From the White Collar Crime Blog:
Dominique Straus-Kahn has received from the district attorney what most defendants never get — early Brady material. * * *
The District Attorney should be commended for the early disclosure of the purported victim’s credibility problems. I cannot help wonder, however, whether such disclosure would have been made — certainly so early — in a case where the defendant did not have such considerable legal and investigative firepower that it could be predicted that his team would itself eventually discover at least some of the victim’s credibility problems. * * *
Experienced prosecutors know that they can almost always get away with Brady violations. * * * There are certainly generally well-meaning prosecutors who would have withheld the exculpatory information here to increase their chances of achieving what they believe is the just result. And there are others less well-meaning, and far fewer, who would have withheld the information to advance their own careers.
Yup. For an examination of these prosecutorial incentives see my Agents Prosecuting Agents. The system worked this time, but the revelations in the DSM case vividly illustrate the potential need for stronger constraints on prosecutors where they are not subject to the constraints that existed in this highly public case with international ramifications and a wealthy defendant. My article suggests redefining the crime in white collar cases — not an obvious solution for the DSM case.
I assume it often happens that the Brady violation concerns evidence that is quite damaging to the prosecution — i.e., that would make it lose if disclosed. The question is whether the prosector is trying to suppress the evidence completely or just before trial. Nevertheless, I think it’s possible that in this case the prosecutor would have disclosed without Brady.
It seems to me Brady was irrelevant here, which is why it seemed to work. The prosecutor found out that his key witness was worthless, so it was useless to go on with the case. There was no harm telling this to the defense attorney, since the prosecutor wouldn’t want to go on with the case anyway. Moreover, the defense attorney would soon find out the same thing via his independent investigation.
For examples of Brady working, we need the prosecutor to disclose info in a marginal case (meaning, on the margin, not inframarginal), and info that the defense couldn’t find out on its own.