State v. Harris

¶1¶ 42. {concurring). I write separately because I believe that the decision in United States v. Ruiz, 536 U.S. 622 (2002), properly interpreted, is not limited to impeachment evidence, but rather extends to both material impeachment evidence and material exculpatory evidence. While the majority of the discussion in Ruizfocused on impeachment evidence, the waiver contained in the plea agreement at issue in Ruizcontained not only a waiver of the right to impeachment evidence, but also a waiver of the right to evidence supporting any affirmative defense. Ruiz, 536 U.S. at 625. The majority in Ruizspecifically rejected *118the notion that due process requires information regarding an affirmative defense to be disclosed prior to plea bargaining. Id. at 633.

¶2¶ 43. Exculpatory evidence includes evidence that tends to support an affirmative defense. See United States v. Agurs, 427 U.S. 97, 98-99 (1976) (Although the court ultimately concluded that the evidence in question, supporting a theory of self-defense, was not material under its now-outdated definition of materiality, the Court never questioned the exculpatory nature of the evidence in question). An affirmative defense is defined as "[a] defendant's assertion raising new facts and arguments that, if true, will defeat the. .. prosecutor's claim, even if all allegations in the complaint are true." Black's Law Dictionary 430 (7th ed. 1999). Thus, by definition, evidence supporting an affirmative defense is exculpatory because it tends "to establish a criminal defendant's innocence." Id. at 577.

¶3¶ 44. In addition, the United States Supreme Court has repeatedly held that exculpatory evidence and impeachment evidence are to be treated the same for purposes of Brady v. Maryland, 373 U.S. 83 (1963). Strickler v. Greene, 527 U.S. 263, 280-82 (1999). In United States v. Bagley, 473 U.S. 667, 676 (1985), the Court stated that there is no substantive difference between impeachment evidence and exculpatory evidence for Bradypurposes: "This Court has rejected any such distinction between impeachment evidence and exculpatory evidence." Thus, it logically follows that if due process does not require impeachment evidence to be disclosed prior to a plea agreement, then due process does not require exculpatory evidence to be disclosed prior to a plea agreement.

¶4¶ 45. The conclusion that due process does not require the disclosure of exculpatory evidence prior to a *119plea bargain is also consistent with the very underpinnings of Brady. The Court has previously recognized that because the purpose of the Bradyrule is to ensure a fair trial, there is no violation unless the government's nondisclosure of the evidence resulted in an unfair trial. Agurs, 427 U.S. at 108 ("[T]he prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant's right to a fair trial."); Bagley, 473 U.S. at 678 ("[Suppression of evidence amounts to a constitutional violation only if it deprives the defendant of a fair trial."). Indeed, in his concurrence in Ruiz, Justice Thomas aptly remarked: "The principle supporting Bradywas 'avoidance of an unfair trial to the accused.' That concern is not implicated at the plea stage regardless." Ruiz, 536 U.S. at 634 (Thomas, J., concurring)(quoting Brady, 373 U.S. at 87). See also Matthew v. Johnson, 201 F.3d 353, 361-62 (5th Cir. 2000) ("Because a Bradyviolation is defined in terms of the potential effects of undisclosed information on a judge's or jury's assessment of guilt, it follows that the failure of a prosecutor to disclose exculpatory information to an individual waiving his right to trial is not a constitutional violation.).1

¶5*120¶ 46. Because I would hold, pursuant to Ruiz, that due process does not require the disclosure of material impeachment information or material exculpatory information prior to plea bargaining, I respectfully concur.