The Supreme Court’s Glossip Ruling and the Prosecutor’s Solemn Duty of Disclosure Dmitriy SmirnovMarch 3, 2025 Firm News Justice Sonia Sotomayor’s recent opinion in the Supreme Court’s ruling on Richard Glossip’s case brought renewed attention to the critical obligations prosecutors bear under landmark decisions familiar to both prosecutors and criminal defense attorneys: Brady v. Maryland, Giglio v. United States, and Napue v. Illinois. Reading Glossip made me reflect on the solemn duty of disclosure—a duty I took seriously as a former federal prosecutor and now work to enforce as a white-collar criminal defense attorney, ensuring the government upholds the same high standard. Justice Sotomayor’s emphasis on the government’s misconduct in violating Napue resonates deeply, underscoring the paramount importance of prosecutorial candor and the imperative to correct false testimony. The ruling serves as a stark reminder that not all prosecutors take this duty as seriously as they should. Given the mistakes we now know were made in Glossip, this moment calls for a refresher on the pivotal body of case law governing prosecutorial disclosure. These decisions form the backbone of a prosecutor’s ethical and constitutional responsibilities and understanding them is essential to protecting the integrity of the justice system and the rights of the accused. The Glossip Case: A Synopsis Richard Glossip was convicted for orchestrating the 1997 murder of Barry Van Treese, based primarily on the testimony of Justin Sneed. Sneed admitted to committing the murder but claimed Glossip had solicited him to do so. As no physical evidence linked Glossip directly to the crime, Sneed’s testimony in this regard was pivotal. Years later, it emerged that prosecutors had withheld crucial evidence regarding Sneed’s mental health and had failed to correct his false testimony at trial—what Justice Sotomayor referred to as a Napue violation. These violations of due process led the Supreme Court to overturn Glossip’s conviction and order a new trial. Understanding Brady, Giglio, and Napue Three landmark Supreme Court cases define a prosecutor’s obligation to disclose evidence: Brady v. Maryland (1963): Requires prosecutors to disclose any exculpatory evidence to the defense—information that could exonerate the defendant or reduce culpability. Giglio v. United States (1972): Extends Brady to require disclosure of any agreements or promises made to witnesses in exchange for their testimony, ensuring the defense can challenge witness credibility. Napue v. Illinois (1959): Holds that convictions obtained through false testimony violate due process, particularly when the prosecution knew or should have known of the falsehood and failed to correct it. Unlike Brady and Giglio, where compliance can involve subjective judgment calls about the materiality of evidence, a Napue violation is unambiguous—when a prosecutor fails to correct false testimony, due process has been undeniably violated. That was precisely the issue in Glossip. Challenges in Prosecutorial Compliance Ensuring full compliance with these obligations presents significant challenges: Subjectivity in Evidence Evaluation: Determining what constitutes exculpatory evidence (Brady) or impeachment material (Giglio) is not always straightforward. Prosecutors must assess the materiality and potential impact of evidence, often under tight timelines and with limited information. Volume and Complexity of Cases: High caseloads can lead to inadvertent oversights. While not all failures to disclose are intentional, the duty remains the same: full and fair disclosure. The Prosecutor’s Inherent Desire to Win: No prosecutor enters the courtroom hoping to lose. The adversarial nature of the system demands zealous advocacy, but that zeal can sometimes—whether consciously or unconsciously—skew how prosecutors view evidence and, correspondingly, the materiality of and impact of evidence from a defense perspective. Prosecutors may convince themselves that a piece of evidence is not “material” or that impeachment evidence wouldn’t change the outcome. This psychological bias can erode their obligation to err on the side of disclosure. Prosecutors, of course, have an ethical duty beyond legal compliance—they must ensure fairness in the process. Many in the defense bar advocate for open file disclosure (with limited exceptions to protect ongoing investigations) as a safeguard against wrongful convictions. Because I appreciated firsthand the challenges outlined here, my practice as a federal prosecutor was to use open file disclosure whenever possible to avoid mistakes. A conviction should never be pursued at the risk of improperly withholding evidence, whether intentionally or not. The stakes—defendants’ liberty, sometimes their lives—are simply too high. The Defense’s Role in Safeguarding Justice While the ethical and legal onus