When a person is charged with a crime, the prosecution is bound by law to provide all the evidence supporting the charge or charges, including evidence that might exonerate the defendant. Evidence that is favorable to the defendant is called “exculpatory evidence” and back in 1963, the United States Supreme Court held that the prosecution must give all this exculpatory evidence to the defense. This case, Brady v. Maryland, 373 U.S. 83, was the seminal case on exculpatory evidence. These days, attorneys refer to Brady evidence when they are talking about exculpatory evidence.

Unfortunately, the prosecution sometimes plays fast and loose with exculpatory evidence. And if the defense doesn’t know the evidence exists, it may be hidden by the prosecution and not available in the discovery, leaving the defendant at a disadvantage. This doesn’t happen in every case, most prosecutors run an honest practice, but it happens. A few years ago, the Orange County District Attorney’s office was scandalized by allegations that it withheld material evidence from the defense and the court in a high-profile murder case. That led to a new law in California that provides for criminal punishment of a prosecutor who withholds evidence.

Sometimes, the discovery that a prosecutor has withheld exculpatory evidence does not become known until years after the trial. For example, just this year, disciplinary charges were filed by the State Bar of California against a former L.A. City Attorney who was accused of withholding potential exculpatory evidence in a murder case that took place 30 years ago. The case was a death penalty case and the defendant was convicted and sentenced to death.

Fortunately for that defendant, there has been a stay on executions in the state. Last year, the conviction was overturned by a federal judge for prosecutorial misconduct, due to the evidence that the city attorney withheld.

Earlier this month, the California Supreme Court issued an order that paved the way for a new ethics rule that applies to all prosecutors practicing in California. This new ethics rule attempts to address some of the “loopholes” prosecutors may employ to avoid disclosing evidence favorable to the defendant and requires prosecutors to make a timely disclosure of all evidence that may help the defense. The rule titled “Special Responsibilities of a Prosecutor,” not only requires prosecutors to disclose evidence pursuant to Brady v. Maryland, but also requires that the prosecutor disclose evidence that the prosecution knows, or reasonably should have known, would cast doubt on a prosecution witness’s testimony. The rules also make prosecutors responsible for evidence discovered by law enforcement personnel or non-lawyer personnel or agents of the prosecutor’s office (e.g., investigators).

Prosecutors as well as defense attorneys and the courts have a responsibility to ensure justice is served. A prosecutor who withholds evidence that may help the defense, or, in some cases, even exonerate the defendant, not only thwarts justice but violates his or her duty to the citizens (People of the State of California) a prosecutor is sworn to represent. Disclosure under Brady and the ethics rules promulgated by the California State Bar are important components of our justice system and help to ensure that we live under the rule of law, not the rule of man.

William Weinberg is a criminal defense attorney who has been defending individuals accused of crimes for almost 25 years. He takes great care to ensure that all evidence is disclosed by the prosecutor on every case he defends. You may contact him for a free consultation regarding your criminal matter at his Irvine office at (949) 474-8008 or by emailing him at