68 Fordham L. Rev. 1379 (1999-2000)
The Prosecutor's Ethical Duty to Seek Exculpatory Evidence in Police Hands: Lessons from England

handle is hein.journals/flr68 and id is 1395 raw text is: ARTICLES
THE PROSECUTOR'S ETHICAL DUTY TO SEEK
EXCULPATORY EVIDENCE IN POLICE
HANDS: LESSONS FROM ENGLAND
Stanley Z. Fisher
INTRODUCTION
IN Kyles v. Whitley,' a divided Supreme Court reversed defendant's
_capital murder conviction because prosecutors, who had responded
to a pretrial defense motion for disclosure by saying that there was
no exculpatory evidence of any nature,- had in fact failed to disclose
numerous pieces of exculpatory evidence to the defense. The Court
found that the undisclosed evidence might have bolstered the
defendant's claim that he was innocent, and that the true perpetrator
was an uncharged informant named Beanie. In its brief, the State of
* Professor of Law, Boston University School of Law. I am grateful to Mike
McConville, Chairman, School of Law at the University of Warwick, England, and to
his staff for graciously hosting my research visit there in the Spring of 1999. Professor
McConville and Roger Leng of that school were both generous with their time,
contacts and expertise. I am also indebted to the Crown Prosecutors, police officials,
defense solicitors, and others in England who responded to my requests for
information with remarkable patience and kindness. Finally, I appreciate the skillful
research assistance I received from Colin Kisor, J. Peyton Worley, and Jeffrey Rupp,
guidance on source materials from colleagues Robert Bone and Susan Koniak, and
helpful editorial suggestions from Eric Blumenson, Dan Givelber, Kevin McMunigal,
and Harry Subin.
1. 514 U.S. 419 (1995).
2. ld. at 428 (quoting prosecutor).
3. Non-disclosed items known to the police included:  initial eyewitness
statements taken by police (arguably closer to fitting Beanie); police records
establishing Beanie's initial call to the police; his inconsistent statements to the police,
and his suggestion that the police search defendant's rubbish; evidence linking Beanie
to other crimes committed at the same grocery store and to an unrelated murder;, and
a computer printout of the license numbers of the cars police found in the parking lot
on the night of the murder (which did not include defendant's car, although it was the
police theory that the killer had left his car in the lot after driving off with the victim's
car and the jury had been shown a grainy enlargement of a crime scene photograph
that supposedly had defendant's car in the background). See id. at 428-30. Kyles was
retried three times after the Supreme Court reversed his conviction, resulting in a
hung jury each time. He was released in 1998 after 14 years in prison, coming once
within 30 hours of execution. See Pamela Coyle, Tried and Tried Again: Defense

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