Prosecutors are required to turn over evidence that is favorable to the accused — called “Brady material” after a landmark 1963 Supreme Court decision Brady v. Maryland, 373 U.S. 83 (1963) — regardless of other discovery rules. But the high court never set deadlines, and lower courts have split over whether Brady material must be turned over before a plea, reported Beth Schwartzapfel of The Marshall Project.
What constitutes such evidence is left to prosecutors to determine, and the line is not always clear. In 35 percent of the cases in the National Registry of Exonerations — 711 in all — officials withheld exculpatory information.
The New York court system is expected to soon approve a rule change: Judges would issue an order in criminal cases reminding prosecutors of their Brady obligations. The order does not change what prosecutors must turn over, but it would for the first time allow judges to hold in contempt prosecutors who willfully violate the obligation.
But the deadline in the order is 30 days before trial — well after most plea negotiations have taken place.
The pressure to plead can be enormous, especially because offers tend to go up as time goes by. In some jurisdiction in Pennsylvania, Defendants are expected to agree to a plea at the Preliminary Hearing while having only the information that is in the criminal complaint and affidavit of probable cause.
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