Bar questions that pop in the night (from watching tv)

What is the rule when the prosecution has exculpatory evidence not available to the accused?  What if the judge himself has this evidence but it is only from his personal knowledge?

What is the remedy at pre-trial? Trial? On appeal? After final conviction?

Any brightstarts with answers on the ready, please comment or send me email.

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4 thoughts on “Bar questions that pop in the night (from watching tv)

  1. What is the rule when the prosecution has exculpatory evidence not available to the accused?
    — This is exactly what “In the Name of the Father” (Movie) is all about. 🙂 Ideally, the prosecution cannot and should not withhold evidence that is within its custody, knowledge or control.

    What if the judge himself has this evidence but it is only from his personal knowledge?
    — Rules of Court dictate that a judge cannot use any evidence not admitted or found on the records. There are exceptions like when the said “exculpatory evidence” is of judicial notice or a conclusive presumption or if disputable, remained undisputed.

    Now, remedies would depend on the circumstances. But if the prosecutor has integrity, he will raise and use that exculpatory evidence and let the judge decide and appreciate whether the said evidence is indeed exculpatory or not. As one of my prosecutor friends said: “We (Prosecutors) are here not only to enforce the law but also, and more importantly, to seek for the truth.”

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    1. Thanks!
      But a prosecutor who wants to “win at any cost” only has his conscience to deal with? How can the defense compel discovery? Is there a point where the defense can extract an admission, such that a false statement can be a later basis to reverse a conviction?

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  2. I think it would be better to consider first whether the defense knows that there exists an “exculpatory evidence” or not.

    Usually, the defense knows that there is an “exculpatory evidence”. If the evidence is under the control of the prosecution, then the defense may compel the prosecution to show it in court for the court’s appreciation. The hard part is letting the judge agree that it is indeed exculpatory.

    The worst case scenario is that the defense has no knowledge that an exculpatory evidence exists and the prosecutor wants to “win at any cost”. The end result is injustice with flying colors.

    Anyway, like in the movie “in the name of the father”, if later on it will be discovered that indeed an exculpatory evidence existed but which existence was kept away from the knowledge of the defense, an acquittal is in order. Then, again, it would depend if the reviewing court would agree that it is indeed exculpatory.

    Is there a point where the defense can extract an admission?
    Yes, there is. The prosecutor may be called to “testify” or explain on exceptional cases such as when his credibility as prosecutor based on withholding of criminal evidence is put on issue.

    A false statement is sometimes a basis for reversal of conviction. But the line between what is true and false is sometimes hard to explain given an adversarial court setting. Also, sometimes what is false becomes true when the defense failed to timely object or present a contrary evidence thereto. You always have to get the judge agree that you are the ones telling the truth. And that process of making the judge agree is not an easy task. This is where the skills of lawyers are tested, hailed and most of the time, taunted.

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    1. Thanks for clarifying.. I presume the hard part is when the accused has been convicted and is already doing time, and the defense has to make a showing to somehow “reopen” the case. But I’m unsure that this is the correct legal terminology.

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