Philadelphia associate Tracy Schloss’s article , “Know the Prosecution's Brady Disclosure Obligations,” was published in Law360 on November 5, 2012.
Under the U.S. Supreme Court’s landmark decision in Brady v. Maryland, the government has a legal obligation to turn over evidence in the government’s possession that is favorable to a criminal defendant.
The DOJ has also acknowledged that its prosecutors must determine whether other agencies’ investigative files contain Brady evidence that must be produced to the defense “in complex cases that involve parallel proceedings with regulatory agencies.”
Tracy discusses two recent Second Circuit decisions that provide further guidance regarding when parallel investigations are “close enough” to trigger Brady’s disclosure obligations.
In United States v. Gupta, the trial judge found that DOJ prosecutors must review memoranda from a parallel SEC investigation for possible Brady material. In United States v. Mahaffy, the United States Court of Appeals for the Second Circuit vacated a series of securities fraud convictions, finding that prosecutors violated Brady by failing to disclose favorable evidence contained in deposition transcripts from a parallel SEC investigation.
Tracy says criminal defense attorneys can learn valuable lessons from these decisions. First, before trial, defense counsel should carefully consider whether other government agencies have conducted parallel or joint inquiries prior to or during the criminal investigation.
Second, joint fact-gathering activities by government agencies may trigger a prosecutor’s obligation to search the files of agencies coordinating their inquiries with DOJ for Brady material.
Lastly, the two cases highlight the continued disconnect between pre- and post-trial interpretations of prosecutors’ Brady obligations.
Tracy also notes that, “Perhaps the overarching lesson here is that prosecutors won’t find Brady material in civil investigative files unless defense attorneys make them look.”
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