Witness Credibility: Expected Benefit from Prosecutor
August 14th, 2018

Nevada capital murder conviction and death sentence vacated because prosecution failed to disclose, inter alia evidence that the key prosecution witness expected a benefit from the prosecution in exchange for his testimony. (Browning v. Baker (9th Cir. 2017) 875 F.3 444.)


Brady violation resulted from prosecutor’s failure to disclose that the key prosecution witness—who claimed “that he had not been promised anything for his testimony, including any promise of a more lenient sentence on his recent conviction”—knew that the prosecutor at defendant’s trial “was contemplating speaking to [the witness]’s sentencing judge.”  Indeed, as the result of such contact, the prosecutor in the witness’s case changed his sentencing recommendation from five years in prison and the judge granted him probation instead. (Ibid.)


Favorable evidence includes that which impeaches a prosecution witness. (Amado v. Gonzalez (9th Cir. 2013) 734 F.3d 936, 948-949.)


In Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), “the Government’s case depended almost entirely” on one witness, yet the prosecution failed to inform the defense that the witness testified in exchange for a promise from the government that he would not be prosecuted. The Supreme Court held that the prosecution was required to inform the defense about its agreement with the witness because “evidence of any understanding or agreement as to a future prosecution would be relevant to [the witness’s] credibility and the jury was entitled to know of it,” and the Court ordered a new trial. Id. at 154-55.


“The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend”. Napue v. Illinois, 360 U.S. 264, 269 (1959); see also United States v. Bagley (1985) 473 U.S. 667, 676 [105 S.Ct. 3375, 3380, 87 L.Ed.2d 481, 490].)

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