Rosario, Vilardi, and Their Progeny: Do They Hold Rogue Prosecutors Accountable and Bring Justice to the Wrongfully Convicted?

Daniel Kelly

Daniel Kelly is an associate at LeClair Ryan, P.C., working out of the New York City office. He is licensed to practice law in New York and New Jersey and admitted to the bars of the United States District Courts for the Southern and Eastern Districts of New York. His practice areas include criminal defense in New York and New Jersey, immigration law, commercial litigation, insurance coverage, and general liability.


The Supreme Court of the United States has boldly declared that, although “there is no general constitutional right to discovery in a criminal case,”the Due Process Clauses in the Fifth and Fourteenth Amendment to the U.S. Constitution do provide the criminally accused with the right to a certain kind of evidence within the state’s possession.2 In the landmark decision of Brady v. Maryland,3 the Court stated that “the suppression by the prosecu­tion of evidence favorable to the accused . . . violates due process where the evidence is material either to guilt or punishment, irrespective of the good or bad faith of the prosecution.”4 While it is true that, over the years, the Court has broadened both the kind of evidence the state must turn over to the defense and the scope of its responsibility to do so, the requirement that evidence be “material” has given certain Justices a vehicle (or a pretext) to limit Brady’s scope.5 This article will discuss the federal Constitutional requirements that govern all prosecutors—state and federal—with respect to disclosure of exculpatory evidence and examine how those requirements have largely not lived up to the lofty rhetoric of Brady itself.

All is not lost, however. Because the Supreme Court sets the floor—and not the ceiling—of individual constitutional rights, the states are free to provide the accused with a broader right to discovery in a state criminal proceeding. New York has done just that. Contrasting the New York standard against the federal one will show that the former affords, at least in theory, more meaningful protection to the accused. However, rules without enforcement are empty platitudes. This standard only matters if it provides defendants more discovery rights in practice and imposes meaningful consequences when those rights are violated.

The federal standard: federal constitutional requirements

In Brady, John L. Brady and his codefendant, Donald Boblit, were tried for capital murder.6 Brady conceded that he acted in concert with Boblit in the commission of the crime, but testified that Boblit had done the actual killing.7 Brady pled with the jury to spare his life during the sentencing stage, but to no avail.8 After the jury voted for capital murder, Brady found out the prosecution possessed a statement by Boblit admitting that he pulled the trigger.9 Brady’s attorney had previously requested to inspect any statements Boblit made, but the prosecution withheld them. The Supreme Court held that Brady was, under these circumstances, entitled to a new trial on the issue of punishment.10 And, since that landmark ruling, the Court has extended the disclosure requirements imposed on the prosecution to any exculpatory evidence that is within the police’s possession, regardless of the prosecutors actual knowledge of the evidence’s existence.11

In a series of subsequent holdings, the Court has delineated three elements of a true Brady violation: (1) the suppressed evidence must be favorable to the accused, (2) it must, in some way, have been suppressed by the state, and (3) the evidence must have been material, in the sense that the defendant was prejudiced by its suppression.12

As to the first element, the Brady court made clear that directly exculpa­tory evidence must be disclosed.13 In Giglio v. United States the court went further.14 In Giglio, the prosecution’s star witness was promised immunity in exchange for his testimony against the defendant at trial.15 The Court overturned the defendant’s conviction, holding that “nondisclosure of evi­dence affecting credibility” is a violation of due process and must also such evidence be disclosed to the defense. In other words, impeachment material is Brady material.16

As to the second element, the Court has held that state “suppression” of evidence exists regardless of whether the defendant makes a request for Brady material itself, makes only a generalized request, or makes a specific demand for a particular piece of evidence within the state’s possession.17 While emphasizing the prosecutor’s dual role as an advocate and minister of justice,18 the Court stated that some evidence may be “obviously of such substantial value to the defense that elementary fairness” mandates that the accused receive it whether they make a request or not.19

As to the final element, the Court has reasoned that, since the defendant’s right to certain exculpatory evidence is grounded in his or her constitutional due process right to a fair trial, there is no breach of the prosecutor’s duty to disclose the evidence unless that nondisclosure did in fact deny the defendant a fair trial.20 In a criminal proceeding, a fair trial requires that the state prove the defendant is guilty of the offense beyond a reasonable doubt. Accordingly, the non-disclosure of evidence denies the accused a fair trial if it “creates a reasonable doubt that did not otherwise exist.”21 Two leading scholars in criminal jurisprudence have asserted that, in United States v. Bagley,

the Court defined the test [for materiality] as follows: “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.”22

Even though Bagley was only a plurality opinion, its influence on the Court’s subsequent materiality jurisprudence is undeniable.

The Court has never tried to attach a numeric percentage on the meaning of “reasonable probability,” but respected commentators have asserted that the defendant need not show by a preponderance of the evidence that he would get acquitted had the evidence not be suppressed. While the defendant’s burden may be unclear, it is clear that the prosecution need not show that the error was harmless beyond a reasonable doubt.23

Likewise, when it comes to the state’s obligation to preserve potentially crucial evidence (as opposed to suppressing evidence the state already has in its possession), even where the burden to preserve the evidence would be light, the Supreme Court has imposed a crippling burden on the accused to show a Brady violation: “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute denial of due process of law.”24

It is true that the Supreme Court has articulated rules to govern discovery in the federal courts under its supervisory powers and, similarly, Congress has enacted the Federal Rules of Criminal Procedure.25 However, neither set of rules imposes inexorable constitutional commands binding upon all fifty states as the case law does. Indeed, discovery rules are subject to amend­ment or outright repeal should it be politically expedient to do so. Brady and its progeny have spawned a great deal of scholarly comment and criticism over the years and serve as the key point of comparison for purposes of this discussion. For that reason, and for the sake of analytical clarity, this article omits any discussion of the federal statutory discovery requirements.

