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.S.79, 106 S.Ct.1712, 90 L.Ed.2d 69 (1986) (race); see alsoJ.E.B.v.Alabama, 511 U.S.127, 114 S.Ct.1419, 128 L.Ed.2d 89 (1994) (gender), Powersv.Ohio, 499 U.S.400, 111 S.Ct.1364, 113 L.Ed.2d 411 (1991).158See cases supra note 157. § 9.12 TRIAL AND PUNISHMENT 465peremptory challenges.Although the prosecutor need not have any particularreason for using a peremptory challenge, such challenges may not be used to159exclude potential jurors solely because of their race or gender.E.Waiver of the Right to Jury TrialUnder the common law of England, trial by jury was required for all seri-160ous offenses.The defendant could not waive a jury and be tried by a judge.Although consent was technically required, the defendant could be tortured161into submission.Even after torture ceased, the accused had no choice as tothe mode of trial.Jury trials were the only type available.In modern times, all jurisdictions offer bench trials as an alternativeto jury trials.Still, the ability to waive a jury trial is often restricted.Theright to waive a jury trial and be tried by a judge is often conditioned uponthe approval of the court, the prosecutor, or both.Conditioning the right towaive a jury trial upon approval of the prosecutor or court does not violatethe Sixth Amendment because the only constitutional right a defendant has162concerning the mode of trial is the right to be tried by a jury.§ 9.12 Preservation and Disclosure of EvidenceFavorable to the DefenseThe prosecutor occupies a unique position in our adversarial system ofcriminal justice.Several decades ago, the Supreme Court observed:The United States Attorney is the representative not of an ordinary party toa controversy, but of a sovereignty whose obligation to govern impartially isas compelling as its obligation to govern at all; and whose interest, therefore,in a criminal prosecution is not that it shall win a case, but that justice shallbe done.As such, he is, in a peculiar and very definite sense the servant ofthe law, the twofold aim of which is that guilt shall not escape or innocencesuffer.He may prosecute with earnestness and vigor indeed, he should doso.But, while he may strike hard blows, he is not at liberty to strike foulones.It is as much his duty to refrain from improper methods calculated toproduce a wrongful conviction as it is to use every legitimate means to bring163about a just one.159Miller-El v.Dretke, 545 U.S.231, 125 S.Ct.2317, 162 L.Ed.2d 196 (2005); Snyderv.Louisiana, 552 U.S.472, 128 S.Ct 1203, 170 L.Ed.2d 175 (2008).160Singer v.United States, 380 U.S.24, 85 S.Ct.783, 13 L.Ed.2d 630, 633 634 (1965) (defen-dant s only constitutional right concerning method of trial is to an impartial trial by jury).161Id.162Note, Constitutional Law: Criminal Procedure: Waiver of Jury Trial: Singer v.UnitedStates, 308 U.S.24 (1965), 51 CORNELL L.REV.339, 342 343 (1966).163Berger v.United States, 295 U.S.78, 88, 55 S.Ct.629, 633, 79 L.Ed.1314, 1321 (1935). 466 CONSTITUTIONAL LAW § 9.12This observation marked the beginning of a line of cases that eventuallydeveloped into two constitutional duties imposed on the prosecution and, indi-rectly, the police.The first duty is to disclose to the accused any evidence withinthe government s possession or knowledge that is favorable to the accused andmaterial to guilt or punishment.The second duty is to preserve evidence thatmight be expected to play a significant role in the defense.Both obligations aregrounded on the fundamental fairness implicit in due process, rather than onspecific language found in the Constitution.Figure 9.4Comparison of Police Obligations to Preserve and Disclose Exculpatory EvidenceDuty to preserve Duty to disclosePolice have a duty to preserve Police have a duty to make sure that thephysical evidence that: prosecutor is aware of all evidence knownto the police or anyone under theircontrol that may help to:1.has an exculpatory value 1.show that the defendant is innocentthat tis apparent to them; 2.counter the prosecution s version ofand the events; or2.is of a type that the 3.challenge the credibility of keydefense cannot obtain by prosecution witnesses.other means.A.The Requirements for Disclosure ofExculpatory InformationThe prosecution s obligation to disclose exculpatory information evolvedfrom cases in which the prosecutor had either knowingly used false testi-164 165mony or allowed false testimony to go uncorrected.When this happened,the Supreme Court had little trouble concluding that use of perjured testi-166mony denied the defendant due process.However, in Brady v.Maryland, theSupreme Court took a broad leap and transformed what had begun as a narrowdoctrine concerned with the use of perjured testimony into a broad obligationto disclose all evidence within the government s possession or control favor-able to the accused that is material to guilt or punishment.In Brady, the prosecutor failed to disclose that one of Brady s accom-plices had confessed to the killing for which Brady was charged, even thoughhis attorney made a formal request for any such statements.Brady was sen-tenced to death, but the Supreme Court reversed, announcing what has becomeknown as the Brady rule:164Mooney v.Holohan, 294 U.S.103, 55 S.Ct.340, 79 L.Ed.791 (1935).165Alcorta v.Texas, 355 U.S.28, 78 S.Ct.103, 2 L.Ed.2d 9 (1957).166373 U.S.83, 83 S.Ct.1194, 10 L.Ed.2d 215 (1963). § 9.12 TRIAL AND PUNISHMENT 467[T]he suppression by the prosecution of evidence favorable to an accusedupon request violates due process where the evidence is material either toguilt or to punishment, irrespective of the good faith or bad faith of theprosecution.The principle.is not punishment of society for misdeeds of aprosecutor but avoidance of an unfair trial to the accused.A prosecutionthat withholds evidence on demand of an accused which, if made available,would tend to exculpate him or reduce the penalty helps shape.a proceed-ing that does not comport with standards of justice, even though, as in the167present case, his action is not the result of guile. The duty established in Brady does not depend upon proof that the pros-ecutor acted in bad faith.The rule is premised on recognition that whenever thegovernment withholds evidence that could change the outcome of a case, theintegrity of the verdict is compromised.Failure to comply with Brady created alast-minute crisis in the Timothy McVeigh prosecution.McVeigh was convictedof bombing the Oklahoma City federal building and killing 168 people.Shortlybefore his scheduled execution, the FBI discovered 3,135 pages of documentsthat McVeigh s lawyers had never seen.The execution was postponed so thata judge could review the material to determine whether it contained anythingthat might have changed the outcome.Nothing was found and the execution168was rescheduled.Had the evidence against McVeigh been less clear, the FBI sblunder could have cost the government a conviction that took millions of dol-lars and years to obtain, and left the families of the victims without closure.1.Types of Evidence that Must Be DisclosedThe constitutional duty to disclose extends to evidence that is favorableto the accused and material either to guilt or to punishment.It is impossibleto formulate a comprehensive list of evidence that must always be disclosedbecause this list varies with the nature of the crime, the background (includingcriminal histories) of government witnesses, the prosecution s theory of thecase, and other factors [ Pobierz caÅ‚ość w formacie PDF ]