“Prosecutor’s Notes”

You Can Have Them!

By Monte E. Hester; June 2001

     The Ninth Circuit Court of Appeals, in Paradis v. Arave, 240 F.3d 1169 (filed March 5, 2001) affirmed the granting of a writ of habeus corpus by the Federal District Court of Idaho, the focus of which was the failure of the county prosecutor to provide his notes as required under Brady v. Maryland, 373 U.S. 83 (1963).

     An absolute defense to the prosecution of Paradis for murder taking place in Idaho was that the death didn’t occur in Idaho.  Without such evidence there is no jurisdiction, therefore no case.  Dr. William Brady of Oregon, the medical examiner who did the autopsy, testified in a way that established that the death had occurred in Idaho.  It was discovered that the prosecutor was in possession of notes that were taken at the time of the autopsy and contained memos of opinions stated by the medical examiner during the autopsy that were materially inconsistent with the testimony given by the medical examiner at trial.  Under Brady, supra, the prosecutor has an obligation to provide any information that is potentially helpful to the defense for either substantive purposes or to aid in impeachment or that might lead to additional material discovery.

     The Court held that the prosecutor’s notes were material, that they should have been provided to the defense and that they were admissible.

     In every case defense counsel should request the prosecutor’s notes regarding any witness interview in which they have participated.  It’s required under Brady, which applies to the government not the defense, and is founded upon the potential of the information being used to assist the defense.  If there is an issue as to whether particular notes are Brady material, at the very least the Judge should review the notes in camera for purposes of ascertaining if the notes in whole or in part are to be provided as required by Brady.