True Stories of Law & Order- Dwyer & Fio on crime, justice, and candy -

Jack McCoy has a habit of playing fast and loose with the rules. He also isn’t very fond of disclosure. Back when old Jack was Executive ADA his assistants often had to convince him to disclose favorable evidence to the defense. The lovely ladies weren’t soft-hearted; they were being pragmatic—and practicing safe law.

According to the model rules of professional conduct (and a little old ruling by the Supreme Court), “a prosecutor in a criminal case is duty-bound to make timely disclosure to the defense of all evidence known to the prosecutor that supports innocence or mitigates the offense.” In other words, if Jack has evidence that supports Jill’s contention of innocence, he is required by law to hand it over to her defense attorney.

The disclosure requirement was established in the now famous case Brady v. Maryland. Decided by the Supreme Court in 1963, Brady made it the prosecutor’s affirmative duty to turn over all material evidence in its possession that was favorable (potentially exculpatory) to the defense.

What’s material? Any evidence that tends to directly or indirectly oppose guilt, support defense testimony or motions that may weaken the prosecution’s case, or impeach a prosecution witness’s credibility. Such evidence may include statements, fingerprints or other physical evidence, and more.

Evidence that incriminates the defendant does not have to be turned over to the defense. Gossip, rumor, speculation, and hearsay are also excluded from the Brady rule.