Why Prosecutors Withhold Evidence

By Collin County Criminal Defense Attorney Jeremy Rosenthal


(972) 369-0577

As a criminal defense lawyer my job is to try to understand people without judging.  Trying to understand why a prosecutor might withhold or actually conceal evidence in that way is no different than trying to understand why a person who committed a crime was the situation they found themselves clinically without finding fault.

There have been two clear-cut and higher profile violations (called Brady violations) by Texas prosecutors in the past year which serves as cannon fodder for the debate.  One is from the Morton case in Williamson County which you can read about here, and the other is a more recent debacle in Denton County where two assistants district attorney have been banned by a district judge from practicing in his courtroom.

Put succinctly — prosecutors withhold evidence because (1) some don’t believe people get wrongly accused; (2) some minimize facts which go contrary to the theory of their case; and (3) some assume that as long as they are well intentioned on how they handle a case — they are not violating constitutional rights to discovery.

The Michael Morton Case

Michael Morton was wrongfully convicted of the murder of his wife in the 1980’s.  The prosecutors in that case were alleged to have withheld exculpatory evidence which is the subject of an ongoing investigation.  Even more disturbing, the Williamson County District Attorney’s Office vigilantly fought the testing of a bloody bandana found at the scene from being tested for DNA after Morton was convicted through the Texas appeal process.  Eventually the bandana was tested over the objection of the district attorney — and showed to contain the DNA of the victim and another person accused of similar crimes (not Morton).

The Denton County Case

As reported in the Denton Record-Chronicle, a victim of an aggravated assault with a deadly weapon who was stabbed 9 times repeatedly made the conclusory claim that her husband was the assailant.  In a pre-trial interview with prosecutors, she revealed the basis for her belief was based on recognizing his scent and by seeing the sole of one of his shoes.  The prosecutors failed to disclose this to the Defense lawyer and instead tried to pressure he and his client into a plea deal according to the Record-Chronicle.  The case was dismissed by the judge after he heard the nature of the Brady violation and took the further step of banning the two lawyers from his courtroom.

The Problem

The concept of Brady material is highly subjective regardless of what anyone tells you.  It is reversible error where there is a violation which meets the following criteria: (1) the State failed to disclose evidence, regardless of the prosecution’s good or bad faith; (2) the withheld evidence is favorable to him;  and (3) the evidence is material, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different.

The very concept of having a ‘material‘ violation compared to ‘any‘ violation shows the Court has to weigh just how serious a violation must be to over-turn a case.  Prosecuting lawyers, like defense lawyers, are advocates for their position.  Their job (as is mine) is to take evidence and argue it’s meaning to a jury.  It’s not uncommon at all for a criminal defense lawyer and a prosecuting lawyer to take an identical fact and argue it has completely divergent meanings.

A classic example is from a driving while intoxicated case.  When a criminal defendant in a case looks stable on his or her feet can be argued by the defense that the defendant had the normal use of his mental or physical faculties.  The state’s lawyer on the other hand can argue (assuming it’s supported by evidence) that the defendant has a tolerance for alcohol.  Same fact — different ways to argue.

Adding Everything Together

When you add up the ingredients to a Brady violation — it’s easy to see how it happens.  The key is that it is the prosecutor who makes this highly subjective judgment call about whether to report the existence of negative facts and prosecutor (1) simply doesn’t accept the possibility they could be completely wrong about a case; (2) completely minimizes the bad fact in their own mind; and (3) believes that simply because they’re well meaning the mistake doesn’t matter.

Avoiding Brady Violations

The District Attorney for Williamson County, when questioned about why his office fought not to have the bandana tested in the Morton case said, “Do I in hindsight wish we could have done this quickly? The answer is, ‘Yes I do… Do I think I acted in good faith at the time we were litigating these issues? Yes I do.”

This quote is extremely revealing.  It shows at least two and possibly all three of the thinking errors I’ve identified above.  Certainly the Williamson County DA didn’t want the wrong person jailed (he was not responsible for convicting Morton in the first place) but the result is the same regardless of his intent and well meaning nature.

Prosecutors aren’t bad people, evil people, or just competitive cheats.  They’re human and the mistakes.  Withholding evidence due to the mental traps of their job, however, has the same negative results which they themselves would agree is unacceptable.

Avoiding Brady problems start and ends with having prosecuting lawyers who truly realize they, the police, and their investigators do not have a monopoly on truth.  Though they are under no legal duty to presume someone innocent — if they would — then this would cause them to scrutinize evidence which hurts the theories of their cases instead of rationalize and minimize the evidence.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any matter you should contact an attorney directly.  Communications sent through this forum are not privileged nor do they create an attorney-client relationship.

3 Responses to Why Prosecutors Withhold Evidence

  1. PA Criminal Defense Attorney says:

    Very thought-provoking post, thank you. As a criminal defense attorney myself, however, I do not see how it is possible to be “acting in good faith” and simultaneously fighting to keep the bandana from being tested. Is there any justification for not taking every step possible to ensure that justice is being served?

  2. lynne0312 says:

    “Prosecutors aren’t bad people, evil people, or just competitive cheats.”

    Some are. In the case that I’ve been researching for the past 4 years, prosecutors misstated evidence all throughout trial and they also committed many Brady violations. The conviction was reversed but the prosecutors were never held accountable for their unethical tactics.

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