this is front page news.  You counterpart plainly thinks it belongs in the gossip columns – not in a courtroom.

-Flashback 12.2 hours-

 Prosecution: “Why do think this even comes into evidence?”

The question is revealing.  Here lies the problem in your mind.  To you, it is obvious why this disclosure matters.  It is also obvious to you why it is detrimental to your case that it was merely disclosed on the eve of trial.  However, you must decide if your response will be sarcastic in nature or educational.  The former feels so satisfying, but the latter is much more effective.

 Why this evidence disclosed on the eve of trial matters?

What we have what is known as a Brady issue.  Under the U.S. Supreme Court decision of Brady v. Maryland, evidence affecting the credibility of a police officer witness may be exculpatory evidence and should be given to the defense during discovery.

So, how might a misdemeanor DUI conviction in an officer’s past be Brady material? Here are some things you ask the prosecutor to consider:

  • What if, in the undisclosed police reports of the officer’s arrest, he denied drinking any alcohol and later a chemical test contradicted his statement – won’t that be conduct bearing on his truthfulness?  What if, such an untruthful statement was the reason the prior police department ultimately fired him?
  • What if, in the undisclosed police reports of the officer’s arrest, the officer told his arresting officer something like “come on, we both know these field tests are ‘BS’ anyway?”

In addition, under another U.S. Supreme Court decision, Kyles v. Whitely, the prosecution has a duty to look for such information.  This prevents the “ignorance is bliss” defense.

Arizona Criminal Procedure also prohibits such late disclosure

Next you ask the prosecutor to see their affidavit as to why the disclosure was so late. Rule 15.6(d) of the Arizona Rules of Criminal Procedure states:

Disclosure After the Final Deadline. A party seeking to use material and information not disclosed at least seven days prior to trial shall obtain leave of court by motion, supported by affidavit, to extend the time for disclosure and use the material or information…

Of course the prosecutor does not have an affidavit.  The reason being, they could have discovered this information prior to the seven-day deadline.  They just forgot to look.
A reoccurring problem

The above scenario is based on recent events.   “Eve of Trial Evidence” is becoming an increasing problem.  Even when the prosecution is well intended, and turns the evidence over as soon as they get it, it does not solve the problem.  You can’t get a fair trial when you find out about exculpatory evidence on the eve of trial.

Moreover, what a waste of resources this problem creates.  If prosecution actually looks for the evidence when they required to, which was easily discoverable to them, the case probable gets resolved in less than two months versus a year (and numerous court dates.)  Also, think of the jurors that were brought in for the trial.  They all missed work for nothing because a trial will not go forward when such late disclosures occurs.  In the end, no wins when the prosecution only looks for the exculpatory evidence the night before trial.


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