Two Assistant District Attorneys in Oklahoma were recently fired for allegedly withholding favorable evidence from the defense. The prosecutors' misconduct is known as a Brady Violation.
David Prater, the Oklahoma County District Attorney, said that these prosecutor did not turn over an inconsistent statement by a witness. Therefore, on April 5, he fired them. He also forwarded the information for possible disciplinary action as well as the State Attorney General's office for criminal investigation.
Prater did the tough but right thing in this case. One reform that could get around some of these problems would be for states to adopt an "open file" policy. That would remove from prosecutors the discretion to determine what evidence is and isn't exculpatory as they'd have to turn everything over. However, this kind of policy requires sanctions if it isn't followed. In Johnson County, Kansas, where I do the majority of my criminal defense law practice, the district attorney's office has an open file policy. This helps ensure fair play and limits Brady violations and their office should be commended for generally providing all information. However, I have not been made aware of set sanctions for failing to provide all information. Furthermore, there are times when not everything is provided until after the preliminary hearing. For example, recordings which involve a confidential informant (CI) are not revealed unless you push the issue. Also, there are times when you have to actively pursue some discovery. For example, sometimes the prosecutor simply doesn't have some videos or important information in their file. Having an open file policy doesn't necessarily alleviate all concerns about Brady violations. Alas, the prosecutor has a duty to provide information they reasonably should know and have available to them. In other words, they can't just close their eyes because they haven't seen the video which was easily available to them if they simply asked for it. For example, if there is a video at a department store of an alleged theft, it is arguable that they have a duty to get it, especially if it arguably has beneficial or exculpatory evidence on it for the defense. As a criminal defense lawyer, it's important to actively participate in the discovery process