Disclosure in the Modern Age

Article excerpt

On a dark, rainy night, a patrol officer on the midnight shift sits in his squad car. He uses his laptop to exchange e-mails with his dispatcher. His department-issued "smart phone" buzzes with an incoming text from another officer. He pauses to use his personal mobile phone to update his Facebook status and to "tweet" something witty about a DUI subject he just arrested. (1) The officer then leaves a long, detailed voicemail concerning follow-up information for the detective on the upcoming shift. He sends an e-mail including the description of a subject in an earlier assault to the watch commander and updates the department's crime blog accordingly. His squad car is a virtual electronic communications center, and the communications coming to and from that center may be discoverable.


The roots of the discovery process are found in the constitutional concepts of fundamental due process and confrontation. (2) The discovery process effectively serves two purposes: It provides opportunity and fairness in allowing accused persons to access and investigate evidence against them and, in so doing, also may persuade them to negotiate a plea. The process also serves as a check against government power, consistent with and in the spirit of the U.S. Constitution. (3)

In the criminal context, discovery primarily fulfills obligations held by the government and essentially consists of four separate parts. These stem in the federal system from either statutes or from the Constitution in the form of U.S. Supreme Court rulings. (4) This article will explore briefly those obligations and then examine how they apply to the technology used by police and prosecutors today.


Exculpatory Information -Brady

In July 1958, John Brady was 25 years old when he was arrested and charged with first-degree murder. His girlfriend, Nancy Boblit Magowan, a married woman, was pregnant with his child, and the couple needed cash. Desperate for money, John, along with Nancy's brother Donald Boblit, decided to rob a bank. During the planning, Brady suggested the need for a getaway car, and the duo planned to steal the car of a mutual friend, William Brooks. Boblit and Brady seized Brooks'' car at gunpoint, struck him with a shot gun, and drove him to secluded field. They then walked Brooks to the edge of the woods where one of the men strangled him to death with a shirt. (5)

Once arrested, both men gave several statements to detectives. Brady consistently denied killing Brooks and claimed that Boblit committed the actual murder. Boblit did the same, giving several statements and claiming in all but one that Brady was the killer. In Boblit's fifth statement, given on July 9th, he admitted that he strangled Brooks. (6)

The key issue in the case related more to penalty than guilt. Both men were convicted in separate trials of first-degree murder and sentenced to death. In Boblit's trial, prosecutors used the July 9th confession to convict and justify his death sentence. That July 9th statement never was presented at Brady's trial, and Brady's lawyer was neither provided a copy nor was he even aware it existed until he read the transcript from Boblit's trial. (7) Brady could never have been sentenced to death if the Boblit admission was known at trial.

The facts of Brady v. Maryland led the U.S. Supreme Court to place an affirmative constitutional duty on prosecutors to disclose exculpatory evidence to a defendant. Subsequent cases have extended this duty to law enforcement agencies, requiring them to notify the prosecutor of any potential exculpatory information. (8) The Court held that withholding exculpatory evidence violates due process "where the evidence is material either to guilt or to punishment" and determined that under Maryland state law the withheld evidence could not have exculpated the defendant but was material to the level of punishment he would receive. …