This may come as a surprise, but in criminal cases, prosecuting attorneys are required to investigate the possibility that defendants are innocent. They have a constitutional duty to turn over evidence tending to prove a defendant’s innocence even when that information was known to some other government entity, like the police. For a long time that duty required the information to be otherwise unavailable, but not anymore.
The Constitution requires criminal defendants to be presented with the evidence against them and to be allowed to cross-examine witnesses. In the 1960s, the U.S. Supreme Court ruled that to satisfy these requirements, prosecutors had to provide defendants with any evidence they find that might tend to prove the defendant not guilty. That’s right, the prosecutor – who is trying to prove the defendant is guilty – must give up any evidence that he or she is wrong. This is because prosecutors, as government actors, have far more resources to investigate and prove their cases. People who make statements to police officers may not be willing to repeat them to defense attorneys or defendants.
But since 1998, defendants claiming that Michigan prosecutors weren’t doing their job had to show that the information withheld couldn’t have been found through other reasonable means. For example, even if a withheld telephone log showed that the Defendant was at home on the phone when a robbery occurred, the defendant could not have claimed a constitutional violation because he could have subpoenaed the telephone logs from the provider directly.
But now, the Michigan Supreme Court has changed that rule. It found that the added “reasonable diligence” requirement forced defendants to “scavenge for hints of undisclosed” evidence. But the burden of disclosure is on the prosecutor, not the defendant, so the defendant can’t be required to do the hunting.
Instead, the Court went back to the original test set by the Supreme Court in the 1960s. There is a constitutional violation requiring a new trial if the defendant shows:
- The evidence works in the defendant’s favor by proving innocence or discrediting witnesses;
- It was suppressed by the prosecutor either accidentally or on purpose; and
- The outcome of the trial would likely have been different if the evidence had been produced.
The defendant does not have to show he or she couldn’t have gotten the evidence elsewhere.
Prosecutorial misconduct has been in the news lately, as more prosecutors are getting caught withholding evidence to win their cases. Now the Michigan Supreme Court has made it clear it will not tolerate that behavior by making it easier for defendants to get new trials when the prosecutors play games with the evidence. If you know someone who has been charged with a crime, contact attorney Lisa J. Schmidt for a consultation.