Critique of Brady and its progeny

The Supreme Court’s jurisprudence concerning a criminal defendant’s constitutional right to discovery has been persuasively criticized by legal scholars, practitioners, and members of the Court themselves. To start with this last category, Justice Thurgood Marshall, with a thundering dissent in United States v. Bagley, criticized the “reasonable probability” standard as one that will lead prosecutors to suppress favorable evidence and let them disregard “as irrelevant or unpersuasive evidence that draws [the prosecutors] own judgment into question.”26 One commentator has openly questioned whether an upright district attorney would ever have legitimate Brady mate­rial, because, by hypothesis, the evidence would have to have such a tendency to exculpate the accused “that it would make [the prosecutor] question the reliability of the guilty verdict.”27

Professor Richard Rosen, nearly thirty years ago, sounded the alarm on a problem he believed was anything but trivial: “There are . . . enough reported cases containing strong evidence of intentional prosecutorial withholding of exculpatory evidence and presentation of false evidence to demonstrate that this kind of misconduct occurs frequently enough to generate considerable concern about devising an effective remedy.”28 In recent years, even DNA evidence that conclusively exonerated convicted individuals has been scoffed at by some tunnel-visioned prosecutors.29 These are extreme and anecdotal exceptions perhaps, but they occur frequently enough to raise legitimate concern about the standard by which prosecutors determine whether they must disclose exculpatory evidence.

Professor Daniel Medwed, drawing on his extensive experience as a public defender with the Legal Aid Society in New York City, decried the Court’s approach as one that requires even good faith prosecutors to “engage in an artificial, prospective assessment about how particular items of evidence fit within the jigsaw puzzle of a possible trial.”30 Medwed considered a way to make this materiality standard more protective of the accused: by changing the test from a reasonable probability to a reasonable possibility that the trial would have had a different result.31 He believes that such a standard would make it tougher for prosecutors to withhold exculpatory evidence that is borderline Brady material.32 “New York has taken this approach in certain situations. Where a defendant in state court makes a specific request for a piece of favorable evidence, nondisclosure of that item will satisfy materiality so long as its presence would have created only a reasonable possibility of a different result.”33 Can such a standard help fix the Brady problem?

New York’s constitutional requirements

In the landmark case of People v. Vilardi,34 the New York Court of Appeals announced a sharp break from the United States Supreme Court’s materiality standard.35 The Court of Appeals directly confronted the question: “More particularly, we must decide whether the standard of United States v. Bagley . . . should be adopted as a matter of State law.”36

Before Vilardi’s case ever began, the Kings County (Brooklyn) District Attorney’s Office had charged brothers Ronnie and William Bernacet with arson in the first degree.37 In that case, Officer Daniel Kiely of the Bomb Squad unit of the New York City Police Department (NYPD) prepared a report that concluded that there was no evidence of an explosion, and property damage arising out of such an explosion was a necessary element of the arson offense.38 In summation, defense counsel urged that there was insufficient evidence of an explosion based on Officer Kiely’s report, and both Ronnie and William Bernacet were acquitted.39 After the verdicts, the District Attorney decided to charge another individual, Antonio Vilardi, with first degree arson—the same charge in the same incident on which the Bernacet brothers had just been tried and acquitted.40 Vilardi’s lawyer made a specific discovery request for all reports “by ballistics, firearm, and explosive experts” arising out of the incident, but this time the prosecution failed to disclose Officer Kiely’s report.41

The Court of Appeals stated that a “showing of a ‘reasonable possibility’ that the failure to disclose the exculpatory report contributed to [Vilardi’s conviction] remains the appropriate standard to measure materiality, where the prosecutor was made aware by a specific discovery request that defendant considered the material important to the defense.”42 In this regard, the Court of Appeals emphatically rejected what it characterized as a less protective federal standard.43

The Court reasoned that a failure to disclose evidence in the face of a spe­cific defense request posed an unacceptable risk of denying the defendant a fair trial.44 Further, viewing the strength of the state’s case with the distorted vision of hindsight, post-conviction, would provide less incentive for prosecu­tors to diligently search files for exculpatory evidence and disclose it to the defense in close cases.45 The Court chastised the “reasonable probability” standard articulated by the Supreme Court as unclear and asserted that such a standard “remits the impact of the exculpatory evidence to appellate hindsight, thus significantly diminishing the vital interest this court has long recog­nized in a decision rendered by a jury whose ability to render that decision is unimpaired by failure to disclose important evidence.”46 Thus, the Court held there was a reasonable probability that defense counsel’s trial strategy would have been altered, and may have resulted in a different outcome, when the prosecution witheld the initial explosive report.47 Indeed, the Court noted that the doubts raised by Officer Kiely’s report seemed to play a considerable role in the Bernacet brothers’ acquittal.48

Years before Vilardi was decided, the New York Court of Appeals laid down an initial bright-line, state constitutional rule. In People v. Rosario,49 the defendant, Luis Rosario, was convicted of first degree murder for shooting a store clerk in the course of a robbery.50 The Court believed there was no doubt about his guilt and, indeed, Rosario did not challenge the sufficiency of the evidence.51 Rather, he claimed that the trial court committed reversible error when it refused to order the prosecution to turn over prior recorded statements by the prosecution’s witnesses.52

