The Brady Dilemma

Brady evidence is any evidence that shows the accused person did not commit the crime. It can be such evidence as an eyewitness identifying someone other than the accused as the perpetrator or even that a testifying witness received a plea deal to testify that would affect their credibility.

The biggest requirement is that when the prosecutor finds out that Brady evidence exists, it must be turned over immediately to the defendant. Seems simple enough, right?

But what about this scenario?

A witness comes forward in a murder case. She is terrified to be in your office and makes that known many times. She lives next door to where the murder occurred, which is well known gang country. She looked out her front window and watched an argument between the defendant and victim, and then saw the defendant shoot the unarmed victim. She is willing to testify, but demands that her identity not be known until the trial so that she has time to move. She knows that once her identity is known, she will be a gang target.

Sounds reasonable, right? But what if she also said that she saw the victim threaten the defendant with a gun thirty minutes before the murder. She still says that the victim did not have a gun when the defendant killed him, but he had one and threatened the defendant earlier that day.

This is Brady evidence because it will aid the defendant in a self-defense claim. As stated earlier, we are required to turn Brady evidence over immediately. But doing that in this case will jeopardize the witness' life even though she has evidence that might help the defendant.

What is a prosecutor to do? Turning over a redacted statement without identifying information won't work because the defendant needs the opportunity to investigate and speak with the witness.
Turn it over immediately? Delay until trial?

These are the type of hard choices you must face as a prosecutor. We must balance a person's constitutional rights with that of the safety of the community every day.

If there is a credible threat, the answer is to turn the statement and the fear of retaliation over to the judge for an in camera (judge reviews it without either party present) review immediately. Then, the judge needs to decide the appropriate course of action. This will usually involve turning the material over with at least the witness' name to the defense attorney, but the judge might delay it until the witness can move or be moved safely. If the threat can be verified, we would usually help the witness move to a safe location, but still make the witness available to the defense attorney.

What do you think is appropriate?

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