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When a prosecutor must share exculpatory evidence

When an individual is charged with a crime in Texas, the prosecutor is obligated to share any exculpatory evidence uncovered during their investigation of the defense. Unfortunately, some prosecutors skirt this responsibility, which could lead to the conviction of an innocent person.

Exculpatory evidence is defined as something that may be favorable and material to the defense. It could be outright proof of innocence or simply be information that casts doubt on a portion of the prosecution's case. Prosecutors have been required to share such information since Brady v. Maryland in 1963. However, modern prosecutors still try to ignore this obligation by claiming they didn't know about such evidence or didn't realize the evidence was exculpatory.

Examples of prosecutors violating the Brady ruling could include hiding a photo that proves a defendant had shorter hair than the perpetrator at the time a crime was committed or failing to reveal an individual other than the defendant was present at a murder scene. Frequently, a prosecutor will excuse such behavior by claiming the information doesn't fit their theory of the case. However, withholding exculpatory evidence is unethical and unconstitutional. Currently, prosecutors face no personal penalties for failing to share exculpatory evidence, but some criminal defense attorneys are calling for courts to start keeping a record of Brady violations to shame prosecutors into doing their duty.

Individuals convicted of a felony may face severe consequences, including heavy fines and incarceration. However, a defendant may be able to avoid conviction by retaining a criminal defense attorney as soon as possible. An attorney could protect a defendant's rights during police questioning and throughout the legal process. Legal counsel could also search for evidence that casts doubt on the prosecution's version of events and build a strong defense based on the circumstances of the case.

Source: Above the Law, "Criminally Yours: Hiding The Evidence When It Doesn't Fit The Case," Toni Messina, Sept. 19, 2016

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