Procedurally, the state conducted direct examination of each of three witnesses during its case-in-chief.53 Before his cross examination, defense counsel asked to see the witnesses’ statements in full to determine whether or not they would be useful.54 The trial court only allowed the defense to learn of “variances” between the statements and each witness’s trial testimony,55 and prevented defense counsel from viewing the whole statement and deter­mining what might be useful during cross examination.56

The Court of Appeals rejected the trial judge’s ruling in no uncertain terms:

The procedure to be followed turns largely on policy considerations, and upon further study and reflection this court is persuaded that a right sense of justice entitles the defense to examine a witness’ prior statement, whether or not it varies from his testimony on the stand. As long as the statement relates to the subject matter of the witness’ testimony and contains nothing that must be kept confidential, defense counsel should be allowed to determine for themselves the use to be made of it on cross-examination.57

The Court noted several methods by which a prior statement could be use­fully employed by defense counsel at trial, even if it was largely consistent with the witness’s trial testimony.58 Such statements could help demonstrate bias or help neutralize unfavorable testimony.59 Moreover, any additions, subtractions, or omissions between the prior statement and the trial testimony may put the trial testimony in an entirely different context before the jury.60 Finally, the Court noted that a partisan lawyer for the defendant would be in a superior position to consider the potential impeachment value of the prior statement that would not be as apparent to the trial judge sitting as a neutral arbiter between the state and the accused.61 For these reasons, the Court concluded the statements should have been disclosed in their entirety to defense counsel.62 The Court affirmed the conviction in any event, being quite certain Rosario was not prejudiced by the nondisclosure.63 Still, the decree had been made. The case proved to be such a significant landmark that some members of the New York bar colloquially dubbed prior recorded statements that had to be turned over to the defense as “Rosario material.”64

Taken together, Vilardi and Rosario are the crux of a New York defendant’s state constitutional right to discovery to prepare his defense for trial. Does it make a difference?

New York v. federal standard: conviction reversals

At the outset of the forthcoming analysis, intellectual honesty and academic integrity demand a concession that what the Supreme Court might do in a given case and what the New York Court of Appeals might do in that same case inevitably involves some speculation. Perhaps the most sensible way to proceed is to first consider cases in New York where discovery violations resulted in post-conviction relief, including reversing those convictions. Then we may consider if discovery violations would be found and convictions re­versed had the federal standard been applied, instead of the more nominally protecting New York standard.

In People v. Cwikla,65 Tommy Cox, a participant in an alleged homicide who had already pled guilty to manslaughter, testified against the defendant Roger Cwikla, who had been charged with first degree murder in connec­tion with the killing.66 Cox asserted on direct examination that he was not promised anything from the prosecutor in exchange for his testimony against Cwikla.67 On cross, however, Cox admitted that he asked the District Attor­ney’s office to write to the Parole Board on his behalf, but maintained that the District Attorney’s office never promised it would do so.68 Thereafter, defense counsel moved to have the prosecutor produce any correspondence between its office and the Parole Board.69 As the Court described, “It was defense counsel’s position that such material, if it existed, might be exculpa­tory as tending to show a motivation to lie on the part of the prosecution’s chief witness.”70 The prosecution rebuked the request to produce any such correspondence or even to say whether it existed.71 The trial court agreed to issue a subpoena to the Parole Board for the materials, but refused to order disclosure from the prosecution.72

On appeal, the defense received what it asked for: letters from Tommy Cox’s mother to the prosecutor asking him to intervene in Cox’s imminent parole eligibility hearing, an extensive letter from the prosecutor to the Parole Board praising Cox for his cooperation and urging the Board to consider his cooperation in its decision, and the Parole Board’s acknowledgement of, and thanks to, the District Attorney’s Office for the information concerning Cox’s cooperation.73 The New York Court of Appeals seemed to find this nondisclosure particularly troubling:

The materials sought by defense counsel here—correspondence between the office of the District Attorney and the Parole Board relating to the witness Tommy Cox—were of such a nature that the jury could have found that, despite the witness’ protestations to the contrary, there was indeed a tacit understand­ing between the witness and the prosecution, or at least so the witness hoped. We have on a previous occasion noted that the existence of such an agreement “might be a strong factor in the minds of the jurors in assessing the witness’ credibility and in evaluating the worth of his testimony.” Consequently, in view of the significance which the jury might have attached to this evidence and in keeping with the principles enunciated in Brady v Maryland, and its progeny, we hold that the nondisclosure of this evidence denied defendant his right to a fair trial.74

The Court of Appeals used a mixture of federal Brady principles and its own state constitutional law to find that the defense had a right to the prior recorded statements at trial. Note that Cwikla came after Rosario was decided by the Court of Appeals, but before Vilardi was handed down. This emphasizes the importance of reading these cases together and understanding how the Court of Appeals may have used them in its legal reasoning. Cwikla still remains good law in New York, and certainly the spirit of disclosure emphasized in Rosario seemed to play a role in the Court’s holding.75 Yet, on the facts of Cwikla, would the Supreme Court, applying solely Brady principles, reach the same conclusion?

