Prosecutorial Misconduct: Has Withholding Evidence Become Common?

Prosecutors have a Constitutional duty to turn over any exculpatory evidence to the defense, particularly when that evidence could affect the verdict or sentence. Although generally prosecutors fulfill this legal duty to the defendant and to justice, Chief Judge of the U.S. Court of Appeals for the Ninth Circuit, Alex Kozinski, warns in his recent dissent that prosecutorial misconduct has become an “epidemic.” A New York Times editorial highlights this case and calls for reform.

In the seminal case, Brady vs. Maryland, the Supreme Court held that a defendant must have the right to have evidence found by the prosecution revealed to the defense, when that evidence has the potential of affecting the outcome of a criminal case. Judge Kozinski wrote his dissent in a case where a man was convicted of producing the toxin ricin, for use as a weapon. In that case, the prosecutor was fully aware that the forensic scientist who worked on the case had multiple instances of doing sloppy scientific work that led to wrongful convictions, and had been subsequently been fired. However, the prosecutor failed to reveal this crucial information to the defense. This is termed a “Brady Violation.”
As Judge Kozinski bluntly put it, “there is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” Indeed, some statistics show that 43% of wrongful convictions come about through some form of official misconduct, including failing to provide important evidence that could have opened the door to reasonable doubt. No matter how insignificant the prosecutor may believe the exculpatory evidence is when measured against other evidence, the duty to reveal it stands. This is just another reason why hiring an experienced and diligent defense attorney is so crucial. At Herman Law, P.A., we have over a decade of experience working on both sides of the criminal justice system, having previously served as a prosecutor, and are dedicated to tirelessly protecting our clients. Visit us at or call 561.514.0415 for your free and confidential