DEFINITIONS & LEGALESE

De Novo

From Latin, meaning “from the new.” When a court hears a case de novo, it is deciding the issues without reference to any legal conclusion or assumption made by the previous court to hear the case. A trial court may also hear a case de novo following the appeal of an arbitration decision.

Forensic Interview & Physical Exam 

Forensic interviewing is a means of gathering information from a victim or witness for use in a legal setting, such as a court hearing. It is a key component of many Child Protective Services investigations.​

Brady Rule/Brady Violation

The Brady Rule, named after Brady v. Maryland, 373 U.S. 83 (1963), requires prosecutors to disclose materially exculpatory evidence in the government’s possession to the defense. A “Brady material” or evidence the prosecutor is required to disclose under this rule includes any evidence favorable to the accused—evidence that goes towards negating a defendant’s guilt, that would reduce a defendant’s potential sentence, or evidence going to the credibility of a witness.

If the prosecution does not disclose material exculpatory evidence under this rule, and prejudice has ensued, the evidence will be considered suppressed. The evidence will be considered suppressed regardless of whether the prosecutor knew the evidence was in his or her possession, or whether or not the prosecutor intentionally or inadvertently withheld the evidence from the defense.

Further, in cases subsequent to Brady, the Supreme Court has eliminated the requirement for a defendant to have requested a favorable information, stating that the Prosecution has a constitutional duty to disclose, that is triggered by the potential impact of favorable but undisclosed evidence See Kyles v. Whitley, 514 U.S. 419, 434 (1955); United States. v. Bagley, 473 U.S. 667 (1985). 

The defendant bears the burden to prove that the undisclosed evidence was both material and favorable.  In other words, the defendant must prove that there is a “reasonable probability” that the outcome of the trial would have been different, had the evidence been disclosed by the prosecutor. See Kyles, 514 U.S. at 433 (1955).  Bagles and Kyles Court further defined the “materiality” standard, outlining the four aspects of materiality.  First, the “reasonable probability” of a different result is not a question of whether the defendant would more likely than not have received a different verdict with the evidence, but whether the government’s evidentiary suppression undermines the confidence in the outcome of the trial.  The second aspect is that it is not a sufficiency of evidence test, and the defendant only has to show that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine the confidence in the verdict.  Third aspect is that there is no need for a harmless error review, because a Brady violation, by definition, could not be treated as a harmless error.  Fourth and final aspect of materiality the Kyles Court stressed was that the suppressed evidence must be considered collective, not item by item, looking at the cumulative effect to determine whether a reasonable probability is reached.  See Kyles, 514 U.S. at 433-438. 

The U.S. Supreme Court

This Court has held that the Brady duty to disclose extends to impeachment evidence as well as exculpatory evidence, and Brady suppression occurs when the government fails to turn over even evidence that is ‘known only to a police investigator and not to the prosecutor.’ ‘Such evidence is material if “there is a reasonable possibility that had the evidence been disclosed to the defense, the result of the proceeding would have been different”,’ although a ‘showing of materiality does not require demonstration by a preponderance of the evidence that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal.’ The reversal of a conviction is required upon a ‘showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’

Deposition

The process of giving sworn evidence. For example, “The deposition of four expert witnesses.”

Suggestibility

Suggestibility is the quality of being inclined to accept and act on the suggestions of others. One may fill in gaps in certain memories with false information given by another when recalling a scenario or moment. Suggestibility uses cues to distort recollection: when the subject has been persistently told something about a past event, his or her memory of the event conforms to the repeated message.[1]

A person experiencing intense emotions tends to be more receptive to ideas and therefore more suggestible. Generally, suggestibility decreases as age increases. However, psychologists have found that individual levels of self-esteem and assertiveness can make some people more suggestible than others; this finding led to the concept of a spectrum of suggestibility.[2]

RT

Reporter’s Transcript from the county superior court proceedings.

CT

Clerk’s Transcript from the state court proceedings.

SART

Sexual Assault Response Team

For survivors of sexual assault, obtaining a survivor-sensitive medical examination through a Sexual Assault Response Team, or “SART,” program can help to reduce additional trauma during the medical and/or criminal justice process. Performed by highly-trained individuals, the comfort and privacy of the victim are prioritized.