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Professor Colin Miller—of “Undisclosed” podcast fame—recently wrote an in-depth and helpful post about an important new Wisconsin Supreme Court opinion addressing the Brady doctrine. In State v. Wayerski, the court wrangled and slayed a dangerous beast we at The Open File often refer to as the “due diligence” requirement. In so doing, the court embraced a clear-eyed and fair reading of Brady over the pro-prosecutorial (and anti-defendant) version that had prevailed for many years. It also joined other courts in what may be a turning tide.

The “due diligence” requirement is a judicially-imposed modification of the test the Supreme Court set forth in Brady. Under Brady itself, a defendant can obtain a new trial for a constitutional violation where the State suppresses favorable information from the defense and that information would have been material to the outcome of the case. Courts often say there are thus three requirements: (1) evidence favorable or exculpatory for the defense; (2) the failure to disclose; and (3) materiality. The due diligence test—and the Wisconsin Supreme Court’s opinion—focus on the second element here, the failure to disclose, also referred to as “suppression.”

The due diligence modification of the original rule basically holds that a defendant cannot win on a Brady claim if his defense team could have discovered the favorable information the State failed to disclose through some other means. In jurisdictions all over the country, defendants lose Brady claims if the court believes that the defense could have, for example, located and interviewed the witness who gave an exculpatory statement to the police, run a court records search to find the same document the prosecution already had in its possession, or relied on a client’s memory to learn some detail related to his incarceration. Even if the State knows about the information, some courts use the due diligence test to relieve the prosecution of its constitutional obligation to disclose it.

In Wisconsin, the courts had adopted something they called the “exclusive possession and control test” that served the same function as the due diligence requirement. Essentially, defendants had to show that the exculpatory information was in the State’s possession, and only the State’s possession, and therefore could not have been obtained through some other discovery channel. Fortunately, in Wayerski, the Court declared a welcome “return  to the  principles  of  Brady” where courts “ask  only  whether  the  evidence  was suppressed by the State, rather than the revisionary version of Brady that our court has adopted in the past.”

The Wayerski opinion did not come without controversy. Three justices dissented in part, all taking issue with the majority’s decision to restore Brady’s original emphasis on fairness and prosecutorial ethics. Professor Miller points out why the majority opinion is correct: “the Wayerski majority is now saying… wait a second, Brady is about prosecutorial misconduct, not defense due diligence. If the prosecution collects exculpatory evidence, of course it should turn it over to the defense, even if the defense also has access to that evidence and could discover it through due diligence.”

Nonetheless, many courts still impose restrictions on Brady (a fact upon which the dissenters relied), finding creative and troubling ways to enhance prosecutorial power and diminish the prosecution’s ethical responsibilities. Hopefully Wayerski will contribute to a broader change around country. In 2014, we covered a Michigan Supreme Court case that came to the same conclusion as the Wisconsin Supreme Court about the “due diligence” rule. We also covered a related Sixth Circuit decision handed down a year before that. We will keep our eyes on this jurisprudence, and continue to cover important developments on the Brady front.

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