There is at least a colorable claim that the prosecution’s conduct in Cwikla would not require reversal on federal constitutional grounds. The Court of Appeals characterized the defense’s position as a hope that if the correspon­dence did exist, that it “might” tend to expose a motive to lie on behalf of the prosecution’s chief witness.76 The Court said that the jury considering such statements could have found that there was an agreement between the prosecution and Cox, or at least the jury would believe that Cox hoped such an agreement was in place.77

If all of these factors appear highly speculative, consider the current Su­preme Court applying its Brady “reasonable probability” standard.78 Can it be said that these statements, if disclosed, would have provided a reasonable probability that the result of the proceeding would have been different? Per­haps so. The New York Court of Appeals does not detail what other evidence in the case linked the defendant to the crime. Still, this appears to be a very thin reed to rely upon under a reasonable probability standard. At a mini­mum, it appears to be a close case under federal case law. Indeed, the Court in Cwikla did not exclusively rely on federal law to support its holding—state law principles were relied upon too. In any event, the Supreme Court has never gone as far as the Cwikla court did at the very outset of its opinion:

A prosecutor is under a duty to disclose to defense counsel correspondence between the office of the District Attorney and the Parole Board advising of the co-operation of a principal prosecution witness in the trial of the witness’ accomplices and expressing the hope that such co-operation will be taken into account when the witness is considered for parole.79

Cwikla thus sets yet another bright-line, constitutional rule that demands strict compliance from state prosecutors. Neither Brady nor its progeny is­sues this kind of inexorable command. Cwikla accordingly indicates that the accused has considerably more protection under state constitutional law.

In People v. Bond,80 the Court of Appeals handed down another decision that put to rest any lingering doubt that the accused has a better chance of winning reversal under Rosario and Vilardi than under Brady. In Bond, the defendant Brian Bond was tried and convicted of depraved indifference murder.81 The mens rea for this offense is recklessness, not intent.82 The prosecution’s case included the testimony of Leonara Moore and Ricardo Williams,83 who both claimed to have seen the accused and another man, Jabar Washington, point similar looking firearms toward the victim.84 Both witnesses also claimed they heard multiple shots fired but did not actually see the shooting.85 Finally, each witness also identified a number of other individuals who were present at the scene.86 Moore’s aunt, Carmen Green, was not among them.87 At trial, a defense witness, and the defendant himself, would also testify that Carmen Green was not at the scene.88

Over a week into Bond’s trial, the state requested a continuance to secure additional witnesses.89 After the continuance, the state called Carmen Green to the stand.90 Green claimed to have seen the defendant pull out a firearm, point it at the victim, and pull the trigger.91 Green admitted she was addicted to crack cocaine.92 More critically, she testified that detectives from NYPD questioned her niece, Moore, in Green’s apartment the very night of the shooting93 but did not question her.94

In its summation, the defense asserted that the evidence of who pulled the trigger was ambiguous and that the state’s “star witness,” Green, was a crack addict whose testimony at the eleventh hour was not credible.95 Bond was subsequently convicted and, a year later, the trial court granted his request for a rehearing to determine if Green had made any prior inconsistent state­ments or if the police had made her any promises.96

At the hearing, Green testified about a question the police had posed to her the night of the shooting: “They asked me did I see anything and I told them no.”97 In response, the court found:

This was in direct contradiction to her trial testimony. Other hearing witnesses established that during the trial, two detectives went to Carmen Green’s apart­ment in search of her son Lamont to interview him about the shooting. At that time—three years after her initial denial—Carmen Green told the investiga­tors that although her son was not at the apartment, she was an eyewitness to the shooting and was willing to cooperate. Leonora and her brother, Derrick Moore, both testified at the hearing that they were present.98

The trial court conceded that Green’s prior inconsistent statement went to the heart of her testimony, but nonetheless refused to reverse Bond’s conviction.99 The court reasoned that there was no reasonable possibility that disclosing the prior inconsistent statement would affect the verdict, because Bond had already impeached Green on her drug habit and coming forward only at the last moment.100 Critically, the court believed that because Bond was convicted of murder based on his depraved indifference to the value of human life, the jury “may not” have relied on Green’s testimony at all.101 Essentially, the trial court said that Green’s testimony that Bond acted with intent would have no bearing whatsoever on whether the defendant acted recklessly.102

After the Appellate Division103 affirmed the trial court’s ruling, the New York Court of Appeals granted Bond leave to appeal.104 There, the prosecution conceded that Green’s previous denial of having seen the actual shooting was Brady material and that Bond had made a specific request for that material.105 The Court, invoking Vilardi, noted: “reversal of the defendant’s conviction is required if there is a ‘reasonable possibility’ that, had the material been disclosed, the result would have been different.”106

The Court observed that Green’s testimony could support a conclusion that the defendant acted intentionally, as opposed to recklessly, but that consider­ation alone was not dispositive in determining the materiality of the state’s breach of its obligation to disclose the prior inconsistent statement.107 The Court noted that Green was the sole witness for the prosecution who provided direct evidence that the accused personally fired the fatal shot himself.108 Green’s testimony was thus essential to the state’s theory that Bond acted alone in shooting and killing the victim, in spite of the fact that there was evidence indicating that Mr. Washington shot the victim too.109 The Court also noted that although Bond had the ability to attack Green’s credibility based on her drug addition, he did not have the ability to expose her as a liar before the jury.110 For these reasons, the Court of Appeals reversed the defendant’s conviction and granted him a new trial.111 The Court believed there was a reasonable possibility that had the prosecution disclosed the prior inconsistent statement the result of the proceeding may have been different. As if to emphasize the point, the Court’s ruling was unanimous.112

Can it be said that the federal Brady standard would have required reversal in the Bond case? It is hard to imagine how. The evidence of guilt in Bond was hardly conclusive, but is it conceivable that the state’s nondisclosure here would have provided a reasonable probability that the result of a proceeding would have been different? That is, would the evidence have the potential to “corrupt the truth seeking function of the trial process”113 such that the verdict simply cannot be counted on as reliable?

