If a prosecutor possesses exculpatory evidence that had it been disclosed to the defense might have induced a reasonable jury to acquit, failure to provide it to the defense would be a reversible error. Brady v. Maryland, 373 U.S. 83 (1963). The rule has been expanded to take in investigators and other members of the "prosecutorial team" broadly understood. Otherwise investigators assisting in a prosecution could conceal from the prosecutors exculpatory evidence that the investigation had revealed and then the evidence would never be revealed to the defense. But EDS was not a part of the prosecutorial team. It had been hired as we said to process and pay bills submitted to Indiana Medicaid. It was not a private detective agency hired by the state agency to assist state and federal prosecutors in prosecuting Medicaid fraud. Medicaid fraud investigators were part of the prosecutorial team, but EDS was not. Because it does the billing for Indiana Medicaid, the company has records that can be useful as evidence in fraud prosecutions. But the defense had the same access to those records as the prosecutors did, and so there was no suppression of evidence.
That's why Gray is reduced to arguing that in advance of trial the government should have directed EDS to create and run programs to extract data from its database that would be useful to the defense. That argument is a non-starter. We find the proposed extension of Brady difficult even to understand. It implies that the state has a duty not merely to disclose but also to create truthful exculpatory evidence. The failure to create exculpatory evidence does not constitute a Brady violation. As it happened, the government for its own purposes ran such a program during the trial and having done so, as we know, promptly turned over the results to the defendant because they were potentially exculpatory. It had no duty to go further and conduct the defense's investigation for it.
It may be helpful to distinguish between patent and latent exculpatory evidence. Patent exculpatory evidence is evidence that is exculpatory on its face; an example would be a confession by Suddoth, in the possession of the FBI, in which he took full responsibility for the fraud and described Gray as an innocent whom he had gulled. Such evidence is Brady material. Latent exculpatory evidence is evidence that requires processing or supplementation to be recognized as exculpatory. It is illustrated by the timestamp data in this case, the exculpatory character of which was unknown and unknowable until EDS wrote and ran the program that extracted the data from its database.Judge Posner then, taking a belt and suspenders approach, held that, even if the conclusion were otherwise, the alleged concealment was not prejudicial.
To charge prosecutors with knowledge of exculpatory evidence buried in the computer databases of institutions that collect and store vast amounts of digitized data would be an unreasonable extension of the Brady rule. The courts, rightly in our view, have refused to make it. The government is not "obliged to sift fastidiously" through millions of pages (whether paper or electronic). United States v. Warshak, 631 F.3d 266, 297 (6th Cir. 2010). It is "under no duty to direct a defendant to exculpatory evidence [of which it is unaware] within a larger mass of disclosed evidence." United States v. Skilling, 554 F.3d 529, 576 (5th Cir. 2009), vacated in part on other grounds, 130 S. Ct. 2896 (2010).
The Brady rule is not a rule of pretrial discovery (Fed. R. Crim. P. 16 is, but is not contended to be relevant to this case); under the Brady rule (an interpretation not of procedural rules, but of the due process clause) disclosure even in mid-trial suffices if time remains for the defendant to make effective use of the exculpatory material. In any event the government cannot make disclosure until the exculpatory evidence comes into its possession (actual or constructive—constructive if the actual possession is by a police investigator or other member of the prosecutorial team); that didn't happen here until mid-trial; nor was the delay deliberate or otherwise in bad faith. And as soon as the government received the evidence it turned it over to the defense— which had time to use it but did not do so.
For the related issue of the a mass undifferentiated document dump, see my prior blog discussing Skilling: The Mass Document Dump and the Prosecutors' Brady Obligations (2/11/11).