Non Disclosure of Evidence Affecting Witness Credibility Cases

In Kyles v. Whitley, 514 U.S. 419, 437-38, 115 S. Ct. 1555, 1567-68, 131 L. Ed. 2d 490, 508 (1995), the Supreme Court vacated defendant's conviction by virtue of the failure of the prosecution to turn over to the defense, among other things, prior statements of prosecution witnesses which contained a number of inconsistencies. Noting that impeachment evidence, as well as exculpatory evidence, falls within the Brady rule, the United State Supreme Court vacated a conviction when the prosecutor failed to disclose evidence that the defense might have used to impeach the Government's witnesses by showing bias or interest. Bagley, supra, 473 U.S. at 676-84, 105 S. Ct. at 3380-85, 87 L. Ed. 2d at 490-95. When the reliability of a witness may well be determinative of guilt or innocence, non-disclosure of evidence affecting credibility justifies a new trial, irrespective of the good faith or bad faith of the prosecution. Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104, 108 (1972). Likewise, our Supreme Court has stated that "suppression of evidence favorable or helpful to a defendant's cause, even when the evidence concerns only the credibility of a State's witness against defendant, denies him a fair trial and violates due process". State v. Vigliano, 50 N.J. 51, 60, 232 A.2d 129 (1967). Although not decided in the context of a Brady violation, in State v. Taylor, 49 N.J. 440, 231 A.2d 212 (1967), our Supreme Court granted defendant's petition for post-conviction relief when defendant learned, after trial, that his co-defendant, who testified against him, had had conversations with the trial prosecutor who agreed to recommend leniency to the judge if he testified against defendant in accordance with his statement. When defense counsel cross-examined the witness and asked if he understood that his sentence could be less than a life sentence, the State's objection was sustained. The Court held that where one of the considerations for a plea is an agreement by a co-defendant to testify truthfully for the State against another defendant in return for a recommendation of leniency, such promise or understanding should be fully, fairly and honestly disclosed when it comes into question at the trial. Id. at 456, 231 A.2d 212. In State v. Spano, 69 N.J. 231, 353 A.2d 97 (1976), a principal State's witness had been arrested for possession of a controlled dangerous substance. Prior to her testimony, on the recommendation of the State, she was admitted into a supervisory treatment program under N.J.S.A. 24:21-27 which, if successfully concluded, would result in a dismissal of the charge. At trial, the judge sustained the State's objection when, on cross-examination, she was asked if she had been arrested for drug possession, stating, unless there was a record of conviction, the question was improper. Even though the trial prosecutor was unaware of the witness's status, the Court held that he had a responsibility to be aware of that fact and to disclose the conditional discharge to the court and to defense counsel when the inquiry was made. 69 N.J. at 235, 353 A.2d 97. Accordingly, defendant's conviction was reversed. In State v. Rodriguez, 262 N.J. Super. 564, 621 A.2d 532 (App.Div.1993), we reversed defendant's conviction which was obtained, in part, due to the testimony of his co-defendant who, while testifying on his own behalf, implicated defendant. The trial prosecutor, as well as defendant, was unaware of the fact that the co-defendant had been arrested one week earlier on a charge of possession of a controlled dangerous substance with the intent to distribute. Moreover, the day after defendant was found guilty, the testifying co-defendant entered into a plea agreement with the State. Although no plea discussions had taken place earlier, the co-defendant's attorney conceded that he advised his client that it would be in his best interest to implicate defendant. Finally, in assessing the cumulative effect of multiple instances of non-disclosure by the State, our Supreme Court has held that the suppression of evidence that could have been used to impeach the State's only eyewitness necessitated reversal. State v. Knight, supra, 145 N.J. at 247-48, 678 A.2d 642.