In Bond, the defense was free to impeach Green on the stand about her drug habit in general and to imply that the word of an addicted crack addict ought not to be given dispositive weight in a murder prosecution. The defense did just that.114 The defense was also free to put before the jury Green’s failure to come forward initially after the shooting and did so only after trial began. Again, the defense did precisely that.115 Under these circumstances, evidence of a prior inconsistent statement, while certainly helpful to the defense, simply adds another theory of impeachment to Green’s already thoroughly impeached testimony. Ultimately, the jury seemed to have done precisely what defense counsel implored them not to: given Green’s testimony dis­positive weight. Brady and its progeny do not seem to mandate reversal in this context. At the very least, no reasonable jurist would, on these facts, be willing to guarantee that the Supreme Court would reverse this conviction.

In the fall of 2009, the New York State Bar Association’s Task Force on Wrongful Convictions put out a 187-page report for the State Bar’s House of Delegates to consider.116 The report concluded that the New York Rosario/ Vilardi cases and their progeny provide a better chance for the accused to get his or her conviction reversed for the state’s nondisclosure of exculpatory evidence than the federal Brady protections standing alone. In pertinent part, the report cites a long list of authoritative holdings and makes bold findings based upon them:

All types of information fall within the types of evidence which must be disclosed to the defense: e.g., (1) promises to a witness, actual or implied on any reading of the information (People v. Steadman, 82 N.Y. 2d 1); (2) prior criminal record or bad acts of the witnesses; (3) prior inconsistent statements of a witness (People v. Bond, 95 N.Y. 2d 840 (2000); People v. Gantt, 13 A.D. 3d 204 (1st Dep’t 2004), appeal denied, 4 N.Y. 3d. 798 (2005); (4) information derived from any investigation made by an agency of the state working on the case including police reports and the results of interviews (People v. Harris, 35 A.D. 3d. 1197); (5) physical evidence including human body parts (People v. Bryce, 88 N.Y. 2d 124) and body fluid samples; (6) evidence obtained through forensic testing; (7) photographs; (8) investigative communications with other branches of government (People v. Wright, 86 N.Y. 2de 591); . . . (10) a failure to correct false testimony (People v. Steadman, 82 N.Y. 2d, 1; People v. No­voa, 70 N.Y. 2d 490; People v. Ross, 43 A.D. 3d. 567 (3d Dep’t 2007), appeal denied 9 N.Y. 3d 964 (2007)); (11) recantation of a statement by a witness (see People v. Baxley, 84 N.Y. 2d 208); (12) a failure to disclose the conduct of a complainant that would impeach credibility (People v. Hunter 11 N.Y. 3d 1).117

There is nothing in Brady or its progeny that requires disclosure of mere prior bad acts of witnesses unless they rise to a materiality level, which the Rosario/Vilardi line of cases hold to be inadequate to protect the accused under state law. There is nothing in the Brady jurisprudence that creates a mandatory disclosure rule for any information derived from an investigation, not just by the police, but any state agency. The Supreme Court also has not especially (or at all, to be frank) highlighted the importance of disclosing police reports and witness interviews. Perhaps most notably, the Supreme Court certainly has not required the prosecution to turn over all body fluid samples. And, in Arizona v. Youngblood, the Supreme Court expressly re­jected the invitation to require police to preserve certain body fluid samples that might ultimately be favorable to the accused.118

The above analysis makes it evident that a defendant has a considerably greater chance of getting his conviction reversed in New York based on nondisclosure of exculpatory evidence than under Brady. Indeed, Rosario and Vilardi provide concrete disclosure standards. When those two cases are coupled with the New York Court of Appeals subsequent jurisprudence, state prosecutors should be on notice that more is demanded of them than mere compliance with Brady’s universal mandate. What remains uncertain is whether the Rosario and Vilardi standards have a meaningful effect on prosecutors’ behavior.

Attorney discipline in New York and Rule 3.8

The New York Court of Appeals has declared that “[a] disciplinary pro­ceeding is concerned with fitness to practice law, not punishment. . . . The primary concern of a disciplinary proceeding is the protection of the public in its reliance on the integrity and responsibility of the legal profession.”119

In the New York, discipline is handled by the Courts—specifically, the Appellate Division of the Supreme Court—not the private bar.120 The Appel­late Division is divided into four “departments” that each have jurisdiction over separate parts of New York state.121 The First Department covers New York County and the Bronx, while the Second Department covers Brooklyn (Kings County), Queens, and Staten Island (Richmond County). Accordingly, the first two departments are collectively responsible for the discipline of all lawyers practicing in New York City,122 home to some of the largest prosecu­tion offices in the country.123

New York Rule of Professional Conduct 3.8(b) provides:

A prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant or to a defendant who has no counsel of the existence of evidence or information known to the prosecutor or other government lawyer that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the sentence, except when relieved of this responsibility by a protective order of a tribunal.124

The operative language seems to impose a heavier burden on prosecutors than the New York Court of Appeals case law does: it may mean that any­thing tending to negate the guilt of the accused must be disclosed.125 There is nothing in the rule’s language indicating that the evidence or information needs to be of the type that would, if not disclosed at trial, provide a “reason­able possibility” that the result of the proceeding would have been different. Comparatively, Rule 3.8(c), (d), and (e) pertain to what a prosecutor should do when he or she learns of evidence after a defendant is convicted that cre­ates a reasonable likelihood that the defendant did not commit the offense.126 This article focuses on 3.8(b).

