Fifty years ago in Brady v. Maryland, the Supreme Court held that “evidence favorable to the accused . . . where the evidence is material either to guilt or punishment” must be disclosed to the defense.Fewer than ten years later, in Giglio v. United States, the Court ruled that prosecutors must disclose information that impeaches the credibility of a government witness, including benefits that have been provided, promised, or offered to the witness. Despite the clarity of these rulings and the increasing public outcry for more just prosecutions, one significant source of impeachment information is routinely withheld from the defense—information about crime victims’ fund requests.
Every jurisdiction in the United States provides money to compensate victims and witnesses of crime. Most of these funds compensate victims and witnesses for losses, trauma, and even for re-location of victims or witnesses of crime. The payouts from these funds can amount to thousands of dollars depending on the severity of the crime, the importance of the witness to the case, and the services needed. In impoverished communities, which suffer from high levels of crime, many people regard these programs as a potential source of needed money. However, the money comes with certain obligations for the recipient. A universal feature of victims’ funds is a requirement that, in order for the victim or witness to access the resources of the program, she must cooperate with law enforcement throughout the pendency of the criminal case, all the way to trial.
Despite the financial incentives for government witnesses created by victim-fund payments, prosecutors generally do not disclose information regarding these payments. In most instances, cases are tried without the defense ever being made aware of the requests for funds. Even in cases where specific requests for such information are made by the defense, prosecutors argue that they need not disclose the information because the money is funded and administered by the court or some other branch of the state, not the police or district attorney’s office. This justification for non-disclosure, however, ignores the substantial control prosecutors and police have over the disbursement of these funds. Another excuse given in some jurisdictions is that the information is confidential. That explanation ignores longstanding precedent. Given that this information would prove useful to the defense in impeaching a witness who had received money through one of these funds, this article seeks to answer the question of whether the practice of withholding victim’s funds payment information runs contrary to the Supreme Court’s decisions in Brady v. Maryland and Giglio v. United States.
This article demonstrates SCOTUS language on standard of review is dictum and argues they should reconsider the dictum.
This article evaluates the efficacy of the Brady disclosure regime in a capital cases and outlines a constitutional remedy.
This article reflects on Milke as a case study, and proposes awareness of how Brady violation can interact with risk factors and damage adversarial process.
Fifty years after Brady v. Maryland, defense attorneys around the United States continue to struggle to get basic information from prosecutors. This is even more of an issue in the ninety-four to ninety-seven percent of criminal cases that are resolved