October 5, 2021
By Veronica J. Finkelstein and Nicolas Burnosky*
Imagine you are a new prosecutor litigating your first felony homicide case. Given the stakes, you likely feel tremendous pressure to secure a conviction at trial. Based on the evidence, this should be easy. The defendant was found with a gun that matches the bullets recovered from the victim. The defendant has no alibi. Most convincing of all, you have a police report documenting an interview with an eyewitness. This eyewitness told the police he saw the defendant shoot and kill the victim. Although the report itself is inadmissible hearsay, you intend to call the eyewitness to testify at trial. You feel confident that this testimony, along with the other evidence, should be sufficient to convince the jury.
Your confidence is shattered when you receive a call from the police. The officer tells you that the eyewitness was brought in for subsequent questioning and that he recanted the identification. He now claims someone else shot the victim. Before hanging up, the officer tells you she will submit an amended report. It is clear that you no longer wish to call the eyewitness to testify at trial on behalf of the prosecution. But you might nonetheless be able to go forward based on the other evidence you’ve gathered. What must you do with the police reports? Must you disclose them to defense counsel? In the Fourth and Seventh Circuit, the answer is "no." In these circuits, the reports need not be disclosed because they are inadmissible. As explained below, this approach is flawed because it conflates admissibility and materiality.
Read More