While mandates that seek to secure a wrongfully convicted defendant’s release from prison are certainly of crucial importance, Rule 3.8(b)’s thrust—at least, theoretically—could prevent a wrongful conviction in the first instance. It is impossible to know for certain how much the Rule actu­ally makes prosecutors disclose evidence that Brady and even the Rosario/ Vilardi progeny would not mandate revealing. If the rule’s language has any tendency to increase proper disclosure, it should be celebrated. For example, a 2006 survey indicated that for the Brooklyn District Attorney’s Office, “Discovery by Stipulation,” what is also known as “open file discovery,” is the norm in misdemeanor cases.127 Rule 3.8(b) has not led to the same culture of disclosure in other offices, however. In Queens, prosecutors generally fol­low early open file discovery but only if the defense waives certain pre-trial hearings.128 In the Manhattan District Attorney’s Office, early discovery only proceeded via a defense motion and a Voluntary Disclosure Form (“VDF”) in response.129 Finally, in the Bronx, the discovery policy was a “scattershot” that varied between both individual prosecutors and the bureaus in the District Attorney’s Office where they were assigned.130

Besides Rule 3.8(b)’s varying effect on both individual prosecutors and different district attorney’s offices in general, there is a far greater cause for concern.

Discipline for breach, or the lack thereof

If the New York Court of Appeals was correct when it stated that the goal of attorney discipline is not to punish,131 the results of an examination by Joel Rudin, an attorney who has represented wrongfully convicted individuals in civil lawsuits, can hardly be surprising.132 Rudin informed the New York Bar Association’s Task Force on Wrongful Convictions that he had obtained the personnel records of prosecutors in several counties between the late 1970s and 2003.133 In the 200 cases Rudin obtained, courts found that the prosecu­tors involved engaged in general discovery violations as well as more blatant offenses, such as the use of false or misleading testimony and employing improper arguments in summation.134 Rudin found only two prosecutors involved with those approximately 200 cases who were subjected to formal internal discipline in their own offices.135 Even if Rudin’s review is merely anecdotal and not a representative sample—though it may well be the latter considering the roughly twenty-five-year time period and results from offices across the state—it indicates that there may be a staggeringly low percentage of prosecutors who are internally disciplined even after the judiciary made a formal finding of prosecutorial misconduct.136

Each Appellate Division has within its court a disciplinary committee with attorneys and staff to investigate and prosecute complaints of ethical violations.137 Each Division also has specific procedures for doing so.138 Inves­tigations are initiated by the filing of a formal complaint by the disciplinary committee sua sponte.139

Initially, the committee seeks to determine if the attorney’s alleged mis­conduct is serious enough to merit bringing a disciplinary proceeding.140 If not, the investigation is closed and complaint is dismissed.141 However, if the case warrants disciplinary action, the attorney’s conduct may be brought before the court with the potential for a formal adversarial hearing.142 Only the Appellate Division judges or their designated subcommittees have the power to issue a public censure, a suspension, or outright disbarment.143

If the investigation reveals “clear and convincing evidence” that the at­torney has committed misconduct but it is not serious enough to warrant formal charges before the court, the disciplinary committee itself may privately reprimand the attorney, caution the attorney, or recommend con­tinuing education without formal leave from Appellate Division Judges or a designated subcommittee.144 Certainly there is reason to believe that such a considerable investment of resources is more likely to keep prosecutors alert and lean toward disclosure in close cases, with at least a theoretical threat from a vast disciplinary authority backed by the formal judiciary.

Because the Appellate Division’s disciplinary proceedings are made pub­lic only when formal findings of certain types of attorney misconduct are made,145 it is impossible to know for certain how aggressively allegations of prosecutorial misconduct are being investigated, even if the charges turn out to be baseless. Furthermore, a private reprimand—as opposed to public censure, suspension, or disbarment—is never disclosed to the public.146 Rather, it is simply a professional embarrassment (albeit a considerable one that perhaps could subject any future complaints against the attorney to additional scrutiny by disciplinary authorities). The general citizenry would not ordinarily learn of it. In addition, the disciplinary process is a long and highly complex one. Thus, the proceedings do not usually result in attorney discipline. However, because these proceedings are often out­side of public scrutiny (unless particularly harsh discipline, such as public censure, suspension or disbarment, is imposed), it is hard to discern how much political courage disciplinary committee attorneys have to confront prosecutors for misconduct.

There is another problem in the enforcement process. Conversations with lawyers at the disciplinary committees across the state revealed that they often only come across potential violations of the Rules of Professional Con­duct through newspaper articles, insider knowledge of committee members, word of mouth, judicial decisions and orders, or the filing of a complaint by a former client, adverse party, another lawyer, or a member of the public.147 Although the judicial rulings are a source of information about prosecutors breaching their discovery obligations, there is no standardized procedure for the Appellate Division to send cases to the disciplinary committees.148 In other words, law clerks for Appellate Division judges simply have no duty to notify the disciplinary committees of judicial opinions regarding prosecutorial misconduct.

It is difficult to determine how many Rosario/Vilardi violations are over­looked without any formalized reporting system between Appellate Division, who uncover prosecutorial misconduct, and disciplinary committee staff attorneys charged with enforcing the rules that bind prosecutors. This lack of communication only looms larger when one considers that disciplinary committees are charged with disciplining not just prosecutors who breach their duties, but are collectively responsible for sanctioning any member of the bar when appropriate.

Closing thoughts

Those wrongfully convicted in New York due to a prosecutor’s breach of his or her obligations to disclose exculpatory evidence have a better chance of having their convictions reversed under the Rosario/Vilardi line of cases than under the bare Brady protections that bind prosecutors nationally. But the New York Court of Appeals’ meaningful rejection of Brady’s materiality standard may only provide cold comfort to those who are wrongfully con­victed149 and languishing behind bars, only to be released years later when the violations are revealed.

