judicial notice taken of the fact that banks keep microfilm or other photographic copy of each check drawn and cashed by its customers on account in its bank
How later courts described this case
- judicial notice taken of the fact that banks keep microfilm or other photographic copy of each check drawn and cashed by its customers on account in its bank
- focus of the test is upon “the ultimate possibility of harm to the defendant”
Written by the judges who cited it.
The opinion
Separate Statement on Vote to Deny Rehearing En Banc
J. SKELLY WRIGHT,
Circuit Judge:
After much initial and determined opposition from judges and practitioners who value form over fact, the sporting theory of justice is slowly being eliminated from the trial of civil cases. Liberal provision for discovery has made the search for truth a realistic enterprise rather than an obstacle course festooned with devices for denying evidence to the unwary and the unadvised. Much the same movement is apparent in the trial of criminal cases, although for some arcane reasons the air of secrecy and competitiveness still attends the criminal trial.
Both the majority and the dissent here recognize that the principles of discovery should be applied in criminal cases. See Rule 16, Fed.R.Crim.P. Indeed the dissent notes that the “superiority of the prosecution’s facilities for fact-gathering constitutes the basis for the duty to disclose exculpatory evidence and for the enforcement of it by setting aside convictions secured in part because of its violation.” Levin v. Katzenbach, 124 U.S.App.D.C. 158, 165 , 363 F.2d 287, 294 (1966) (dissenting opinion). Thus the only difference between the two positions is in their reading of the facts in this case.
Since Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), in making the judgment whether due proe-cess is violated when exculpatory evidence is denied the defense, the focus is on the materiality of the evidence rather than “the good faith or bad faith
*1228 of the prosecution.” 373 U.S. at 87 , 83 S.Ct. at 1196 . If material evidence in the hands of the prosecution is denied the defense for whatever reason, the reviewing court must decide whether that denial might reasonably have affected the course and therefore the outcome of the trial. 1 That is what the panel tried to do here, and I see no reason why this court sitting en banc should upset the result it reached.
. There is, of course, an affirmative duty on the part of the prosecution to disclose such evidence. The fact that the defense may not have moved for its production is irrelevant. Obviously the defense cannot move to have the Government produce what it does not know exists. Certainly if such evidence is not to be offered by the Government, it should be made available to the defense. In any event it should not be suppressed.