Can a prosecutor be disciplined for failing to turn over exculpatory evidence? Some courts are answering this question with “Yes.” 

ABA Model Rule 3.8 requires a prosecutor, to, among other things:

“(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal….” Utah has enacted Rule 3.8(d).”

The case is In the Matter of the Discipline of Tyler James Larsen, 2016 UT 26. Larsen was an assistant prosecutor with the Davis County Attorney’s Office.  Larsen was found to have violated Utah Rule 3.8 – Special Responsibilities of a Prosecutor. The violation occurred in connection with a prosecution for an armed robbery. One key issue was the identification of the perpetrator. There was no physical evidence connecting the defendant to the crime. Larsen met with eyewitnesses to the robberies and showed them a single photograph of the Defendant and asked them if they “would be able to identify him as the robber at trial. No other photographs were shown. All of the witnesses indicated that they would be able to make the identification.” Opinion ¶ 10.

At trial, a husband and wife testified that they witnessed one of the robberies. On cross-examination Husband denied that he had been shown a photograph of the defendant. Larsen did not correct the testimony. The wife then testified and admitted on cross-examination that Larsen had met with her and shown her a single photograph of the defendant. The defense moved for a mistrial and the court granted the motion. The court found that Larsen had intentionally concealed the fact that he had shown the photograph to the witnesses from the defense. 

In the proceedings before the Utah Supreme Court, Larsen argued that he did not violate the rule because the defense learned of the photograph identification during the trial. The court rejected that argument and held that exculpatory evidence must be disclosed before trial to give the defense sufficient time to prepare for trial. 

In sum, this case is part of a small but growing trend to discipline prosecutors who fail to disclose exculpatory evidence.

Edward X. Clinton, Jr.

Filed October 28:

The ARDC hearing board charged a prosecutor with failing to reveal exculpatory information to the defense. The case is an unusual one in that the defense learned of the exculpatory statement before trial and was able to use that information in connection with the defense. Even more unusual is that the defendant was acquitted.

The prosecution witness, Hayes, informed the prosecutor before trial that he had been threatened by gang members and had exaggerated the role of the defendant in the crime.

The Panel’s opinion lays out a detailed description of the interview and the exculpatory information:

On November 26, 2010, in preparation for the Acosta trial, Respondent went to the jail to speak with Hayes. Shelton Green, the attorney representing Hayes, was also there. Green and Respondent were both aware of the statements Hayes had made in the jail. (Ans. at par. 13; Tr. 186-87, 207-211).
Green spoke privately with Hayes before they met with Respondent. Green testified, during that meeting Hayes told Green the affidavit was false and he signed it because he had been threatened. Hayes indicated he would testify consistently with the information he had given the State when he entered his plea. (Tr. 207-208, 213-18; Adm. Ex. 28).
Respondent and police detective Peraza then joined Hayes and Green. According to Respondent, Peraza was present to take notes and be available, if necessary, to testify to what was said. This was standard procedure, and Respondent assumed Peraza was taking notes. In fact, Peraza did not take notes. (Ans. at par. 13; Tr. 218, 292-93, 330-31).¹
During the November 26, 2010 meeting with Respondent, Hayes stated the affidavit was not correct. Hayes told Respondent he wrote the affidavit, based on what Stephens told him to write and did so because Stephens had threatened him. Hayes also told Respondent his original statement to police was true, except that Acosta had not set up the home invasion; Acosta was present, but another individual set up the home invasion. Hayes told Respondent four or five members of a rival gang threatened Hayes and forced him to give police an exaggerated account of Acosta’s involvement. (Tr. 219-20, 250-51; Adm. Ex. 28).
Green took notes during the meeting. He was the only person who did so. (Ans. at par. 13; Tr. 212). As they left the meeting Green told Respondent he would give her a copy of his notes. (Tr. 252, 413-14).
Respondent realized the statement Hayes gave on November 26, 2010 was contrary to the statement he had given to police on December 15, 2009. Respondent testified, since Hayes was in jail she considered his claims of threats absurd. Respondent did not give the November 26 statement any credence and thought Hayes simply no longer wanted to testify. (Tr. 342).
Respondent did not tell Taylor that Hayes recanted his prior statement during the November 26, 2010 meeting. Respondent also did not give Taylor any notes from that meeting. (Tr. 178-79). Between the November 26, 2010 meeting at the jail and the start of Acosta’s trial, Respondent appeared in court on the Acosta case on November 29, 2010, November 30, 2010 and December 8, 2010; Taylor or his partner was present each time. (Adm. Ex. 31 at 6-10).
Acosta Trial
The Acosta trial began on December 13, 2010. (Adm. Ex. 31 at 6-7). That day, Green gave Taylor and Respondent a copy of his notes. Hayes testified the next day. (Tr. 253-55, 418; Adm. Ex. 27 at 1, 3, 84-85).
Hayes’s testimony was the only evidence that linked Acosta to the incident. (Ans. at par. 21; Tr. 41, 138-39, 343). Initially, Hayes testified in a manner consistent with the statement he had given police on December 15, 2009. However, the story began to change on cross-examination, which revealed the other statements Hayes had made as well as his claims that those statements were, or were not, coerced. (Tr. 418-20; Adm. Ex. 27 at 37-42, 49-62).
On redirect, Respondent inquired about the statement Hayes had given police and asked why it included information which he now claimed was not true. In response, Hayes stated: “I was threatened by a lot of people to bring (Acosta) down, not just by the police.” (Adm. Ex. 27 at 68). On further questioning by Respondent, Hayes said he was threatened by Acosta’s rival gang members. (Adm. Ex. 27 at 68-69). This comment prompted an objection and motion for mistrial from Taylor. (Tr. 142; Adm. Ex. 27 at 69).
In response, Respondent explained Hayes previously testified his December 2009 statement to police was accurate, but now had testified differently. In that context, Respondent stated: “(t)his is the first time we’re hearing that something in that statement is incorrect.” (Adm. Ex. 27 at 70-71). Respondent asserted she had not previously heard that Hayes claimed to have been threatened by rival gang members. She stated she pressed the issue because she thought Hayes was confused. (Adm. Ex. 27 at 71).
After the court took a break and excused the jury and Hayes, the parties presented further arguments. (Adm. Ex. 27 at 72-82). Judge McGraw stated he intended to deny the motion for mistrial, as he did not believe the prosecution anticipated or could have foreseen Hayes’s comment about threats by rival gang members.. (Adm. Ex. 27 at 82-84).
At that point, Taylor informed the court of the November 26, 2010 meeting, at which, according to Green’s notes, Hayes stated rival gang member told him to “put this” on Acosta. Taylor also stated, while he was not suggesting Respondent had acted purposefully, Respondent had been present at the November 26, 2010 meeting. Taylor argued, consequently, the reference to a gang threat was foreseeable. (Adm. Ex. 27 at 84-86).
Respondent acknowledged Hayes made the statement Taylor described. She also indicated Green’s notes accurately reflected the conversation at the jail. Respondent stated, at that point in the meeting, they had been discussing the affidavit, not the statement Hayes had given police. The discussion of the affidavit led to a discussion of threats made while Hayes was in jail. Respondent stated the comment about threats from rival gang members referred to an incident that occurred in jail. (Adm. Ex. 27 at 85-87).
This discussion occurred before the court issued its ruling, denying the motion for mistrial. Instead, when the jury returned after a brief recess, the court gave a limiting instruction. Hayes resumed his testimony. (Adm. Ex. 27 at 87, 90, 94, 102-105). The following day, the trial concluded. Acosta was acquitted. (Adm. Ex. 38).
Judge McGraw testified before this Panel. Judge McGraw is the Chief Judge of the Seventeenth Judicial Circuit and a former prosecutor. (Tr. 35). He was the person who brought this matter to the attention of the ARDC. (Tr. 46-47). Initially, Judge McGraw believed Respondent did not know, prior to the Acosta trial, of Hayes’s claims he had been threatened. Judge McGraw’s view changed when, at Hayes’s sentencing hearing, he fully realized Respondent had been at the November 26, 2010 meeting. Judge McGraw no longer believed Respondent’s misstatement was unintentional. Given the seriousness of the charges against Acosta and importance of Hayes to the prosecution’s case, Judge McGraw did not believe an experienced prosecutor could forget the recantation by Hayes. (Tr. 40-45, 68-69).
Judge McGraw also noted the recantation by Hayes had not been turned over in discovery. From Judge McGraw’s perspective, Respondent should have, but did not, bring the Hayes recantation to his attention during Acosta’s trial, particularly during the argument on the motion for mistrial. (Tr. 44-46, 59, 68, 85-87). Given his concerns with the conduct overall, Judge McGraw reported the matter to the ARDC. (Tr. 46-47).
Respondent testified, when she said “this is the first time we’re hearing that something in that statement is incorrect,” she believed her statement was true and did not intend to mislead the court. (TR. 421-22, 424).

Comment: this case does not make much sense to me. There was a recantation by a witness and the information came out during the trial. There was no effort to hide the information or mislead. The panel’s recommendation may serve to encourage other prosecutors to comply with Brady obligations. This seems like an unusual case to use to send such a message.

Update: the Hearing Board decided to reprimand the prosecutor, but it concluded that she did not intentionally withhold evidence from the defense. That decision can be found at this link. http://www.iardc.org/HB_RB_Disp_Html.asp?id=11920
Further appeals are possible.

Edward X. Clinton, Jr.

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Proposed rule would require prosecutors to reveal post-conviction exculpatory evidence | Illinois State Bar Association:

This rule is a good idea and is long overdue in Illinois.

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