Miscellaneous


Circa July 1979

Pre-trial Memorandum from law clerk Jeffrey Puretz to Brian Murtagh, re: The Prosecutor's Duty to Disclose Exculpatory Materials in the Fourth Circuit and Other Criminal Discovery Issues relating to United States v. MacDonald

Scans of original transcript
Circa July 1979: Pre-trial Memorandum from law clerk Jeffrey Puretz to Brian Murtagh, re: The Prosecutor's Duty to Disclose Exculpatory Materials in the Fourth Circuit and Other Criminal Discovery Issues relating to United States v. MacDonald, p. 1 of 15
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Circa July 1979: Pre-trial Memorandum from law clerk Jeffrey Puretz to Brian Murtagh, re: The Prosecutor's Duty to Disclose Exculpatory Materials in the Fourth Circuit and Other Criminal Discovery Issues relating to United States v. MacDonald, p. 15 of 15
Circa July 1979: Pre-trial Memorandum from law clerk Jeffrey Puretz to Brian Murtagh, re: The Prosecutor's Duty to Disclose Exculpatory Materials in the Fourth Circuit and Other Criminal Discovery Issues relating to United States v. MacDonald, p. 15 of 15

TO: Brian Murtagh
FROM: Jeffrey S. Puretz, Law Clerk
RE: The Prosecutor's Duty to Disclose Exculpatory
Materials in the Fourth Circuit and Other
Criminal Discovery Issues relating to
United States v. MacDonald, CR-75-1870

______________________________________



INDEX

Section

Page

ISSUES

...............................................................................

1

CONCLUSION

.......................................................................

1

ANALYSIS

............................................................................

1


1. What are the Constitutional Due Process Require-
ments for Disclosure of Exculpatory Materials by
the Prosecutor pursuant to Brady v. Maryland, in
the Fourth Circuit? ..................................................... 2

a.  Basic Principles ..................................................... 2

b.  Need the detailed data of a lab report, as
     distinguished from the conclusions of the
     report, be disclosed, where such conclusions
     have been disclosed and are non-exculpatory?.......... 8

2.

What are the Ramifications of an Open File Policy
of Disclosure by the Prosecutor? ................................11

3.

At what Point in Time must Exculpatory Materials
be Disclosed to the Defense in a Criminal
Proceeding? .......................................................... 12


ISSUES

1.

What are the constitutional due process requirements for disclosure of exculpatory materials by the prosecutor pursuant to Brady v. Maryland, 373 U.S. 63 (1963), in the Fourth Circuit?

2.

What are the ramifications of an open file policy of disclosure by the prosecutor?

3.

At what point in time must exculpatory materials be disclosed to the defense in a criminal proceeding?



CONCLUSION

The Supreme Court has recently defined an affirmative duty upon the prosecutor to disclose exculpatory materials to the defense in a criminal proceeding, and they have defined the standards for the finding of a denial of a fair trial in the event of nondisclosure.  An open file policy by the prosecution often results in the judicial recognition of good faith by the prosecutor, increasing the burden upon the defense to show a Brady violation.  Disclosure at trial, as opposed to pretrial, further increases the burden upon the defense to show a Brady violation.  In the circumstances of the MacDonald case, where a partial open-file policy has been pursued, with non-disclosed items submitted for in-camera review, and with expert witnesses to be subjected to cross-examination at trial, a great burden will be placed upon the defense to show a Brady violation.


ANALYSIS

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that the prosecutor's failure to disclose exculpatory evidence pursuant to a request by the defendant constitutes a denial of the constitutional right to due process of the law.  Brady was a seminal decision that left many unanswered questions about the extent of the rule, the standard to be used in applying it, and the procedures to be used in its application.  The Supreme Court in additional decisions, and the Circuits have somewhat refined the rule.  The focus here will be on those decisions of the Supreme Court and the Fourth Circuit that have expounded the rule first promulgated in Brady.

