South Carolina Criminal Defense Blog

A judge found that Deputy District Attorney Troy Benson lied under oath about a videotape that was not provided to the defense in a child molestation case, a case in which the alleged victim had also recanted prior to trial. After spending four years in prison, Augustin Uribe's charges are dismissed and he has been released:

"Mr. Benson's numerous acts of misconduct, culminating in his false testimony in this proceeding, strikes at the foundation of our legal system and is so grossly shocking and outrageous that it offends the universal sense of justice to allow prosecution in this matter to proceed,'' Bryan said. "As such, defendant's motion to dismiss on due process grounds is granted.''

Arizona's Supreme Court says that metadata must be disclosed under the state's Freedom of Information Act:

Hidden data embedded in electronic public records must be disclosed under Arizona's public records law, the state Supreme Court said Thursday in a groundbreaking ruling that attracted interest from media and government organizations.

The Supreme Court's unanimous decision, which overturned lower court rulings, is believed to be the first by a state supreme court on whether a public records law applies to so-called ''metadata.''

Metadata can show when a document was created, when it was revised, and who created or revised the document. In the Arizona case an officer who had been demoted requested metadata embedded in a supervisor's notes, which would show whether the supervisor had back-dated the notes to before the demotion.

Whether FOIA applies to metadata is going to be determined by each state. The next question, that I've never heard asked, is whether Brady applies to metadata - and I think that there is no doubt that it does if the information contained in the metadata is exculpatory. For example, when an officer creates or modifies an incident report in anticipation of trial, long after the events that gave rise to the defendant's charges, that would be information the jury needs to hear and it would be critical to cross-examination of the witness.

Would the prosecutor or police voluntarily turn over metadata? Well, no - if they are aware of an issue with a document that would help the defense they are already under an obligation to provide the information. If they're not disclosing the issue with the document they are not going to disclose the metadata proving the issue with the document, either. Metadata will be useful only when the defense already knows or suspects that there is an issue with the document and needs the evidence to prove it. If the prosecution does not provide the information voluntarily it will take a motion to compel and possibly an in-camera review of the material by the trial judge to determine its impeachment value.

Would it be worthwhile to add a request for metadata to Brady motions, and to keep an eye out for situations where officers or other prosecution witnesses have falsified or modified documents prior to trial?

This morning I argued a motion to compel with a municipal court prosecutor, who informed our judge that Brady does not apply to an internal investigation of officers who beat the crap out of my client. The argument was something like: a) it is not in my file, so I do not have to disclose it; b) I purposefully did not look at it, so I would not have to disclose it; and c) the defense has the burden of proving what it is that is in the file before the prosecutor can be forced to disclose it.

I point out that in Kyles v. Whitley the U.S. Supreme Court is very clear that the prosecutor has a duty to seek out Brady material and disclose it when it is in the possession of a government agency, but the prosecutor argues that there is no such duty. Eventually we discover that the pros. has not read Kyles v. Whitley (probably has not read Brady for that matter). The result of the hearing is that the pros. should read the case and then let our judge know if the judge still needs to review the materials.

Later in the day, I get a phone call (followed by a written motion) from the pros., who says that the officers have their own counsel, and that the officers, because they have counsel, have standing to object to the disclosure of the Brady material. So, we will have another hearing on the matter.

The same prosecutor today, in an unrelated trial, argues that an accident report, which contains statements from a witness who is not present to testify, is admissible because a) it is the officer's observations and therefore it is admissible; and b) because they always admit accident reports in the municipal court.

Later, when I tell the jury in closing that they didn't hear any evidence in this case because the pros. didn't call any witness that actually saw the accident occur, the pros. objects, arguing that he has no burden to call the "victim" as a witness and that, since I have commented on their failure to call his "victim," he should now be allowed to comment on the defendant's failure to testify as well.

I understand that for the layperson, the point of all of this may not be clear. There are some basic rules and principles in criminal law (quite a few, actually), that lawyers are (should be?) taught in law school. Here are some:

1) The prosecution has a duty to disclose exculpatory evidence, including direct evidence of innocence and material that can be used for impeachment purposes at trial. The duty is a legal one and an ethical one. When prosecutors ignore this, or rationalize not disclosing, innocent people get convicted of crimes.

2) Hearsay is inadmissible, with some exceptions that are listed for you in the rules of evidence. Police reports and accident reports, which are based on information provided from people at the scene, are no more admissible than the officer's testimony as to what witnesses told him.

3) The burden of proof is on the prosecution.

4) Just to be clear, the burden of proof is not on the defendant.

If you are going to prosecute (or defend, for that matter) criminal cases, no matter how large or small, at a minimum you should read the seminal cases in your area of law. Please, read Brady.

Read Kyles v. Whitley.

Read Miranda v. Arizona.

Read Crawford v. Washington.

Read the cases that interpret those cases, and yes they keep coming and it will never end. But you are a lawyer, you can do it.

And please, read the rules of criminal procedure and the rules of evidence. Don't make shit up when you are arguing to a judge - they often rely on us to give them the law that applies to a given situation, and therefore they rely on us to be truthful and credible. Thanks.

If I am missing something here, please leave a comment and let me know.