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Brady Material That Must Be Disclosed in Counterfeiting Prosecutions

Brady Material That Must Be Disclosed in Counterfeiting Prosecutions

Counterfeiting cases, like all criminal prosecutions, are subject to the disclosure requirements of Brady v. Maryland. Under Brady, prosecutors are required to disclose any evidence that is favorable to the defendant and material to guilt or punishment. This article provides an overview of the types of evidence that may qualify as Brady material in counterfeiting prosecutions.

Background on the Brady Rule

The Supreme Court’s 1963 decision in Brady v. Maryland established that prosecutors have a constitutional obligation to disclose exculpatory evidence to the defense. This includes any evidence that would tend to show the defendant is not guilty, mitigate the offense, or reduce the potential punishment. The duty to disclose exists even if the defense makes no request for such evidence.Brady’s purpose is to ensure fair trials and prevent wrongful convictions by enabling the defense to obtain information that could impeach the prosecution’s witnesses or undercut its case. The rule reflects the prosecutor’s role as a minister of justice, not just an advocate. As the Supreme Court has explained, “Society wins not only when the guilty are convicted but when criminal trials are fair.”To qualify as Brady material, evidence must be both favorable and material. Favorable means it is exculpatory or impeaching. Material means there is a reasonable probability that disclosure would affect the outcome of the case. Brady applies to all phases of a criminal prosecution, including plea negotiations, trial, and sentencing.

Types of Favorable Evidence in Counterfeiting Cases

Counterfeiting cases rely heavily on documentary evidence and expert testimony to establish that an item is not genuine. As a result, Brady material often includes information that calls into question the authenticity determination or provides an alternative explanation for the defendant’s conduct.Specific examples of favorable evidence that may need to be disclosed include:

• Statements by non-testifying experts: If an examiner concluded that items were authentic or that the defendant’s conduct was not criminal, those findings must be disclosed. Prosecutors cannot cherry-pick experts who support their theory of the case.
• Inconclusive lab results: If forensic testing and analysis of the allegedly counterfeit items was unable to definitively establish that they were fake, those results should be turned over. At a minimum, inconclusive results are impeaching as to the strength of the expert’s conclusions.
• Materials used to train experts: Information used to educate examiners on how to identify counterfeits, such as known examples of genuine and fake items, may be useful for challenging their methodology or qualifications.
• Prior misconduct by witnesses: Any evidence that prosecution witnesses – including experts – have lied, provided inaccurate testimony, fabricated evidence, or acted improperly in other cases must be disclosed. This includes administrative findings and civil lawsuits. Such evidence can be used to undermine their credibility.
• Exculpatory statements by the defendant: If the defendant made any statements denying knowledge that items were counterfeit or otherwise indicating innocence, those statements must be disclosed. Self-serving statements by the defendant may be critical for rebutting intent.
• Evidence of legitimate purchase or acquisition: Receipts, invoices, supplier lists, and other documentation showing the defendant obtained items through legitimate channels may be favorable. This evidence suggests an absence of criminal intent.
• Industry practices relating to counterfeits: Information on how counterfeiting works within a particular industry, including the prevalence of fakes and methods of distinguishing genuine from fake items, may help the defense demonstrate good faith or lack of intent.

Materiality in Counterfeiting Prosecutions

In addition to being favorable to the defendant, Brady material must also be material. The materiality requirement is satisfied if there is a reasonable probability that pretrial disclosure would have led to a different outcome in the case. A reasonable probability is one sufficient to undermine confidence in the verdict.Because intent is a key element that must be proven in counterfeiting cases, impeachment evidence is often material. Anything calling into question the credibility of prosecution witnesses on issues like the defendant’s knowledge, state of mind, and whether items were actually counterfeit could potentially affect the verdict.Other examples of material evidence in counterfeiting prosecutions include:

• Statements by the defendant denying knowledge items were counterfeit: Such statements directly rebut the mental state required for a counterfeiting conviction. They are obviously material.
• Evidence suggesting counterfeits could easily be mistaken for genuine: If the nature of the items made it difficult to distinguish fakes from authentic products, that fact could negate intent and be material.
• Information indicating the defendant was an unwitting participant: Evidence the defendant was unaware of the criminal scheme – such as records showing he was recruited under false pretenses – could disprove guilty knowledge and be material.
• Documents revealing reliance on expert advice: If the defendant consulted with others who did not identify items as counterfeit, such evidence indicates good faith and could be material to intent.
• Industry practices relating to counterfeit detection: Information suggesting the defendant handled items appropriately given accepted practices in a particular field could show lack of intent and be material.

Prosecutors must disclose any evidence for which there is a reasonable probability that disclosure would affect the outcome. When in doubt, they should err on the side of disclosure.

Prosecution Team’s Disclosure Obligations

Under Brady, the prosecution team has a duty to disclose favorable material evidence known to the prosecution team. The prosecution team includes both lawyers and law enforcement agencies involved in the case. Prosecutors have a duty to learn of any Brady material known to others acting on the government’s behalf, including informants.With counterfeiting investigations, the prosecution team may include agencies like the FBI, Customs and Border Protection, Food and Drug Administration, and IRS. Prosecutors must make diligent inquiries to determine if any member of the team possesses Brady material. They may not take a narrow view of this obligation.

Timing of Brady Disclosures

Brady material must be disclosed in time for the defense to effectively use it at trial. While Brady evidence is typically turned over during discovery, prosecutors have a continuing duty to disclose if they later learn of additional exculpatory or impeaching information.Withholding Brady material until mid-trial, after the defense has committed to a strategy, may constitute a violation. Courts generally encourage early disclosure of Brady material, when it can most benefit the defense. Prosecutors should not delay disclosing Brady material in counterfeiting cases.

Consequences of Failing to Disclose Brady Material

A prosecutor’s failure to disclose evidence favorable to the defendant as required by Brady may result in serious sanctions. These can include reversing a defendant’s conviction, dismissing charges, or imposing professional discipline.To establish a Brady violation, the defense must show: (1) evidence was favorable to the accused; (2) the state suppressed the evidence; and (3) prejudice resulted because the evidence was material. Courts analyze Brady claims based on the cumulative effect of all suppressed evidence favorable to the defense.Even when a Brady violation is not found, prosecutors may face criticism for failing to take a broad view of disclosure. Given the stakes, prosecutors should interpret their Brady obligations expansively in counterfeiting and all other criminal cases. Thorough disclosure helps ensure just outcomes and preserves public confidence in the system.

Conclusion

The Brady rule requiring prosecutors to disclose exculpatory evidence is a key component of the right to due process and a fair trial. Brady covers a wide range of favorable information that could impact the outcome in counterfeiting prosecutions where intent is a central issue.Diligent prosecutors will identify possible Brady material relating to authentication of items, expert qualifications, defendant statements, and other issues bearing on knowledge and intent. Timely disclosure of such evidence will serve the interests of justice in counterfeiting and all criminal cases.