1.  WHAT ARE THE CONSTITUTIONAL DUE PROCESS REQUIREMENTS FOR DISCLOSURE OF EXCULPATORY MATERIALS BY THE PROSECUTOR PURSUANT TO Brady v. Maryland, IN THE FOURTH CIRCUIT?

a.  Basic Principles

Even before the Brady decision, the Supreme Court had found a duty for the prosecutor to prevent the knowing use of false testimony.  They held that the deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with the "rudimentary demands of justice" and falls under the Fourteenth Amendment.  Mooney v. Holohan, 294 U.S. 103, 112 (1935); Pyle v. Kansas, 317 U.S. 213 (1942).  "The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears." Napue v. Illinois, 360 U.S. 264, 269 (1959).  This principle applies not only where the false testimony goes to the issue of the defendant's guilt, but also to the issue of a witness' credibility when the reliability of a given witness may well be determinative of guilt or innocence.  Napue, at 269.  The prosecution may not order the arrest of a key defense witness to obstruct the defendant's offer of exculpating proof.  Bray v. Peyton, 429 F.2d 500 (4th Cir. 1970) (before Boreman and Bryan, and Craven; opinion per curium).

In Giglio v. United States, 405 U.S. 150 (1972), the Supreme Court held that the prosecutor of a case is charged with the knowledge of the government, and that non-disclosure is not excused by arguing that the prosecutor did not know about any material evidence.  "[W]hether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor.  The Prosecutor's office is an entity and as such it is the spokesman for the Government."  Giglio at 154.  In Giglio knowledge that the key government witness had been given immunity before the grand jury, which was conducted by a different prosecutor than the trial, was charged to the government, and failure to disclose such immunity was found to be failure to disclose material evidence.  Giglio delineated a duty to disclose evidence affecting the credibility of a witness, where the reliability of the witness "may well be determinative of guilt or innocence..."  Giglio at 154.  Note that in Giglio, the requirement for disclosable evidence was not defined as exculpatory, but "material."

The basic proposition of Giglio, that the prosecutor is charged with the knowledge of the government, and that lack of knowledge is no excuse, is found in several Fourth Circuit cases.  Barbee v. Warden, Maryland Penitentiary, 331 F.2d 842 (4th cir. 1964) (before Sobbeloff, Boreman, and Barksdale; opinion by Sobeloff); Boone v. Paderick, 541 F.2d 447 (4th Cir. 1976) (before Haynsworth, Winter, and Craven; opinion by Craven), cert. den., 430 U.S. 959, citing Giglio; Ingram v. Peyton, 367 F.2d 933 (4th Cir. 1966) (before Haynsworth, Sobeloff, and Hemphill; opinion by Sobeloff reversing D. Judge Butzner), where nondisclosure of past perjury conviction of key government witness resulted in reversal.

There is no constitutional difference between concealment of a promise of leniency to a coconspirator and concealment of a threat to prosecute.  United States v. Sutton, 542 F.2d 1239 (4th Cir. 1976) (before Haynsworth, Winter, and Craven; opinion by Craven).  But see, Reddy v. Jones, 572 F.2d 979 (4th Cir. 1977) (before Bryan, Field, and Widener; opinion per curium) where knowledge of a federal offer of relocation money for witness was not charged to state prosecutors, who did reveal federal offers of immunity.  (Circuit Judge Butzner dissented in Reddy to a denial of a petition for rehearing en banc, requesting consideration on the state prosecutor's duty in this issue.)

In Moore v. Illinois, 408 U.S. 786 (1972), the Court implicitly held that the materiality of evidence insofar as it may affect the fairness of a defendant's trial, must be evaluated in light of all of the evidence against the defendant.  Followed in United States v. Schembari, 484 F.2d 931 (4th Cir. 1973) (before Wisdom, Ainsworth, and Clark; opinion per curium).

In a recent decision, United States v. Agurs, 427 U.S. 97 (1976), the Supreme Court discussed the Brady standards at length, and articulated the standard of materiality to be applied in determining whether there has been a denial of due process.  In defining this standard, the Court recognized that the problem of materiality arises in two contexts, one when the prosecutor makes his decision before trial about what to disclose and the other after the trial when a judge may be required to decide whether a nondisclosure deprived a defendant of his right to a fair trial.  While noting that "Logically, the same standard must apply at both times," the Court found "a significant practical difference" between these two contexts.  That difference arises, because in a post-trial analysis, "The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt." Agurs at 112.  The Supreme Court did not expound upon how one should differentiate between the two standards, since the standard applied in a post-trial analysis obviously affects any pre-trial decision whether or not to disclose.  While recommending that the "prudent prosecutor will resolve doubtful questions in favor of disclosure," the Court insisted that "the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant's right to a fair trial."  Agurs at 108.  See, Norris v. Slayton, 540 F.2d 1241 (4th Cir 1976) (before Haynsworth, Butzner, and Field; opinion by Field), where two reports were found to be exculpatory and their nondisclosure resulted in Brady violations, but nondisclosure of only one of the reports constituted reversible error.