Further, there is at least some empirical research suggesting that prosecu­tor’s offices across the state are unwilling to sanction their own prosecutors when they cross ethical lines. Although Rule 3.8(b)’s operative language has considerable force, and the disciplinary committees are staffed by ex­perienced attorneys, the procedural maze and gaps in communication may hamper efforts to deter prosecutors from breaching their discovery obliga­tions while the case is still ongoing. To be sure, New York has taken a step in the right direction. Still, the gaps in discipline ought to be closed and the process made more transparent. If not, there remains a significant danger that people will be wrongfully convicted because prosecutors breach their discovery obligations. There must be the dual threat of retrial for the ac­cused and a serious, credible, and imminent threat of professional sanction for the prosecutor.



  1. Weatherford v. Bursey, 429 U.S. 545, 559 (1977).
  2. Joshua Dressler & AlanC. Michaels, UnderstandingCriminal Procedure: Volume 2: Adjudication143 (4th ed. 2014).
  3. 373 U.S. 83 (1963).
  4. Id. at 87.
  5. See Dressler & Michaels, supra note 2.
  6. Id.
  7. Id.
  8. Id.
  9. Id.
  10. Id.
  11. Dressler & Michaels, supra note 2 (citing Kyles v. Whitley, 514 U.S. 419, 437 (1995)).
  12. See id. at § 7.02 Elements of the Brady Rule (citing Banks v. Dreke, 540 U.S. 668, 691 (2004) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999))).
  13. Brady, 373 U.S. at 88.
  14. 405 U.S. 150 (1972).
  15. Id.
  16. Id. Strangely enough, the Court has held that in the plea bargaining context, the accused is not entitled to impeachment material, although they are still entitled to evidence that directly exculpates them. See United States v. Ruiz, 536 U.S. 622, 630-32 (2002). Since a discussion of plea bargaining only adds to an already complex U.S. Supreme Court jurisprudence in this area, I omit it for clarity’s sake.
  17. United States v. Agurs, 427 U.S. 97, 111 (1976).
  18. Id. at 111.
  19. Id. at 110.
  20. See Dressler & Michaels, supra note 2, at 146 (particularly § 7.02 Elements of the Brady Rule).
  21. Agurs, 427 U.S. at 113.
  22. Dressler & Michaels, supra note 2, at 147 (quoting from United States v. Bagley, 473 U.S. 667, 682 (1985)); see also id. at 146. During their discussion on Constitutional Discovery, Dressler and Michaels seem to take the Bagley test as a given. They label it a holding, even though this part of the opinion may only be a plurality. In any event, the prominence it is given by these two highly respected scholars is reason enough to emphasize its language in this paper.
  23. See Dressler & Michaels, supra note 2, at 148 (particularly § 7.02 Elements of the Brady Rule).
  24. Arizona v. Youngblood, 488 U.S. 51, 58 (1988).
  25. See Dressler & Michaels, supra note 2, at 146 (particularly §§ 7.05, 7.06). 163
  26. Bagley, 473 U.S. at 702 (Marshall, J., dissenting).
  27. Scott E. Sundby, Fallen Superheroes and Constitutional Mirages: The Tale of Brady v. Maryland, 33 McGeorge L. Rev. 643, 652 (2002).
  28. Richard A. Rosen, Disciplinary Sanctions Against Prosecutors for Brady Violations: A Paper Tiger, 65 N.C. L. Rev. 693, 697 (1987).
  29. Andrew Martin, The Prosecution’s Case Against DNA, N.Y. Times Magazine (Nov. 25, 2011),
  30. Daniel S. Medwed, ProsecutionComplex: America’s Race to Convict and its Impact onthe Innocent 46 (2012).
  31. Id. at page 43.
  32. Id.
  33. Id.
  34. 76 N.Y.2d 67 (N.Y. 1990).
  35. Id.
  36. Id. at 69.
  37. Id. at 70.
  38. Id.
  39. People v. Vilardi, 76 N.Y.2d 67, 70 (N.Y. 1990).
  40. Id.
  41. Id.
  42. Id. at 77.
  43. Id. at 76-77.
  44. People v. Vilardi, 76 N.Y.2d 67, 77 (N.Y. 1990).
  45. Id.
  46. 77-78.
  47. Id.
  48. Id.
  49. 9 N.Y.2d 286 (N.Y. 1961).
  50. Id. at 287-88.
  51. Id. at 288.
  52. Id.
  53. Id.
  54. Id.
  55. People v. Rosario, 9 N.Y.2d 286, 288 (N.Y. 1961).
  56. Id.
  57. Id. at 289.
  58. Id.
  59. Id.
  60. Id.
  61. People v. Rosario, 9 N.Y.2d 286, 290 (1961).
  62. Id.
  63. Id. at 290-91.
  64. See “Rosario Material” in DWI Law, Xavier DWIDefense, rosario-material-in-dwi-law (last visited Feb. 20, 2018). A simple Google search for “Rosario Material” yielded over 34 million results in less than half a second on multiple occasions. Many of these articles are the self-serving work of criminal defense lawyers buffering their own pedigrees, but the persistence of the term’s use is striking. Still, other results are law review articles or similar scholarly work. In any event, again, this nota­tion doesn’t seek to vouch for the merits of each writer’s take of what Rosario material is; just to recognize its prominence as a colloquial term.
  65. 46 N.Y.2d 434 (N.Y. 1979).
  66. Id. at 439.
  67. Id.
  68. Id.
  69. Id.
  70. Id. (emphasis added).
  71. People v. Cwikla, 46 N.Y.2d 434, 439 (N.Y. 1979).
  72. Id. at 439-40.
  73. Id. (internal citations omitted)
  74. Id. (internal citations omitted).
  75. Id.
  76. People v. Cwikla, 46 N.Y.2d 434, 439 (N.Y. 1979).
  77. Id. at 440.
  78. See Dressler & Michaels, supra note 2.
  79. People v. Cwikla, 46 N.Y.2d 434, 438 (N.Y. 1979).
  80. 95 N.Y.2d 840 (N.Y. 2000).
  81. Id. at 842.
  82. See N.Y. Penal Law § 125.25(2) (2006).
  83. People v. Bond, 95 N.Y.2d 840, 842 (N.Y. 2000).
  84. Id. at 841.
  85. Id.
  86. Id.
  87. Id.
  88. Id.
  89. People v. Bond, 95 N.Y.2d 840, 842 (N.Y. 2000).
  90. Id.
  91. Id.
  92. Id.
  93. Id.
  94. Id.
  95. People v. Bond, 95 N.Y.2d 840, 842 (N.Y. 2000).
  96. Id.
  97. Id.
  98. Id. at 842-43.
  99. People v. Bond, 95 N.Y.2d 840, 843 (N.Y. 2000).
  100. Id.
  101. Id.
  102. Id.
  103. Id. The Appellate Division is the intermediate state appellate court in New York. It is composed of four “departments.” The Court does not say so explicitly in this passage, but since this conviction was in Brooklyn, and the 2nd Department has jurisdiction over Brooklyn, Queens and some suburban counties in the New York tri-state area, it is in all likelihood the 2nd Department affirmed the trial court’s conclusion. See Appellate Divisions,, (last visited Feb. 20, 2018).
  104. People v. Bond, 95 N.Y.2d 840, 843 (N.Y. 2000).
  105. Id.
  106. Id. (citing People v. Vilardi, 76 N.Y.2d 67, 77 (N.Y. 1990)).
  107. People v. Bond, 95 N.Y.2d 840, 843 (N.Y. 2000).
  108. Id.
  109. Id.
  110. Id.
  111. People v. Bond, 95 N.Y.2d 840, 843 (N.Y. 2000).
  112. Id.
  113. Agurs, 427 U.S. at 104. This is part of the majority opinion delivered in this case by Justice Stevens, joined by Chief Justice Burger and Justices Stewart, White, Blackmun, Powell and Rehnquist.
  114. Id. at 103-04.
  115. Id.
  116. New York State Bar Association, Task Force onWrongful Convictions (Apr. 4, 2009), available at [hereinafter Wrongful Convictions].
  117. Id. at 24.
  118. Arizona v. Youngblood, 488 U.S. 51, 58 (1988).
  119. In re Rowe, 80 N.Y.2d 336, 342 (N.Y. 1992) (citing Matter of Levy, 37 N.Y.2d 279, 282 (N.Y. 1975); Matter of Kahn, 38 A.D.2d 115, 124, aff’d 31 N.Y.S.2d 752 (N.Y. App. Div. 1972)).
  120. Attorney Matters: How to Make a Complaint against a Lawyer, Appellate Division, Second Judicial Department,­ters_ComplaintAboutaLawyer.shtml#_Professional_Discipline (last visited Sept. 24, 2017).
  121. See Appellate Divisions, supra note 103.
  122. Id.
  123. The Kings County District Attorney’s Office serves a population of over 2.5 million people. The Brooklyn DA claims to be one of the largest prosecution offices in the country on its website. See Legal Recruiting, Kings County District Attorney’s Office, (last visited Sept. 24, 2017). Queens has a population well over 2 million; the Bronx is approaching 1.5 million, and Manhattan’s population is well over 1.5 million. See Current and Projected Populations: Current Estimates of New York City’s Population for July 2016, NYCDepartment City Planning, (last visited Sept. 24, 2017).
  124. Part 1200 Rules of Professional Conduct R. 3.8(b) (2017), available at http://www.

