Interesting Question

Here's an interesting question which came up in court yesterday.

Under Brady v. Maryland et al, the prosecution is required to to turn over evidence which is exculpatory or impeachment material. However, what if there is no doubt the defendant did the crime (uncontested) and the defendant is trying to get evidence under Brady which would be used solely in an affirmative defense?

I did a quick bit of research yesterday and the cases clearly state that there is no obligation to turn over such evidence prior to a guilty plea. Still, that begs the question, is it constitutionally required at all? I never could find a case which specifed one way or the other.

Anybody know a case on point?

Addendum: For some unknown reason, Blogger isn't allowing me to put comments on this post. So, I thought I'd post them here.

ParatrooperJJ: In general, I agree that if it will not endanger third parties or other investigations (& any other such caveat which is slipping my mind at the moment), the prosecutor should share all evidence possible. However, consider a pro se defendant who is a felon caught with a firearm. He does not deny possession. Rather, he informs the court that he will be raising a duress/society made me do it/it's a dangerous world affirmative defense. In accord with his theory, he files for pretty much every record he thinks the county has related to violent crime over the last ten years (indictments, orders of conviction, copies of plea agreements, etc.). This is clearly outside of allowed discovery in Virginia, but the pro se argues it should be allowed under Brady. Judge won't go that far, but considers ordering 5 years of orders of convictions. (facts are made up out of whole cloth, but similar to case yesterday)

This doesn't impeach anybody or tend to prove he didn't possess the firearm. Should the government be obligated? If so, what is the constitutional basis and where do you draw the line?

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Anon: Yes, an affirmative defense is a defense. However, it's a "Yeah, but . . ." defense; a defense wherein the act the prosecutor is alleging is admitted. If there was anything tending to negate the act the prosecution would clearly be required to turn it over. However, nothing tending to prove an affirmative defense negates the act. Therefore, the question is whether the prosecution is required to turn over evidence which does not tend to disprove the act because the evidence may be consistant with an affirmative defense the defendant may present at trial.