Thursday, August 2nd, 2007


United States v. Rodriguez, No. 05-3069-cr (2d Cir. July 24, 2007)(Leval, Cabranes, CJJ, Rakoff, DJ).

Ramiro Rodriguez was convicted of narcotics trafficking primarily on the testimony of two cooperating witnesses. One of those witnesses admitted on direct examination that she lied “about everything” when she “first spoke with the government.” The government had not disclosed this to the defense before trial and, when counsel asked to be told about the substance of the lies, the government refused. The district judge, who initially thought the information should be turned over, ultimately declined to force the issue, apparently agreeing with the government that since the lies had not been reduced to writing there was no disclosure obligation.

On appeal, the court made short work both of the government’s intransigence and the district judge’s confusion. “The obligation to disclose information covered by [Brady/Giglio] exists without regard to whether that information has been recorded in tangible form.” The court remanded the case to the district court so that it could determine whether the information was material, and whether the failure to disclose it prejudiced the defense.

It is truly shocking to learn that, until July 24, 2007, SDNY actually believed that it did not have to disclose exculpatory evidence unless they themselves had memorialized the information in a writing. Surely there are countless cases where important Brady/Giglio information was withheld on this utterly frivolous ground. Shame on you, SDNY!

Several significant aspects of this opinion should, hopefully, force the USAO to start playing fair. First, the opinion makes clear that the government has to disclose the substance of Brady/Giglio material, not merely its existence, something that SDNY prosecutors have typically resisted. Second, footnote 4 indicates that the government has to turn over the information even if it might not be in a form that would be admissible in court. Third, the court takes a dim view of the government’s argument that a general disclosure is adequate because the defense can explore the matter on cross-examination. “Defense counsel would be in the difficult position of having to question the witness blindly in the jury’s presence, not knowing whether the answers elicited might seriously incriminate or prejudice the defendant.” Fourth, footnote 6 expresses a clear preference for pretrial disclosure.

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