Constitutional right to obtain exculpatory evidence from prosecutors extends to plea-bargain phase

|The Volokh Conspiracy |

[UPDATED BELOW 11/19/2015]

I don't know a whole lot about criminal law and procedure, nor am I an expert on the constitutional constraints under which police and prosecutors operate during criminal investigations and trials. But this looks like an important decision, from the West Virginia Supreme Court last Tuesday (Buffey v. Warden, opinion available here): that prosecutors violate a criminal defendant's due process rights if they withhold potentially exculpatory evidence from the defendant while negotiating a plea bargain.

The defendant (Buffey) pleaded guilty in 2002 to a charge that he robbed and raped an elderly woman. At the time they were negotiating the plea agreement, prosecutors had processed DNA evidence from the rape kit, which did not contain any of Buffey's DNA; although Buffey requested the evidence, it was not disclosed to him.

The West Virginia court holds that the failure to turn over that evidence unconstitutionally deprived Buffey of his due process rights and entitles him to withdraw his guilty plea. Under the so-called Brady Rule (Brady v. Maryland (373 US 83 (1963)), it has long been clear that prosecutors have to turn over potentially exculpatory evidence in their possession to the defendant at trial; but surprisingly (to me), there appears to be a split of authority, and the Supreme Court has not spoken, on whether they must also do so during the process of plea bargaining, before a defendant formally admits guilt and is sentenced. This is (obviously) of enormous practical significance for the behavior of police and prosecutors, given that more than 90 percent of criminal convictions are the result of plea bargains, and the W VA court here joins a small number of other courts in holding that they must.

In Brady, the United States Supreme Court observed that "our system of the administration of justice suffers when any accused is treated unfairly." Seeking to alleviate unfair treatment, the Court held that "the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id.

There are three components of a constitutional due process violation under Brady: (1) the evidence at issue must be favorable to the defendant as exculpatory or impeachment evidence; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must have been material, i.e., it must have prejudiced the defense at trial.

[The Supreme Court has] held that defendants possess a Sixth Amendment right to counsel that extends to the plea bargaining process. This conclusion is premised, in part, upon the fact that "criminal justice today is for the most part a system of pleas, not a system of trials. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas[.]" "In today's criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant." The Supreme Court has concluded that "the right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining plays in securing convictions and determining sentences." …

Having scrutinized the reasoning of other jurisdictions, this Court finds that the better-reasoned authority supports the conclusion that a defendant is constitutionally entitled to exculpatory evidence during the plea negotiation stage. Often the decision to plead guilty is heavily influenced by the defendant's appraisal of the prosecution's case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted. Permitting a prosecutor to withhold exculpatory evidence during a defendant's evaluation of a plea offer would essentially "cast[] the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice." Brady, 373 U.S. at 88.

[Thanks to Samuel Kaplan for the pointer.]

[UPDATE: My original posting left the mis-impression that this was the first court to hold that prosecutors must turn over exculpatory evidence during plea negotiations. It is not. Some state courts (e.g., Colorado, see In re Attorney C, 47 P.3d 1167 (Colo. 2002)) impose that obligation as part of its supervisory role over attorney conduct, while several others (e.g. United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998); Sanchez v. United States, 50 F.3d 1448, 1453 (9th Cir. 1995); White v. United States, 858 F.2d 416, 422 (8th Cir. 1988)) have done so held as a matter of constitutional due process. There is contrary authority as well—which should make the matter ripe for Supreme Court resolution at some point.]

[UPDATE 2—And as it happens, another reader points out that a cert petition to SCOTUS has indeed been filed in a case, Charles Ray Hooper v. United States, No. 15-6081, raising this issue]