The Court in Agurs noted that Brady issues arise in three situations, and that the standard of materiality varies with each of the situations.  (In making this distinction, the Court found that their previous decisions, and the apparently inconsistent standards defined therein, were really correct, the distinction being which standard to apply in which situation.) These standards relate to the gauge to be used in deciding whether reversal is appropriate for the particular circumstance of the nondisclosure.  As inferred earlier, the standards are relevant for determining the prosecutor's constitutional duty to disclose, for these are the standards by which the prosecutor's action will eventually be judged.

The first situation is typified by Mooney v. Holohan, supra, in which "the undisclosed evidence demonstrates that the prosecution's case includes perjured testimony and that the prosecution knew, or should have known, of the perjury."  Agurs, at 103.  The Court held that a strict standard of materiality must apply here and that "a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury."  Agurs at 103.

See, United States v. Sutton, supra, applying a strict standard in it Giglio type situation (Giglio infra).

The second situation relative to the standard of materiality focuses on the nature of a request made by the defense counsel.  This situation is typified by the Brady case itself, in which a request was made for the extra-judicial statements of the defendant, and the request was not fully complied with.  This situation arises when there has been a pretrial request for specific material.  On the standard of materiality, the Court said, "implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial."  Agurs at 104.

The third situation addresses what had been another lively issue in Brady litigation, i.e., whether a request is necessary to find a constitutional duty to disclose.  The Supreme Court answered that question - no.  In the third situation, the defense makes only a general request for exculpatory material, or even no request, the Court holding that for purposes of Brady, there is no difference between the two.  It is in this context that the Court espoused a standard that defines the minimum constitutional duty upon the prosecutor, i.e., at what point does the failure to disclose result in the "denial of the defendant's right to a fair trial."  That standard is as follows:
If the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed.  This means that the omission must be evaluated in the context of the entire record.  If there is no reasonable doubt about guilt whether or or not the additional evidence is considered, there is no justification for a new trial.  On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.
Agurs at 113 (emphasis added).  This standard was expressly distinguished from a standard in which evidence would be material if it "might affect the jury's verdict.  Agurs at 108.  See, Agurs, 427 U.S. 114, 119 (Marshall, J., dissenting opinion).  In emphasizing that an omitted disclosure must, upon post-trial analysis, be evaluated in the context of the entire record, the Court cited the following example:
"If, for example, one of only two eyewitnesses to a crime had told the prosecutor that the defendant was definitely not its perpetrator and if this statement was not disclosed to the defense, no court would hesitate to reverse a conviction resting on the testimony of the other eyewitness.  But if there were fifty eyewitnesses, forty-nine of whom identified the defendant, and the prosecutor neglected to reveal that the other, who was without his badly needed glasses on the misty evening of the crime, had said that the criminal looked something like the defendant but he could not be sure as he had only had a brief glimpse, the result might well be different."  Comment, 40 U. Chi. L. Rev., supra, n. 10, at 125.
Agurs at 112-13, n. 21.

The significance of the Agurs decision is that in refining the Brady rule, the Court established an affirmative duty upon the prosecutor to disclose "substantial material evidence" even in the absence of a request, as a minimal due process requirement mandated by the fifth amendment (and applying to state courts by the fourteenth amendment).  But the Fourth Circuit had already established an affirmative duty to disclose exculpatory material twelve years prior to Agurs, in Barbee v. Warden, Maryland Penitentiary, supra.  Barbee is the Fourth Circuit seminal case for finding an affirmative duty for disclosure "of evidence that may reasonably be considered admissible and useful to the defense.  When there is substantial room for doubt, the prosecution is not to decide for the court what is admissible or for the defense what is useful."  Barbee at 845, quoting, Griffin v. United States, 183 F.2d 990, 993 (D.C. Cir. 1950).

