Only the prosecutor, not any third party, owes a criminal defendant a duty to disclose material exculpatory evidence, and even the prosecutor need not disclose such evidence if it is developed by a third party not acting under the prosecutor’s control. Under Brady v. Maryland (1963) 373 US 83, a prosecutor must disclose material exculpatory evidence to a criminal defendant. This decision holds that the duty to make such a disclosure lies solely on the prosecution, not on any persons who may be cooperating with or acting under the control of the prosecutor. Furthermore, the duty to disclose encompasses evidence developed by third parties only when they act as a member of the prosecution team subject to the government’s control. Merely interacting with the prosecution is not sufficient. Here, the complaining witness, a business, which claimed its former CEO embezzled considerable sums over a 10-year period through complex financial transactions was not a part of the prosecution team even though the business gave the prosecutor some legal authorities on an issue common to the criminal case and to a civil case it brought against the former CEO and even though the business hired a forensic accountant to make sense of the complex business records–something the prosecution had neither the skill to do itself or the money to pay an outside expert to perform. Hence, the trial court erred in ordering the business to disclose allegedly exculpatory evidence to the CEO as a defendant in the criminal case.
California Court of Appeal, First District, Division 3 (Jenkins, J.); June 5, 2017; 2017 WL 2417905