A landmark case in 1963 established the requirement that prosecutors must turn over exculpatory (evidence favorable to the defense) to defense attorneys; the case was Brady v Maryland. Later cases expanded the protections for defendants to law enforcement and otherwise did the right thing.

Fast forward to now and although the Constitution requires defendants to be presumed innocent until the state can prove guilt beyond a reasonable doubt – Brady rights are too often cast aside by sloppy law enforcement, zealous prosecutors, and judges facing re-election.

When the police believe they “have the right guy”, at a minimum there's a bias toward conforming the evidence to that assumption. At a maximum the defendant gets railroaded, never hears about exculpatory information, evidence, and witnesses the prosecutor or police or all knew about. Brady rights be damned.

You see the phenomenon in the news at least weekly where some poor guy became a likely target 25 years ago and just now a cop wants to come clean on his death bed. A guilty person got away and the defendant's life was blown up in every possible way.

I'm a defense attorney and see this every week to one extent or another. Here's the new Guilty until Proven Innocent landscape today as I see it.

Confirmation Bias & Brady Disclosure

In April 2015, there was an interesting exchange at the District of Columbia Court of Appeals (In re Kline, 113 A.3d 202 (D.C. 2015); in response to an issue that was raised in the court about Brady disclosure, prosecutor Kline said, “Not sure how one could conjure up a Brady argument in this case since there was no doubt that Shelton [the defendant] was the shooter.”

This is a classic case of confirmation bias, namely, the fact that prosecutors and law enforcement officers often seek information that confirms their preexisting opinion. This often leads prosecutors to ignore potentially exculpatory evidence.

The number of cases in which law scholars have observed this behavior makes it impossible to list every occurrence.

The judge´s response to Kline in DC was point blank, “That is why Brady doesn't leave it up to the prosecutor, for that very reason. You are always sure you have got the right guy or you wouldn't be prosecuting.”

For defense attorneys today, obtaining full disclosure of exculpatory evidence requires a lot of hard work; it is made extremely difficult, if not impossible, by prosecutors, judges, and law enforcement officers alike.

Brady Violations Only Taken Seriously on Television

Everyone who watches the near-endless stream of pro-prosecution/law enforcement hit pieces on television every night, such as Law & Order, SVU, CSI, NYPD, et cetera ad nauseam, knows that when cops or District Attorneys  either intentionally or negligently fail to turn over exculpatory evidence, that is a “Brady violation” which is treated seriously by the courts and can even result in a dismissal, even in serious cases.

That is what is supposed to happen, but it is seldom the case. There is substantial research and statistical data to back the notion that judges routinely fail to take action on Brady violations.

As a California criminal defense attorney, this is something I always have to take into account. I try to raise awareness about these issues in my upcoming book, California: State of Collusion, because I believe that public exposure of such irregularities is our only hope to salvage the corrupt California legal system we have to deal with today.

Law enforcement officers are under pressure to make arrests. Their confirmation bias is not to be underestimated, and neither is their urge to conceal evidence that might jeopardize their case against a suspect. Brady disclosure is one of the tools we as defense attorneys have to counter these problems, which (if left unadvocated) can often have devastating effects on a defendant´s case.

Yes Confirmation Bias is a Thing – Documentary Series

Confirmation bias was also observed in the case against Steven Avery, made popular by the documentary series Making a Murderer. It has recently come to light that bones found on Avery's property were identified as belonging to his victim on police records, six weeks prior to when the actual identification of the remains occurred.

According to an investigative piece by Rolling Stone, “The inconsistencies and dates on the death certificate seem to imply that the paperwork was pushed through quickly in order to charge Avery.”

As per Brady disclosure, these documents would have to be in possession of the defense all along. The sad truth is that we, defense attorneys, must often fight to a phenomenal degree against the System to get access to such crucial exculpatory or impeaching evidence that, per Brady, should have been delivered to us immediately upon discovery by the State.

The battle for transparency in our legal system has only just begun, and I plan to keep fighting for a defendant's Constitutional rights until my last breath.

If you're in trouble and believe law enforcement or a District Attorney is playing fast and loose with the rules and evidence – you're probably right.

Call me. I'm attorney Joseph Tully and my California Criminal Defense law firm has an exceptional record in these cases.