In defining the Agurs standard of materiality, the Supreme Court noted that "This statement of the standard of materiality describes the test which courts appear to have applied in actual cases although the standard has been phrased in different language."  Agurs at 113.  But in Barbee, which is widely cited in the Fourth Circuit, the Circuit Court defined a dual standard as opposed to Agurs' triple standard, between cases involving "the knowing use of false testimony and the passive nondisclosure of exculpatory evidence."
In the first type of case the sentence will be set aside without inquiring into whether the defendant has been prejudiced, while in the latter some consideration of the possible effect of the irregularity upon the fairness of the trial is necessary.  How strong a showing is required in a given case will depend on the nature of the charge, the testimony of the state, and the role the undisclosed testimony would likely have played.
Barbee at 847.  In Barbee, the Circuit Court reversed a denial of habeas corpus relief, noting that the non-disclosed items "might well have nurtured, even generated, a reasonable doubt as to guilt."  Barbee at 847.  Conceivably it is true that the Agurs' and Barbee standards represent the same test.  Certainly the Fourth Circuit has given credence to a finding of guilt, a concept stressed by the Supreme Court in Agurs.  In Norris v. Slayton, 540 F.2d 1241 (4th Cir. 1976) (before Haynsworth, Butzner, and Field; opinion by Field), the court applied a standard for reversal derived from Barbee, i.e., "might reasonably have weakened or overcome testimony adverse to the defendant," and, in an Addendum opinion, found their decision consistent with the Agurs standard, i.e., "creates a reasonable doubt that did not otherwise exist."

Some of the "different language" used to define the Agurs standard conceivably includes that requiring "prejudice" be shown for reversal.  United States v. Salsbury, 430 F.2d 1045 (4th Cir. 1970) (before Haynsworth, Winter, and Butzner; opinion by Butzner).  For other Circuits generally in accord, see, United States v. Crockett, 534 F.2d 589 (5th Cir. 1976); United States v. Keogh, 391 F.2d 138 (2d Cir. 1968); Clark v. Burke, 440 F.2d 853 (7th Cir. 1971).  But in Hamric v. Bailey, 386 F.2d 390 (4th Cir. 1967) (before Boreman, Bryan, and Winter; opinion by Winter), evidence was found to be material (citing Barbee) where it would be mere speculation to say that it could not have influenced the fact finder.  The Ninth Circuit prefers a more lenient standard, finding disclosure necessary where material may "in any way be exculpatory."  United States v. Miller, 529 F.2d 1125 (9th Cir. 1976) (a pre-Agurs case).  One commentator has suggested that materiality has two components, the first being the extent to which the evidence is favorable to the accused, and the second being the relevance of the evidence to the issue of the defendant's guilt or innocence.  Comment, Brady v. Maryland and the Prosecutor's Duty to Disclose, 40 U. Chi. L. Rev. 112, 125 (1972).  This commentator acknowledges that generally, the courts have not separated favorability and relevance.  Id. at 126.  But see, Evans v. Janing, 489 F.2d 470 (8th Cir. 1973), requiring a higher standard of materiality for impeachment evidence than for evidence directly relevant to guilt.

The relative materiality of the evidence is for the court to determine, not the prosecution.  Norris v. Slayton, supra.

In Barbee, the Fourth Circuit addressed other significant Brady issues, several of which were addressed in Agurs.  On the issue of whether a request by the defense is relevant to the duty to disclose, the court held that where nondisclosure may result in unfairness, a request is irrelevant.  On the issue of whether the prosecutor is charged with information of different departments of the government, the court held that it is irrelevant that the prosecutor may not have been shown material by the police that "The duty to disclose is that of state..."  Barbee at 846.

One Fourth Circuit case, United States v. Lemus, 542 F.2d 222 (1976) (before Haynsworth, Winter, and Butzner; opinion per curium), cert. den., 430 U.S. 947, decided subsequent to Agurs, held that a request by defense counsel is a requisite for disclosure pursuant to Brady.  "Disclosure under Brady or Jencks Act is predicated upon a prior request by defense counsel, specifying the materials sought."  Here, the requested item was a psychiatrist's report on the competency of the defendant to stand trial.  No constitutional error was found where the defense did not request the specific report, and where the psychiatrist testified at trial and was subjected to cross-examination.  It is conceivable that the Circuit Court's disregard of Agurs is due to the speciousness of the petitioner's argument and to the timing of the two decisions.  Agurs was decided on June 24, 1976 and Lemus was decided on October 6, 1976 and argued on September 13, 1976.  Had the issue been raised, it is unlikely that the report would have been found exculpatory or material, since it concluded that the defendant was competent to stand trial.  Lemus is neutralized by Norris v. Slayton, supra, in which the court of appeals found a duty to provide Brady material regardless of request.  Here the court expressly declared their findings consistent with Agurs in an Addendum.  Norris at 1244.

