Exculpatory evidence thread:
It seems likely that the OIG report is going to say exculpatory evidence existed as to Carter Page but wasn’t provided to the FISA court, so here are some things to know about exculpatory evidence. /1
It seems likely that the OIG report is going to say exculpatory evidence existed as to Carter Page but wasn’t provided to the FISA court, so here are some things to know about exculpatory evidence. /1
Exculpatory evidence is evidence that tends to show that the person is not guilty of whatever it is they are being accused of. It could be any kind of evidence: documents, testimony, records or the lack of them, physical evidence, hearsay, etc. /2
You often hear exculpatory evidence called “Brady” evidence but the two terms are slightly different. “Brady” evidence also includes evidence that may only mitigate guilt or clearly show a need for a lesser punishment, in addition to evidence outright showing innocence. /3
“Brady” evidence only comes into play in criminal prosecutions. The idea of the Brady case is that it’s a violation of due process for the government to prosecute you for a crime while sitting on evidence that you’re innocent. /4
So the Brady case created an obligation on the Government to give “Brady material” to the defense after a person is charged & formed the foundation for corollary rules that the Government also has to turn over info about its witnesses that undermine those witnesses testimony./5
All of this turning over of evidence to the defense has two additional factors. 1. As noted, it only comes into play after the person is charged, & 2. It doesn’t apply to info held by the entire US govt, only to the prosecution team, so the AUSAs & the agencies helping them./6
The ordinary criminal law rule then is that exculpatory evidence does NOT have to be presented to the grand jury or to a court in order to get a warrant. The defense does not participate in either of those actions, which are investigatory tools of the prosecution. /7
The theory here is that both actions are secret (from the public) so there’s no reputational harm & they are pre-charge, so there’s no legal harm either at that stage. Once the case moves to the public stage - a charge is brought - exculpatory evidence becomes important. /8
Setting aside whether that theory is right or not, the reality is that the grand jury info & the warrant info is provided to the defense also once a charge is brought, so the defense can point to holes in the case & to any exculpatory evidence at the public trial. /9
So we may hear commentary from current or former prosecutors or former judges saying that not providing exculpatory evidence to the FISA court to get warrants is no big deal because exculpatory evidence is never provided to the courts for warrants or to grand juries. /10
That argument is incorrect for at least 2 reasons. The FISA court is not a grand jury. The person subject to the FISA order may never find out they are being surveilled; they will never be provided the evidence against them or an opportunity to defend themselves. /11
They will also never be provided with any exculpatory or “Brady” evidence by the govt - ever. No one will test the strength of the evidence provided to the FISA court about them - ever. It’s one thing to do things in secret & w/out looking at exculpatory evidence temporarily. /12
It’s another thing when the entire process is conducted in secret & on top of that the govt still fails to advise the court of evidence that contradicts the govt’s claims. That’s exactly what the Supremes said was the problem in Brady. /13
The second problem is that -setting aside fairness to the individual- failing to advise the court of contradictory evidence where there is no defense participation, *abuses & corrupts the court.* It fails to accurately describe the strength of the evidence for the warrant./14
Prosecutors don’t have to advocate for the defense of course, but they are officers of the court: they are required to be honest w/the court & to seek justice. Omitting contradictory info in the secret setting of the FISA court directly violates these duties. /15
Bottom line: because the FISA court does not operate like a criminal court, it makes no conceptual sense to use the criminal rules regarding exculpatory evidence in it. Doing so in fact perverts justice, which is unacceptable, especially when using its power against a citizen./16
