The Daily Digest, 3/21/11

New cases to report on the intersection memory, the brain and law. As I’ve mentioned previously, at least several times a week I receive cases in which criminal defendants raise claims about either their own memory, the memory of a witness or victim to a crime. The majority of these claims seem to fail, but this will be an interesting issue for future exploration. If you are interested in the intersection of Law & Memory, please join us for a conference on Law & Memory at Stanford Law School on April 1, 2011.

The case today raises a successful memory claim and Brady violation, where the prosecutor suppressed evidence regarding a witness, who had suffered a past brain injury, and had inconsistent recollection regarding key facts of the case.

Brain Injury, Memory, Brady Violation
U.S. v. Kohring, 2011 WL 833263 (9th Cir. 2011)
Defendant-Appellant (“Defendant”) filed this appeal after being convicted of three public corruption charges. While the case was pending on appeal, the 9th Circuit remanded it to the district court for the limited purpose of determining whether the government had breached its disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), and, if so, the remedy to which Defendant was entitled. The district court determined the prosecution had failed to disclose favorable evidence to Defendant, but it concluded the government did not violate Brady/Giglio because the newly-disclosed information was not material. The 9th Circuit agreed that the prosecution suppressed favorable material, but disagreed with its conclusion as to materiality. Among other evidence suppressed, the Defendant argued that the prosecution failed to disclose information that a state’s witness, inter alia, cast doubt on the witness’s memory generally and specifically regarding key facts. The Ninth Circuit held that because the Defendant was prejudiced by the suppression of poor memory regarding particular facts, it must vacate his conviction and remand the case for a new trial. The newly-disclosed information illustrates the witness’s difficulty with remembering key facts, and sometimes changing recollections as to how much money he paid the Defendant. This information is exculpatory and had impeachment value. Nevertheless the Defense counsel had already exposed the witness’s more general poor memory when he was on the witness stand and in his closing statements, making reference to the witness’s brain injury and it’s effect on his memory. Evidence suppressed regarding the witness’s general poor memory is cumulative because the grounds for impeachment are “no secret” to the jury. The witness’s own testimony on cross-examination, along with counsel’s closing argument, put the witness’s poor memory and confusion directly before the jury. Further evidence of poor memory and confusion would have only been cumulative and would probably not have impacted the jury’s verdict. Because some of the evidence suppressed—namely the inconsistent recollections with respect to the money paid to the Defendant—the conviction was vacated and the case remanded for a new trial.

About Nita A. Farahany

Professor of Law and Philosophy, Professor of Genome Sciences and Policy
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