The courts have assigned the burden of determining what material must be disclosed to the prosecutor, but such determination must be made from a defense perspective.  Comment, Brady v. Maryland and the Prosecutor's Duty to Disclose, 40 U. Chi. L. Rev. 1l2, 121 (1972).
b.  Need the Detailed Data of a Lab Report, as Distinguished from the Conclusions of the Report, be Disclosed, Where such Conclusions have been Disclosed and are Non-Exculpatory?
Recall that the Agurs standard finds denial of the right to a fair trial where the non-disclosed information "creates a reasonable doubt that did not otherwise exist," evaluated in the context of the entire record.  Agurs at 113.  Applying this standard to the above-described situation, it is reasonable to assume that unless the detailed data casts significant doubt upon the disclosed conclusions of a lab report, that pretrial disclosure of such detailed data is not required.

Other cases indicate that where the author of a report is examined at trial and cross-examination is permitted, the burden increases for showing a Brady violation for failure to disclose.  In Norris v. Slayton, supra, the defendant, a Negro, was charged with rape of an 81 year old Caucasian woman.  FBI reports indicated that no Negroid hairs were found in the bed linen of the alleged victim, and that no Caucasian hairs were found on the under shorts of the defendant.  Failure to disclose this report prior to trial was found to "cross the threshold" of Brady, but did not violate the defendant's right to a fair trial where a police officer testified upon cross examination that no hair was found.  Norris, 540 F.2d at 1243.  Accord, United States v. Lemus, supra.  (Note that if the contested material becomes the subject of examination at trial, it may be discoverable subsequent to the relevant witness' direct examination.  18 U.S.C.  3500.) In Patler v. Slayton, 503 F.2d 472 (4th Cir. 1974) (before Boreman, Craven, and Widener; opinion by Craven) a report containing various scientific tests were not "exculpatory" but "neutral."  The court stated, "Such a characterization often has little meaning; evidence such as this may, because of its neutrality, tend to be favorable to the accused."  Expressly avoiding the issue of whether such reports were "favorable" under Brady, the court assumed an affirmative duty to disclose, but this duty was satisfied by disclosure at trial upon introduction of relevant items into evidence.

One Fourth Circuit case delineated more precise standards for disclosure of a report and showed the significance of in-camera review.  In United States v. Figurski, 545 F.2d 389 (4th Cir, 1970) before Haynsworth, Winter, and Butzner; opinion by Winter), the issue was over a presentence report and recommendation by the Bureau of Prisons concerning a government witness.  The court said,
As in Agurs, where the issue was the standard for granting a new trial, so here, where the issue is whether to disclose a protected report, the basic problem is one of materiality.  If the report contains exculpatory material, that part of the report must be disclosed.  If the report contains only material impeaching the witness, disclosure is required only when there is a reasonable likelihood of affecting the trier of fact.  Whether there is such a likelihood depends upon a number of factors such as the importance of the witness to the government's case, the extent to which the witness has already been impeached, and the significance of the new impeaching material on the witness' credibility...

It follows that when requested to exhibit such a report, the district court should examine it in camera and disclose only those portions, if less than all, of the report which meet the test which we prescribe.  If exhibition is denied, the denial should be an informed one based upon the district court's conclusion that the information contained therein fails to meet the prescribed test.
Figurski at 391-92.  See, United States v. Mitchell, 408 F.2d 996 (4th Cir. 1969) (before Haynsworth, Boreman, and Butzner; opinion by Haynsworth) , cert. den., 396 U.S. 930, in which the appeals court deferred to the judgment of the trial judge where the latter recognized that there was a considerable lapse of time between the alleged crime and the trial, and ordered production of the entire government file and made an in-camera inspection for evidence favorable to the defendant.  But see: United States v. Frazier, 394 F.2d 258, 262 (4th Cir. 1968) (before Haynsworth, Craven and MacKenzie; opinion by MacKenzie), cert. den., 393 U.S. 984, where the court said Brady does not make it "incumbent upon the trial judge to rummage through the [prosecutor's) file on behalf of the defendant."

