A term often thrown around by federal prosecutors and federal defense attorneys is Brady. “Brady” refers to a rule which requires the prosecution to disclose exculpatory evidence evidence in its possession to the defense prior to trial. Typically the prosecution will disclose all such information prior to trial, however, this obligation doesn’t end at the commencement of trial.

The Brady obligation continues in effect once the trial has begun. If a violation of Brady occurs after the commencement of trial there can be severe remedial action taken by the court if the violation is egregious. For example, the 9th Circuit has previously upheld the declaration of a mistrial and a dismissal of an indictment due to a prosecutor failings to disclose Brady material. In that case however, the prosecution also failed to maintain records relating to the types of documents given to the defense pursuant to Brady, and also made misrepresentations to the court. The court in upholding the dismissal concluded that the defendant suffered substantial prejudice as a result of the prosecutor’s flagrant misconduct. Despite the government’s arguments that the constitutional violations could be remedied through a continuance or a mistrial with declaration of a new trial, the circuit court was unconvinced, holding that the the mistrial remedy would only serve to advantage the government by allowing it to salvage “a poorly conducted prosecution”.

A major part of a federal criminal defense attorney’s jobs is to know the rules and to make sure the government plays by those rules when prosecuting a case. The old adage, “you have to do the right thing in the right way or its wrong” comes to mind. Make sure the federal criminal defense attorney you pick is consistently aware of the latest rules in your jurisdiction and is holding the government to those rules. It might just mean the difference between imprisonment and freedom.

The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrari-legal.com.

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