{"id":7781,"date":"2013-05-31T12:05:50","date_gmt":"2012-10-01T07:28:25","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-10-01T07:28:25","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=7781","title":{"rendered":"CA6: Officer’s trial contradiction of SW affidavit and suppression testimony was Brady<\/em> and Franks<\/em> information"},"content":{"rendered":"

Where the officer at trial contradicted the affidavit for search warrant and suppression hearing testimony, and the prosecutor knew it was going to happen shortly after the jury was sworn, there was [arguably] a Brady violation, and defense counsel could have immediately moved for a continuance to develop the issue and potentially move for a mistrial because of Franks. (On this record, however, both the Brady and Franks issue fail on appeal because they are fully developed. At trial, the defense got full cross-examination of the contradictions.) United States v. Wilson<\/a>, 501 Fed. Appx. 416 (6th Cir. 2012):<\/p>\n

Because the government learned during trial that Officer Petrich’s testimony would not be consistent with the search warrant affidavit he signed under oath or with his report, the government violated Rule 16(c) by failing to disclose this development to the defense immediately. See United States v. Hardy, 586 F.3d 1040, 1043 (6th Cir. 2009). Two of the Zuern factors favor Wilson’s motion for a mistrial because the government solicited Officer Petrich’s trial testimony and the government’s line of questioning was not reasonable where the defense was not given previous notification of the changed testimony. The remaining three factors, however, favor the government. Wilson did not contemporaneously object or seek other relief, he did not prove that the government acted in bad faith, and the details concerning Wilson’s walk with the informant was only a small part of the trial evidence presented against Wilson.<\/p>\n

Defense counsel did not ask to approach the bench when the changed testimony first came to light. Had counsel objected and asked for a sidebar, the district court might have granted Wilson a continuance to prepare to meet the changed testimony, or the court might have interrupted the trial to allow Wilson an opportunity to make a motion to suppress and challenge the search warrant and affidavit under Franks v. Delaware, 438 U.S. 154 (1978). See Fed. R. Crim. P. 16(d). If the district court had found a violation under Rule 16(c), Brady, or Giglio, the court might have excluded the evidence seized from 613 Thomson Apartment 2 as a sanction for the violation. But defense counsel did not object, ask for a continuance or sanctions, or request a Franks hearing.<\/p>\n

Even if defense counsel had asked for a Franks hearing during trial, however, Wilson would not have prevailed. … <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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