The Prosecutor's Disclosure and the Late Witness
Devon is charged with armed robbery of a convenience store. The prosecution's case rests on a store clerk's identification and a partial fingerprint. Two weeks before trial, the prosecutor learns that a second clerk, who was present during the robbery, told police she "wasn't sure" the defendant was the robber and that the first clerk had been shown a photo array in which Devon's photo was the only one with a visible height chart behind him. The prosecutor does not disclose either fact to the defense. At trial, the first clerk identifies Devon. After conviction, defense counsel learns of the second clerk's statement and the suggestive array. Devon moves for a new trial, alleging a Brady violation and ineffective assistance of counsel because his lawyer never requested the array materials.
1. Has the prosecution committed a Brady violation? Apply the three elements.
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Brady requires disclosure of favorable, material evidence that is in the prosecution's possession. Three elements:
- Favorable to the defense: The second clerk's uncertainty and the suggestive photo array both impeach the identification - the core of the case. Both are favorable.
- Suppression by the prosecution: The prosecutor knew of both facts and did not disclose them. Actual knowledge and non-disclosure satisfy this element; the defense need not have requested the evidence.
- Materiality: Evidence is material if there is a reasonable probability that disclosure would have changed the outcome. Here the identification is the linchpin, and the array was suggestive (only Devon's photo had a height chart). A second witness's doubt plus a suggestive procedure creates a reasonable probability of a different result.
Conclusion: All three elements are likely met. The prosecutor's failure to disclose is a Brady violation, and Devon is entitled to a new trial regardless of whether his own counsel was deficient.
2. Did defense counsel provide ineffective assistance by failing to request the photo array materials?
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Strickland requires (1) deficient performance and (2) prejudice.
- Performance: A reasonably competent defense lawyer in an identification case would ordinarily request the photo array, the array instructions, and any witness statements. Failing to do so is likely deficient, especially where identification is the only real evidence beyond a partial print.
- Prejudice: Even if counsel was deficient, Devon must show a reasonable probability of a different outcome. The Brady violation independently establishes prejudice - the suppressed evidence would likely have been discovered and used.
- Interaction with Brady: Courts often note that a Brady violation does not excuse counsel's own failures, but the two claims reinforce each other. If the prosecution suppressed evidence, counsel's failure to request it may be less culpable; nonetheless, the standard is objective reasonableness.
Conclusion: Counsel's performance was likely deficient and prejudicial, so the ineffective-assistance claim probably succeeds. But because the Brady claim alone warrants relief, the court may grant a new trial on that ground without reaching Strickland.