Withholding Evidence

One of the most damaging forms of prosecutorial misconduct is when law enforcement suppresses potentially exculpatory evidence (points to innocence) or impeachment evidence (undermines the credibility of a prosecution witness), which can be a violation of Brady v. Maryland. States, including New York, also require that prosecutors turn over specific types of evidence, such as statements of a trial witness (People v. Rosario evidence) and evidence that tends to mitigate the degree of the offense. When provided in a timely and transparent fashion, such disclosures can permit the defense to investigate and litigate different leads, present evidence that the prosecution’s case or witness testimony is inaccurate or false, present evidence of the accused’s innocence to the jury, and ultimately, to protect the accused from a wrongful conviction. The National Registry of Exonerations found that suppression of Brady evidence played a role in over 44 percent of known wrongful convictions and 61 percent of known wrongful convictions for murder.