is on prosecutors to disclose, defense counsel must be proactive in protecting their clients: A skilled defense attorney will be adept at identifying inconsistencies, missing evidence, or gaps in the prosecution’s case, prompting further investigation or demands for disclosure. Once these inconsistencies arise, strategic demands for disclosure are key. A well-crafted request for additional information not only forces the prosecution to reexamine its files but also creates a duty of inquiry that may unearth previously overlooked evidence. It is, however, important to note that a prosecutor has an affirmative duty to inquire and disclose any material evidence that could affect the outcome of a trial, even when the defense does not specifically request exculpatory evidence. This independent duty of inquiry was discussed in United States v. Agurs (1976), where the Court extended the prosecutorial obligation under Brady to cases where defense counsel did not request the exculpatory evidence. The Court held that the prosecution is not required to disclose all the information it has gathered to defense counsel, but “if the evidence is so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce, that duty should equally arise even if no request is made.” A smart defense attorney, however, can heighten this obligation by making specific requests, thereby increasing the likelihood of court intervention later if an issue arises. An experienced defense attorney also knows that a prosecutor’s duty to disclose exculpatory evidence extends beyond their personal knowledge to the entire prosecution team. This principle was firmly established in Kyles v. Whitley (1995), where the Supreme Court held that a prosecutor’s Brady obligations are not limited to the evidence they personally possess. Instead, the prosecution is responsible for all exculpatory material held by the broader “prosecution team,” which includes law enforcement officers and investigators working on the case. Kyles reinforced that prosecutors cannot shield themselves from disclosure obligations by remaining willfully ignorant of what the police know. If law enforcement possesses evidence that could exonerate a defendant, the prosecutor is still required to disclose it—even if they never personally reviewed it. This ruling makes clear that the duty to disclose is a collective responsibility, preventing the government from circumventing Brady by compartmentalizing knowledge among different agencies. Through these demands, a vigilant defense can force prosecutors to reassess their case, introduce doubt into the judge’s or jury’s minds, and, in some cases, even lead to the withdrawal of charges. A defendant facing the loss of liberty must choose counsel wisely. The right attorney—one with experience, attention to detail, and a deep understanding of a prosecutor’s obligations—can recognize when something is missing, press for additional disclosure, and chip away at the case, either persuading the prosecution to reconsider or creating doubt in the courtroom. Conclusion The Supreme Court’s decision in Glossip serves as a poignant reminder of the delicate balance within our criminal justice system. Prosecutors have a solemn duty to uphold their duties under Brady, Giglio, Napue, and their progeny, recognizing that their role is not to win at all costs but to ensure justice is served. At the same time, defense attorneys—especially in white-collar criminal cases, where a single detail among voluminous records can spell the difference between conviction and acquittal—must stay vigilant, scrutinizing every piece of evidence and demanding full transparency. Experienced Legal Representation in SEC Defense and White-Collar Criminal Defense Securities fraud, if serious enough, can escalate from a regulatory issue to a criminal prosecution by law enforcement authorities. If you are facing an SEC investigation or allegations of securities violations, it is critical to have an attorney with deep experience in both regulatory enforcement and white-collar criminal defense. Alejandro Soto, Esq., a white-collar criminal defense lawyer, specializes in defending individuals and entities facing criminal and regulatory investigations and charges involving financial crimes, including securities fraud and insider trading, money laundering, wire fraud, unlicensed money transmitting, and the like. If you receive a Grand Jury Subpoena, an SEC Wells notice, an SEC subpoena for documents or testimony, a FINRA 8210 request, a FINRA on-the-record (OTR) interview request, or a similar inquiry from a state regulator, such as Florida’s Office of Financial Regulation (OFR), act immediately. Contact Fridman Fels & Soto, PLLC to speak with an experienced defense attorney. Mr. Soto is admitted in Florida and Washington, D.C. Post navigation The SEC’s Case For Shadow Trading: A Misguided Expansion of Insider Trading Law?