"We also agree, and the State concedes, that the duty to disclose is
ongoing and extends to all stages of the judicial process."
"We do not refer to the state's past duty to turn over exculpatory
evidence at trial, but to its present duty to turn over exculpatory
evidence relevant to the instant habeas corpus proceeding."
High v. Head,
209 F.3d 1257 (11th Cir. 2000)
The State's duty to disclose exculpatory material is ongoing.
Osborne v. District Attorney’s Office for Third Judicial Dist.,
423 F.3d 1050 (9th Cir. 2005)
Heck v. Humphrey rule did not preclude § 1983 action filed by state prisoner seeking to
compel state to release certain biological evidence that was used to convict him for DNA
testing.
United States v. Piers,
2005 WL 2122126 (D. Alaska. July 25, 2005)
In § 2255 proceeding where petitioner sought full discovery of prosecution and law
enforcement files, court found that petitioner was entitled to have prosecutor revisit files
for any Brady material that was not disclosed during trial, including: evidence of any
“side deals,” evidence regarding decision whether to prosecute chief witness’ sister,
certain fingerprint evidence, and evidence related to a person named “Adam” known to
law enforcement with regard to this case. In camera review was not deemed necessary
unless prosecutor attempted to rely on work product privilege. Law enforcement officers
were also ordered to provide affidavits indicating compliance with Brady.
Osborne v. District Attorney’s Office for Third Judicial Dist.,
445 F.Supp.2d 1079 (D. Alaska 2006)
In § 1983 action by state prisoner seeking access to biological evidence for DNA testing,
district court found that “there does exist, under the unique and specific facts presented, a
very limited constitutional right to the testing sought.” In reaching this conclusion, the
district court noted: (1) such testing was not available at the time of trial; (2) the testing
can be easily performed without cost or prejudice to the Government; and (3) the test
results would either confirm the prisoner’s guilt or provide evidence for him to use to
seek a new trial.
People v. Garcia,
17 Cal.App.4th 1169, 22 Cal.Rptr.2d 545 (Cal. App. 1993)
"The duty of disclosure . . . does not end when the trial is over.
'[A]fter a conviction the prosecutor also is bound by the ethics of his
office to inform the appropriate authority of after-acquired or other
information that casts doubt upon the correctness of the conviction.'
Imbler v. Pachtman, 424 U.S. 409, 427, fn. 25 (1976); see also
People v. Gonzalez, 51 Cal.3d 1179, 1261 (1990); rule 5-220,
Rules Prof. Conduct of State Bar; ABA
Model Code Prof. Responsibility, DR 7-103(B), EC 7-13; ABA Model Rules
Prof. Conduct, rule 3.8(d)."
State v. Bennett,
81 P.3d 1 (Nev. 2003)
"The State, of course, has an affirmative duty to provide favorable
evidence, if material, to a defendant even absent a request for the
evidence. Moreover, that duty exists regardless of whether the State
uncovers the evidence before trial, during trial, or after the defendant
has been convicted." at 9 (footnotes omitted.)
Canion v. Cole,
91 P.3d 355 (Az. App. 2004)
"The defendant's right to due process with regard to the disclosure
of exculpatory evidence does not cease to exist after the verdict is
rendered; the prosecution has a continuing duty to provide such evidence
as was unlawfully withheld, including in the context of a PCR
proceeding." "On the record before us, it appears that Canion has shown
good cause and made colorable allegations of newly discovered materials
suggesting that evidence that should have been disclosed to him was not.
The trial court erred by not considering his claims in the light of the
State's continuing duty to disclose such information as due process
requires."
People v. Sterling,
787 N.Y.S.2d 846 (2004)
Because the state constitution’s due process clause required the state to provide
continuing discovery of material evidence, the application for DNA testing of person
convicted in 1992 should be heard. One portion of the evidence that the applicant
requested had some likelihood of being exculpatory and so it was ordered to be produced
and the parties were to agree on a testing protocol. Costs of testing were assigned to the
applicant.
People v. Rawl,
2005 WL 2374747 (Cal. Ct. App. Sept. 28, 2005) (unpublished)
In drunk driving case where defendant learned after his conviction on three of four counts
that law enforcement had launched an investigation of the officer who operated the
spectrometer in his case for alleged mistakes in drug analysis in other cases, the court of
appeal noted that the state’s continuing duty to disclose meant that a Brady violation
could have occurred despite the fact that the State was not aware of the officer’s
misconduct until after the conclusion of trial. On the particular facts, however, it
concluded no Brady violation had occurred.
Duckett v. State,
918 So.2d 224 (Fla. 2005), cert. denied, Duckett v. Florida, 127 S.Ct. 103 (2006)
Noting existence of continuing duty to disclose, but finding that under the circumstances
of this case, petitioner’s Brady/Kyles motions would be successive.