rosario, vilardi, and their progeny166 national lawyers guild review

  1. Id. (emphasis added).
  2. The New York County Lawyers’ Association, Discovery inNew York Criminal Courts: Survey Report & Recommendations (2006), available at (where the Brooklyn DA’s practice is under Kings County. See id. at 8).
  3. Id. at 9.
  4. Id.
  5. Id. at 10.
  6. See In re Rowe, supra note 119.
  7. See Wrongful Convictions, supra note 116, at 31.
  8. Id.
  9. Id.
  10. Id.
  11. Id.
  12. See Wrongful Convictions, supra note 116, at 34.
  13. Id. (internal citations omitted).
  14. Id. (internal citations omitted).
  15. Id. (internal citations omitted).
  16. See Wrongful Convictions, supra note 116, at 34 (internal citations omitted).
  17. Id. (internal citations omitted).
  18. Id. (internal citations omitted).
  19. Id. (internal citations omitted).
  20. Id.
  21. See id. (internal citations omitted).
  22. See id. at 33 (internal citations omitted).
  23. Id.
  24. See Wrongful Convictions, supra note 116, at 34-35.
  25. Whether or not they are factually innocent, if the prosecution obtains a conviction in a trial during which they breach their discovery obligations, the defendant has been wrongfully convicted in the legal sense, being denied something—exculpatory evidence as defined in the Rosario/Vilardi line of cases—that they have a legal right to in New York State.