In United States v. Burke (No. 08-8033), the Tenth Circuit noted a failure on the part of the prosecutor to timely disclosure exculpatory Brady material. The court was “greatly concerned” by this failure and held that “the belated disclosure of impeachment or exculpatory information favorable to the accused violates due process when an earlier disclosure would have created a reasonable doubt of guilt.” However, the Tenth Circuit ultimately affirmed the defendant’s conviction on the basis that he was unable to show that he was prejudiced by the delay.
While the court’s ruling is significant for criminal attorneys it also highlighted the importance of care during trial. In Burke the government was ordered to disclose all immunity agreements with testifying witnesses. It failed to disclose an “informal” agreement with one witness, and even elicited affirmative testimony that no such agreement existed. Defense counsel learned of the existence of the “informal” agreement only by “immediately” recognizing the significance of the following exchange during the prosecution’s direct examination “[Prosecutor]: Okay. Now, you gave an interview as part of your plea agreement – [Witness]: Uh-huh.”
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