good faith of prosecutor relevant only insofar as special benefit of the doubt on the question of materiality should be given to a defendant when the prosecutor’s failure to reveal evidence is not in good faith
How later courts described this case
- good faith of prosecutor relevant only insofar as special benefit of the doubt on the question of materiality should be given to a defendant when the prosecutor’s failure to reveal evidence is not in good faith
- prosecutor described defendant as “the lowest form of life in the country”
Written by the judges who cited it.
The opinion
SWYGERT, Circuit Judge
(concurring).
I concur in the majority’s decision that the failure to produce this tape is harmless error, but I cannot agree with all that is said to support that conclusion. Crimaldi’s statement contains impeachment material that the defense did not already have. Even if the defendant and his attorney suspected that Crimaldi had been a “juice collector,” actual proof of this fact was necessary for effective and ethical impeachment. Such proof is contained in Crimaldi’s statement, and had defense counsel been aware of it he might have been in a position to employ a different “trial strategy.” I believe that Crimaldi’s admissions concerning his criminal activity could have been used to impeach his testimony to a much greater degree than was done.
I agree with the finding of harmless error, however, because I believe that Crimaldi’s credibility was not a crucial factor. As Judge Cummings demonstrates, his story was fully corroborated by tape recordings or testimony of governmental agents. The prosecutor in the initial portion of his closing argument practically conceded Crimaldi’s unreliability. Instead, he asked the jury to consider all of the other evidence which, in my opinion, is overwhelming. I am convinced that this is what impressed the jurors and that full knowledge of Crimaldi’s activities would not have influenced their verdict. Accordingly, I join in the affirmance.
I am compelled, however, to register my disquietude with the Government’s withholding of this tape. Perhaps persons with criminal backgrounds such as Crimaldi’s must be employed by governmental agencies. But at least both the agency and the prosecutors should take particular care in discovering all statements and information relating to such informants that should be given to defense counsel. The use of such witnesses puts this special burden on the prosecutor. Lack of communication between sections of the Justice Department and poor memories of governmental agents are weak excuses. To me the Government’s thoughtless, cavalier conduct in this case comes to the very brink of requiring reversal.
The use of informants such as Crimaldi who have an admitted extensive, serious, and unpunished criminal background is a questionable practice to begin with, in my opinion. The failure of the Government to make the information in Crimaldi’s statement available to the trial judge in camera (as the Government now concedes was its duty), additionally makes my vote for an affirmance a reluctant one.