There’s an interesting conversation going on over at Sarena Straus’ Prosecutor Post-Script where in a series of posts and comments the author and readers discuss various issues in prosecutorial ethics.

In “Who decides when to prosecute?” she discusses the considerations involved when a prosecutor “overrules” the wishes of a complainant in an assault case. Sarena points out this comes in two forms: victims unhappy with a plea agreement that is too lenient, and ones that don’t want to prosecute the case at all.

The first post sparks a question from a reader: “"It’s interesting to see the thought process behind when to prosecute. What sort of plea deal would you make with someone who was unlikely to be convicted at trial?” Sarena answers the question in part by posing a “typical hypothetical offered by DA’s offices when interviewing prospective ADAs”:

Lets say that you have a one witness case that you are about to take to trial. It is a case where you believe in the defendant’s guilt and where proof beyond a reasonable doubt is possible. Without that one witness, however, you cannot prove the case.

The morning that you are about to start trial, you get a call that your witness died. You go to the courtroom, but before you can tell the judge that you have to dismiss the case, the defense attorney says that his client wants to plead guilty.

Do you take the plea or do you tell him your witness is dead and that you have to dismiss the case?

Since I never interviewed with a County or District Attorney’s Office, hypotheticals like that take me back to my law school days…let me give it a shot.

There’s really two separate questions being asked here (which is what makes it interesting): (1) As a prosecutor, are you required by Brady v. Maryland to disclose the unavailability of witnesses to the defense attorney?  (2) If not, should you anyway?

My off the cuff guess (read: I didn’t bother to research it this morning while writing this post) is that the caselaw interpreting Brady doesn’t require the prosecutor to disclose that information. If anyone out there knows of caselaw to the contrary, please contact me, because it would somewhat put the issue to rest.

(I’d also like to think that the best defense lawyers out there do thorough investigations, including, of course, interviewing all witnesses…but it sounds like the witness just died, so I can see the attorney not knowing.)

The second question therefore becomes “Under what circumstances should you disclose this information?” In a lengthy comment WindyPundit suggests:

There’s a lot to be said for telling the defense attorney how lucky his client is and dismissing the case, just to improve your rep as a straight shooter.

True, but not all prosecutors are concerned about their reputations in the criminal defense bar. My experience tells me that the defense lawyer needs to worry about his own reputation for truthfulness and honesty, more than a prosecutor need worry about his.

Sarena promises to give her own answer soon, but states that she thinks most comments so far are coming from the defense perspective, and would like other prosecutors to weigh in first…(that means you too Steanso)

  • Thanks for the comment! I’ve posted in my blog…I’m still trying to keep everyone in suspense…

  • Bryan

    This post reminds me of the article by Bruce Green in the Winter 2007 issue of ‘Litigation’. Apparently, the hypothetical stems from the case of People v. Jones, 44 N.Y.2d 76(1978), where court held that prosecutors do not generally have a duty to disclose nonevidentiary information simply because it may be important to the defendant’s calculus of whether to plead guilty. The case is not contrary to the conclusion you reached, but, I thought, you might find it interesting nonetheless.

  • Donna

    Not, ‘do you have to,’ but does it matter. Washington v. Dale Dillingham, on appeals proved that the expert witness was not a psychologist, but the appeals court allowed a non-psychologist, referred to as Dr., by a prosecution that lied, allowed it anyway. And, in cases such as the Comm. of Vir. v. Kroemer, where the prosecution did not have a witness to the facts and their own witness could not support the facts (and even supported the defense), the courts found in favor of evidence for the state. In Oregon, it is not necessary to present all the facts, and the laws specifically give the prosecution the right to present presumed facts (and will favor the State against arguments). In fact, it happens to be the case that most people accused of cyber-related crimes plead guilty, many reserving the right to do it on a no contest basis, not admitting guilt, because they are not guilty. However, the lack of requirements against the prosecution create a scenario whereby the consequences are 1000 years, or 5 years, and people are afraid. Of course, there have been 12 cases (that I know of at least), in 2007 of people appealing the sentence enhancement asked for by the prosecution after a plea bargain anyway – further proving the prosecution is abusing the law, scaring people, and then sticking it to them anyway.

  • Franki

    If anyone has any more research on this issue, I can use all the case law, incites and information that I can get. I am encountering a similar issue as a prosecutor in a case I have right now. Please feel free to e-mail me with any ideas and answers to this question.

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