Several cases have found scientific reports favorable to the accused, and their non-disclosure has resulted in setting a conviction aside, but in each a strong showing of prejudice to the defendant was apparent.  In Barbee a conviction was set aside where ballistics and fingerprint tests were not disclosed, and such tests indicated that the gun used in the assault of which the defendant was convicted could not have been the defendant's gun.  See: United States ex rel.  Almeida v. Baldi, 195 F.2d 815 (3d Cir. 1952); Clay v. Black, 479 F.2d 319 (6th Cir. 1973), where error was found when a report of a bloodstain taken from a murder victim's car corroborated the defendant's alibi that a struggle had ensued in the car.

In People v. Fein, 18 N.Y.2d 162, 272 N.Y.S.2d.  753, 219 N.E.2d 274 (1966), no denial of a fair trial was found where the report of an inconclusive preliminary ballistics test was not revealed to the defendant.  The ballistics report was a naked-eye examination which was not contradictory to a superseding microscopic examination.  The court noted that both tests were in the possession of the court during the trial pursuant to a subpoena by the defendant and were available to him, and that the author of the microscopic report was cross-examined at trial.

The difficult standard that must be shown for reversal for denial of a fair trial, and the strong showing of materiality that must be shown for a scientific report, which must be considered in light of all other evidence, militates against the finding of error for not disclosing the detailed data of blood tests where the conclusions have been disclosed.  This is particularly true where a district court judge has affirmed this action, and where the expert witness will testify at trial and be subject to cross-examination.

2.  WHAT ARE THE RAMIFICATIONS OF AN OPEN FILE POLICY OF DISCLOSURE BY THE PROSECUTOR?

The strictness of the standard established in Agurs clearly shows that an open file policy is not a constitutional requirement.  This was expressly stated in Agurs:
Whether or not procedural rules authorizing such broad discovery (as the complete discovery of the prosecutor's file) might be desirable, the Constitution surely does not demand that much.  While expressing the opinion that representatives of the State may not "suppress substantial material evidence," former Chief Justice Traynor of the California Supreme Court has pointed out that "they are under no duty to report sua sponte to the defendant all that they learn about the case and about their witnesses."  In re Imbler, 60 Cal.2d 554, 569,387 P.2d 6, 14 (1963).  And this court recently noted that there is "no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case."  Moore v. Illinois, 408 U.S. 786, 795.
Agurs at 109.  Accord: United States v. Harris, 409 F.2d 77 (4th Cir. 1969) (before Haynsworth, Boreman, and Butzner; opinion by Butzner), cert. den., 396 U.S. 965; Williams v. Dutton, 400 F.2d 797 (5th Cir. 1968); Evans v. Janing, 489 F.2d 470 (8th Cir. 1973).  But see, Dennis v. United States, 384 U.S. 855 (1966), stating that disclosure rather than suppression of relevant materials ordinarily promotes the proper administration of criminal justice; ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Discovery and Procedure before Trial (Approved Draft 1970), recommending liberal expansion of the scope of pretrial disclosure; Comment, Brady v. Maryland and the Prosecutor's Duty to Disclose, 40 U.  Chi L.  Rev. 112 (1972), suggesting that Brady be interpreted as requiring an open file policy, except in special cases; Kampfe and Dostal, Discovery in the Federal Criminal System, 36 Montana L.  Rev. 189 (1975), suggesting that the prosecution be required to reveal any evidence which may be the least bit useful to the defense.

In several cases, courts have taken notice of an open file policy and credited the government with acting in good faith in such proceedings.  Such a policy has increased the burden upon the defense to show a due process violation upon appeal.  Moore v. Illinois, 408 U.S. 786 (1972); United States v. Wilcox, 507 F.2d 364 (4th Cir. 1974) (before Bryan, Winter, and Russell; opinion by Russell), cert. den., 420 U.S. 979, in which the files of two government witnesses who were unexpectedly called to testify at trial were not made available to defense despite an informal open file policy, but no error was found; United States v. Frazier, supra; McDonald v. Estelle, 536 F.2d 667 (5th Cir. 1976), United States v. Smith, 309 F.2d 896 (6th Cir. 1968).  In United States v. Bland, 432 F.2d 96 (5th Cir. 1970), the prosecutor followed an open file policy with the exception of certain files, and these were submitted to the trial judge for in-camera review.  The Appeals Court described as "fishing expedition" an attempt by the defense to obtain additional inspection.

