Remember a few years ago, when Horry County Police said that they would be handling evidence a little differently now that a judge has told them they have to follow the rules?

Administrative Judge Steven John gave Horry and Georgetown law enforcement agencies until Jan. 1 to start turning over all evidence in their cases before trial begins.

“What’s happening is that they’re not letting our office know what they have,” 15^th Circuit Solicitor Jimmy Richardson said.

Can a prosecutor simply not ask law enforcement, not look in law enforcement’s files, and claim ignorance when the defense realizes that the prosecutor has not turned over all of the evidence?

What is Discovery in a Criminal Case in SC?

Prosecutors must turn over two types of evidence in criminal cases in South Carolina:

Rule 5 Material:

Any evidence that a prosecutor intends to use in trial, including statements by the defendant, other witness statements, and other types of evidence that are listed in Rule 5 of the SC Rules of Criminal Procedure, must be provided to the defense within 30 days after it is requested.

When a judge says it must be turned over before trial, this is a partial truth – the judge is not enforcing the rules against the prosecutors and the judge is allowing the prosecutor’s practice of not finding and turning over the evidence to continue.

Rule 5 says that it must be turned over within 30 days after it is requested. Of course, a conviction will not be overturned on appeal if the evidence is disclosed prior to trial, failure to disclose within the 30 days is not grounds to dismiss or exclude the evidence, and there is no remedy for the prosecution’s failure to disclose evidence until the last minute.

Brady Material:

The US Supreme Court case Brady v. Maryland says that prosecutors are required to turn over any evidence or information that would tend to help the defendant’s case whether the defendant requests Brady material or not.

Subsequent decisions by the Supreme Court have clarified this rule, defining what is exculpatory – for example, impeachment material (information that would tend to show a state’s witness is not believable) is Brady Material.

In another landmark decision, Kyles v. Whitley, the US Supreme Court was clear that the prosecution is responsible for information contained in the files of state agencies – especially law enforcement’s files.

Kyles v. Whitley was a case about a prosecutor who said the police never turned over the information to them, and which said the prosecutor must look in law enforcement’s file. It’s a case Horry County prosecutors are familiar with, which is why the lead prosecutor’s statement, “what’s happening is that they’re not letting our office know what they have,” is a bit of a problem…

Brady Violations = Wrongful Convictions

What happens if the undisclosed evidence includes proof that the defendant did not commit the crime? One possibility is that an innocent person goes to jail.

Another possibility is that the prosecutor, the defense attorney, or the judge becomes aware of the evidence during the trial, and the process must be postponed or continued while the evidence is shared among the parties – judges will often allow the evidence in anyway, giving the defense no opportunity to investigate new claims, evidence, or witnesses.

If the evidence doesn’t come to light until after the trial, then the entire outcome can be challenged, and a conviction overturned – a situation that erodes public confidence in the justice system.

When the prosecution doesn’t turn over all evidence at an early stage of the proceedings, the defense cannot effectively prepare for trial – which causes the system to break down and is one of the leading causes of wrongful convictions along with false confessions and paid informants.

Horry County and Myrtle Beach Criminal Defense Lawyer

One part of the fight in every criminal case we handle is looking for the evidence that the prosecutor is not turning over – prosecutors in South Carolina are not disciplined for withholding evidence, prosecutors are immune from lawsuit for even the most incompetent malpractice, convictions are rarely overturned for Brady violations, and our judges are loathe to criticize prosecutors in court.

Until judges start enforcing the discovery rules, including Rule 5 and the requirements of Brady v. Maryland, this is a problem that is not going to be solved.

If you or a family member have been charged with a crime in Myrtle Beach, Conway SC, or the Horry County area, call me at (843) 492-5449 or fill out our online contact form to set up a free consultation to discuss your case.