Prosecutors in Clark County amaze me with what they think they can get away with. If you have a pending criminal case, you need to make sure your lawyer is fighting to get the criminal histories (rap sheets) of the witnesses against you. The reason that’s important is because you need to know what these people have in their background. Let’s say you are charged with battery with a deadly weapon resulting in substantial bodily harm in violation of NRS 200.481. In our hypothetical, let’s say you’re accused of stabbing someone with a knife. A good criminal lawyer will want to know who you are accused of pulling a knife on and stabbing and what kind of criminal trouble he has in his past. The reason is simple. If the person you are accused of has prior arrests for crimes of violence, this is something your attorney should know because you have a better chance of arguing self-defense. Let’s say the other person has been arrested in the past for misdemeanor battery and let’s say you have no priors. Well, now instead of your word against the other guy’s word, it’s your word – the person with no prior arrests – against the word of a guy who has a prior arrest for a crime of violence. Suddenly your chances of winning just improved. The same goes for any eyewitnesses. You are entitled to know if they have any felony convictions in their past under NRS 50.095 which allows you to impeach the witness if he or she has a felony conviction within the past 10 years. (Impeach means that when the witness against you testifies, you can tell the judge or jury that he or she has a prior felony conviction.) Why is it such a big deal if the eyewitness or witness against you has a prior felony conviction? This is because a person with a felony conviction is considered under the law to be less believable than a person who doesn’t have a felony conviction. (Remember that a conviction means that you were found guilty by a judge or jury or that you pleaded guilty to a felony. An arrest is just an accusation and not evidence of anything.) If someone has a felony conviction, that person by law cannot possess a firearm, cannot run for public office, and cannot even vote. Think about that! A person who has a felony conviction isn’t even trusted enough by society to pull a lever behind a voting booth! So wouldn’t you want to know if the eyewitnesses in your case or your accuser has a prior felony conviction in his or her past?
Your attorney should demand that he or she be allowed to see the rap sheets of the witnesses the State or the U.S. Government intend to use to convict you before you even go to trial. Unfortunately, a lot of prosecutors think that you aren’t entitled to know this. Huh? That’s not the law. The individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf, including the police. Kyles v. Whitley, 514 U.S. 419, 437 (1995). The government or the State of Nevada has a duty to “turn over to the defense in discovery all material information casting a shadow on a government witness’s credibility.” United States v. Bernal-Obeso, 989 F.2d 331, 334. (9th Cir. 1993) United States v. Blanco, 392 F.3d 382, 397 (9th Cir. 2004). “Where life and liberty depend upon the testimony of another, it is in the interest of justice that the jury should have before them every fact affecting the credibility of the witness. Otherwise, a party may be deprived of life and liberty by the testimony of a criminal.” Corbin v. State, 111 Nev. 378, 383 (Nev. 1995) (quoting Williams v. United States, 3 F.2d 129, 134 (8th Cir. 1924)). “Moreover, the state possesses and controls information regarding a witness’ prior criminal activity and can more easily determine whether a prior felony conviction exists. The defense, on the other hand, does not have ready access to such information.” Id.at 383.
Impeachment evidence is exculpatory evidence within the meaning of Brady. See Giglio v. United States, 405 U.S. 150, 154 (1972); see also United States v. Bagley, 473 U.S. 667, 676, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985). Brady/ Giglio information includes “material . . . that bears on the credibility of a significant witness in the case.” United States v. Brumel-Alvarez, 991 F.2d 1452, 1461 (9th Cir. 1993), amending 976 F.2d 1235 (9th Cir. 1992) (quoting United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir. 1988)) (alteration in original). Impeachment evidence is favorable Brady/ Giglio material “when the reliability of the witness may be determinative of a criminal defendant’s guilt or innocence.” Id. at 1458 (citing Giglio, 405 U.S. at 154); see also United States v. Serv. Deli Inc., 151 F.3d 938, 943 (9th Cir. 1998).
Because the prosecution is in a unique position to obtain information known to other agents of the government, it may not be excused from disclosing what it does not know but could have learned. Carriger v. Stewart, 132 F.3d 463, 480 (9th Cir. 1997) (en banc). “Exculpatory evidence cannot be kept out of the hands of the defense just because the prosecutor does not have it, where an investigating agency does. That would undermine Brady by allowing the investigating agency to prevent production by keeping a report out of the prosecutor’s hands until the agency decided the prosecutor ought to have it, and by allowing the prosecutor to tell the investigators not to give him certain materials unless he asked for them.” Id. at 480; see also United States v. Monroe, 943 F.2d 1007, 1011 n.2 (9th Cir. 1991) (stating that “the prosecution must disclose any [Brady] information within the possession or control of law enforcement personnel”) (quoting United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 824 (9th Cir. 1985)). United States v. Blanco, 392 F.3d 382, 387 (9th Cir. 2004).
What all this means is that the prosecutor can’t stick his or her head in the sand and say that “I don’t know if the witness has a felony conviction or not.” Each prosecutor has a duty to tell you if the witness does or does not have a prior felony conviction within the past 10 years. Furthermore, if you are charged with a crime of violence, you have the right to know if your accuser has a prior arrest for a crime of violence because that’s relevant to show that your accuser, not you, was the aggressor.
The FBI maintains the National Crime Information Center database (NCIC). There are two ways to get the NCIC criminal history (rap sheet) of the witnesses the prosecutor is relying on to prove the state or the government’s case against you. One way is to have the judge sign an order directing the FBI to produce the rap sheet and turn it over to the judge so he or she can review it and tell you if the witnesses have a criminal history or not. Technically, you aren’t entitled to possess the rap sheet, but you have the right to see it or at a minimum have a judge review the rap sheets of your accusers and eyewitnesses against you and tell you what’s in it. The other way to get the rap sheet is to fight for it. The first thing I do is demand the prosecutor runs the NCIC rap sheets of the witnesses against my client. If the prosecutor doesn’t turn it over, I will then file a motion to compel to force the prosecutor to turn it over. A few years ago, a Las Vegas Municipal Court judge didn’t agree with me that I was entitled to see the rap sheets of the witnesses against my clients. The city prosecutor said I was “fishing”. Obviously, I wasn’t going to accept that. I appealed the judge’s ruling to a Clark County District Court judge who agreed with me that I was entitled to see the rap sheets and he reversed the judge who ruled against me. He ordered the municipal court judge to order the city attorney to run the rap sheets through NCIC and turn over the rap sheets for me to review.
If you are represented by a lawyer in a criminal case, make sure you ask your lawyer if he or she has asked the prosecutor to see the rap sheets of witnesses against you. If your lawyer hasn’t done so, then you need to get a better lawyer.