3.  AT WHAT POINT IN TIME MUST EXCULPATORY MATERIALS BE DISCLOSED TO THE DEFENSE IN A CRIMINAL PROCEEDING?

The Supreme Court has not addressed this issue.  Lower courts have generally divided between two alternatives: pretrial disclosure and disclosure at trial.  Comment, Brady v. Maryland and the Prosecutor's Duty to Disclose, 40 U. Chi. L. Rev. 112, 118 (1972) (citing cases).  The issue can be complicated when Brady material is also subject to the disclosure requirements of the Jencks Act.  Id. at 118-19.

Several Fourth Circuit cases have addressed the issue of the timing of disclosure.  In Hamric v. Bailey, 386 F.2d 390 (4th Cir. 1967) (before Boreman, Bryan, and Winter; opinion by Winter), the defendant was convicted of second degree murder for firing a shotgun to prevent the decedent from illegally entering her home through a window.  The defendant's theory of defense was that the decedent was about to enter her home through the window and that she shot in self-defense.  The prosecution claimed that the decedent was ten feet away from the window when shot.  A police report indicated that wood and glass particles were found on the decedent's shirt, and this report was not disclosed to the defense until after the jury had retired for deliberation.  The appeals court held:
[W]e conclude that disclosure of the undisclosed evidence after the jury had retired was too late to overcome the requirements of Brady.  If it is incumbent on the State to disclose evidence favorable to an accused, manifestly, that disclosure to be effective must be made at a time when the disclosure would be of value to the accused...  [T]he potential prejudicial effect to an accused of such an extraordinary procedure persuades us that Brady, to be given vitality, must be interpreted to require disclosure, at least, before the taking of the accused's evidence is complete.
Hamric at 393.  Here, disclosure at trial was constitutionally adequate for a decidedly exculpatory report.  Accord on the adequacy of disclosure at trial, United States v. Elmore, 423 F.2d 775 (4th Cir. 1970) (before Winter, Craven, and Harvey; opinion by Winter),cert. den., 400 U.S. 825, where disclosure was made before the defense began their case.  But see, United States v. Pollack, 534 F.2d 964, 973 (D.C. Cir. 1976), calling for a case-by-case determination of the timing issue at the discretion of the trial court judge, and noting, "Disclosure by the government must be made at such a time as to allow the defense to use the favorable material effectively in the preparation and presentation of its case, even if satisfaction of the criterion requires pretrial disclosure."

In Patler v. Slayton, 503 F.2d 472 (4th Cir. 1974) (before Boreman, Craven, and Widener; opinion by Craven), the results of several tests were revealed to the defense at trial, each report being revealed once the relevant item of evidence was introduced by the prosecution.  The tests consisted of ballistics tests and tests for traces of paint and soil from the defendant's clothing and shoes.  The court avoided the issue of whether the test results were exculpatory (finding them to the defendant's advantage, if only to neutralize the effect of other evidence) and decided the case on the issue of timing, holding that disclosure during the prosecution's case was adequate.  The court found it significant that there was a thorough cross-examination by defense counsel and noted that Brady does not require pretrial discovery.  "In light of the fact that Brady does not require pretrial discovery..., and in the absence of any demonstration of prejudice to his defense from the failure of the prosecution to make the disclosure at an earlier point in the trial, petitioner's assertion of untimely disclosure must fail.  Where, as here, the disclosure is timely, i.e., occurring at or before the introduction by the prosecution of evidence to which the disclosed material logically related and at a time when it can be meaningfully evaluated and utilized by the defense, there is no violation of due process."  Patler at 479-80.

In State ex rel.  Sheppard v. Alvis, 170 Ohio St.  551, 11 Ohio op.  2d 167 N.E.2d 94 (1960), an Ohio court found no error when the laboratory card on which the results of a blood test were recorded was not disclosed to the defense prior to trial.  This card was one of several that was turned over to the defense after the coroner's medical technician had stated on direct examination that the tests were inconclusive.  The court found it significant that the witness had been cross-examined, after which all of the laboratory test cards were turned over to the defense counsel, and that they were later introduced into evidence by the defense.

These timing cases again indicate the difficult showing required for a Brady violation under circumstances where a partial open file policy has been followed, with nondisclosed items submitted for in-camera review and with government witnesses subject to cross-examination at trial.