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98-3665 Boss v. Pierce

By: dmc-admin//September 4, 2001//

98-3665 Boss v. Pierce

By: dmc-admin//September 4, 2001//

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“We regard as untenable a broad rule that any information possessed by a defense witness must be considered available to the defense for Brady purposes. To begin with, it is simply not true that a reasonably diligent defense counsel will always be able to extract all the favorable evidence a defense witness possesses. Sometimes, a defense witness may be uncooperative or reluctant. Or, the defense witness may have forgotten or inadvertently omitted some important piece of evidence previously related to the prosecution or law enforcement. Or, as may have been the case here, the defense witness learned of certain evidence in the time between when she spoke with defense counsel and the prosecution.

“Putting aside these situations in which it would be nearly impossible for defense counsel to discover evidence in the possession of defense witnesses, accepting the state’s position would place a burden on defense counsel that goes far beyond what reasonable diligence demands. Defense counsel can certainly be expected to ask witnesses (defense and otherwise) questions relevant to what counsel understands the witness’s role to be in the case. However, defense counsel cannot be expected to ask witnesses about matters completely unrelated to the witness’s role in the case. A contrary conclusion would require defense counsel to conduct a fishing expedition with every defense witness (and potential defense witness). Reasonable diligence does not require such a practice.”

Reversed and remanded.

Appeal from the United States District Court for the Northern District of Illinois, Moran, J., Williams, J.

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