The United States Constitution as well as state procedural rules require prosecutorial authorities to disclose evidence to the defense as a means for ensuring fairness in the prosecution of individuals charged with criminal offenses. When prosecutorial authorities fail to disclose evidence as required, the integrity of the criminal justice system is threatened and the defense is unable to adequately prepare for trial. This threat is illustrated and magnified by the substantiation of prosecutorial misconduct claims in high profile trials where prosecutors have been unable to resist the temptation not to disclose evidence that could damage the prosecution's case, or, where investigators fail to disclose damaging evidence or information obtained during the criminal investigation to prosecuting attorneys who would otherwise comply with their disclosure duties.
This article examines the failure of prosecutorial authorities to disclose evidence to the defense under Arkansas and federal law. The disclosure of scientific evidence and expert testimony, as opposed to eyewitness testimony or confessions, are preeminently considered because these types of evidence provide objective evidence of guilt and consequently can provide reasonable doubt as to the prosecution's theory of the case or can negate the defendant's guilt altogether. Specifically, the article begins by examining the duty to disclose under the Supreme Court case Brady v. Maryland compared to the disclosure duty under Rule 17.1 of the Arkansas Rules of Criminal Procedure. Next, the article discusses the importance of scientific evidence in criminal cases generally, and provides specific examples of such evidence being improperly suppressed. The article further considers the prosecutorial duty to disclose under Arkansas law, and culminates with a discussion of the problem of remedy for violations of the duty to disclose, concluding that ultimate triumph of Brady-based disclosure will be the amenability of appellate courts to consider arguments based on violations of the duty to disclose and the prejudice caused thereby to the accused.
J. Thomas Sullivan,
Brady, Arkansas Rule 17.1, and Disclosure of Scientific Evidence and Expert Opinion,
35 U. Ark. Little Rock L. Rev. 245
Available at: http://lawrepository.ualr.edu/lawreview/vol35/iss2/2