For the Defense - Vol. 3, Issue 2 - 2018 - 17
material by sanitizing an opinion, although it may
(unintentionally) facilitate a Giglio violation by
doing so.
Practitioners may note
a certain irony in the
government's embrace of
the theory that making
adverse findings harder
to locate eliminates the
obligation to disclose them.
DOJ frequently maintains (in
jurisdictions that permit the
argument) that Brady and
Giglio do not apply to materials that the defense
could locate with reasonable diligence.14 That
analysis suggests that leaving an adverse finding in
an opinion eliminates the need for the prosecution
to disclose it, if the defense could find the
opinion with reasonable effort. Correspondingly,
then, making favorable material harder for the
defense to find would heighten the prosecution's
obligation to disclose it.15
The en banc Third Circuit, however, after
years of precedent that was (by the circuit's
own description) "inconsistent and could easily
confuse," has unequivocally clarified that even
public documents that the defense could easily
find are subject to Brady and Giglio.16 "All
favorable material ought to be disclosed by the
prosecution," the circuit said - full stop. The
government's position in Payano adhered to that
ruling by acknowledging that the court's written
opinion was Giglio material. But it simultaneously
perverted it by suggesting that its disclosure
obligation stops at the written opinion rather than
the findings the opinion memorialized.
Lesson Two: Trust Not the
Conclusory Assertion, and Verify
The government's failure to disclose to Mr.
Payano's counsel the findings in Commonwealth
v. $40,297.00 U.S. Currency, and the Complaint in
Purcell v. Fleisher,19 illustrates four additional ways
in which the government may interpret Giglio too
narrowly.
First, the prosecutor may not have realized
that Giglio applies at the suppression stage - and
that official DOJ policy requires disclosing Giglio
material at that stage even if the courts do not.20
Second, if the prosecutor did understand that
Giglio applied but nonetheless failed to search
for, and/or disclose, the
findings in $40,297.00 U.S.
Currency and the Complaint
in Purcell, then she may
not have been aware that
knowledge of information
in the files of local law
enforcement agencies is
imputed to the federal
prosecutors working with
them.21 Here too, DOJ's written policy may go
even farther than the law requires: it requires
prosecutors to follow a detailed procedure for
discovering Giglio information before calling a
law enforcement witness.22 Either that did not
occur here, or it did occur and the prosecutor
elected not to disclose what she found.
Third, if the prosecutor was aware of the
opinion in $40,297.00 U.S. Currency, perhaps she
interpreted Giglio as limited to express findings
that a witness intentionally lied and found
the opinion a touch too oblique. Decades of
Giglio case law foreclose that interpretation,
however. Giglio itself referred expansively
to "evidence affecting [the] credibility" of a
prosecution witness.23 And in the context of law
enforcement witnesses in particular, DOJ policy
identifies as Giglio material any judicial finding
that the witness conducted "an unlawful search
or seizure ...," without reference to the veracity
of the witness's testimony about it.24 The court
in $40,297.00 U.S. Currency certainly found
Trooper Fleisher's search and seizure unlawful,
even had it found nothing else.
Finally, if the prosecutor was aware of the
Complaint in Purcell, perhaps she interpreted
Giglio as limited to facts that have been
admitted or found rather than credibly alleged.
Purcell was settled without fact-finding, yet
a strong argument may be made that the
allegations alone - particularly given their
factual link to the question of whether the
car stop and search in Payano were motivated
by racial profiling - were proper grounds for
cross-examination.25 While prosecutors typically
Vol. 3, Issue 2
l
For The Defense
17
Table of Contents for the Digital Edition of For the Defense - Vol. 3, Issue 2 - 2018
Contents
For the Defense - Vol. 3, Issue 2 - 2018 - 1
For the Defense - Vol. 3, Issue 2 - 2018 - 2
For the Defense - Vol. 3, Issue 2 - 2018 - Contents
For the Defense - Vol. 3, Issue 2 - 2018 - 4
For the Defense - Vol. 3, Issue 2 - 2018 - 5
For the Defense - Vol. 3, Issue 2 - 2018 - 6
For the Defense - Vol. 3, Issue 2 - 2018 - 7
For the Defense - Vol. 3, Issue 2 - 2018 - 8
For the Defense - Vol. 3, Issue 2 - 2018 - 9
For the Defense - Vol. 3, Issue 2 - 2018 - 10
For the Defense - Vol. 3, Issue 2 - 2018 - 11
For the Defense - Vol. 3, Issue 2 - 2018 - 12
For the Defense - Vol. 3, Issue 2 - 2018 - 13
For the Defense - Vol. 3, Issue 2 - 2018 - 14
For the Defense - Vol. 3, Issue 2 - 2018 - 15
For the Defense - Vol. 3, Issue 2 - 2018 - 16
For the Defense - Vol. 3, Issue 2 - 2018 - 17
For the Defense - Vol. 3, Issue 2 - 2018 - 18
For the Defense - Vol. 3, Issue 2 - 2018 - 19
For the Defense - Vol. 3, Issue 2 - 2018 - 20
For the Defense - Vol. 3, Issue 2 - 2018 - 21
For the Defense - Vol. 3, Issue 2 - 2018 - 22
For the Defense - Vol. 3, Issue 2 - 2018 - 23
For the Defense - Vol. 3, Issue 2 - 2018 - 24
For the Defense - Vol. 3, Issue 2 - 2018 - 25
For the Defense - Vol. 3, Issue 2 - 2018 - 26
For the Defense - Vol. 3, Issue 2 - 2018 - 27
For the Defense - Vol. 3, Issue 2 - 2018 - 28
For the Defense - Vol. 3, Issue 2 - 2018 - 29
For the Defense - Vol. 3, Issue 2 - 2018 - 30
For the Defense - Vol. 3, Issue 2 - 2018 - 31
For the Defense - Vol. 3, Issue 2 - 2018 - 32
For the Defense - Vol. 3, Issue 2 - 2018 - 33
For the Defense - Vol. 3, Issue 2 - 2018 - 34
For the Defense - Vol. 3, Issue 2 - 2018 - 35
For the Defense - Vol. 3, Issue 2 - 2018 - 36
For the Defense - Vol. 3, Issue 2 - 2018 - 37
For the Defense - Vol. 3, Issue 2 - 2018 - 38
For the Defense - Vol. 3, Issue 2 - 2018 - 39
For the Defense - Vol. 3, Issue 2 - 2018 - 40
For the Defense - Vol. 3, Issue 2 - 2018 - 41
For the Defense - Vol. 3, Issue 2 - 2018 - 42
For the Defense - Vol. 3, Issue 2 - 2018 - 43
For the Defense - Vol. 3, Issue 2 - 2018 - 44
For the Defense - Vol. 3, Issue 2 - 2018 - 45
For the Defense - Vol. 3, Issue 2 - 2018 - 46
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue3_2023
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue2_2023
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue1_2023
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue4_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue3_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue2_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol7_issue1_2022
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue4_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue3_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue2_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue1_2021
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue4_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue3_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue2_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol5_issue1_2020
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue4_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue3_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue2_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol4_issue1_2019
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue4_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue3_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue2_2018
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol3_issue1_2018
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue4_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue3_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue2_2017
https://www.nxtbook.com/nxtbooks/pacdl/FORTHEDEFENSE_vol2_issue1_2017
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue4_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue3_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue2_2016
https://www.nxtbook.com/nxtbooks/PACDL/FORTHEDEFENSE_vol1_issue1_2016
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