A prosecutor’s failure to disclose material exculpatory information to the defense renders a guilty or no contest plea constitutionally invalid and forms the basis for a grant of habeas corpus.[497]  Where the prosecution fails to disclose exculpatory evidence, a motion to withdraw a guilty plea should be granted where there is a reasonable probability that, but for the discovery violation, the defendant would have refused to enter the plea and insisted on going to trial.[498]

 

In California, disclosure of constitutionally mandated discovery under Brady and its progeny is required, even though this evidence is not included under Penal Code § 1054.1.[499]  The California Supreme Court further refined the definition of exculpatory evidence in People v. Coddington: “. . . Evidence is favorable and must be disclosed if it will either help the defendant or hurt the prosecution. . . .”[500]

 

            The disclosures required under Brady also include the duty to disclose all information which might potentially impeach the credibility of prosecution witnesses or evidence.[501]

 

            The duty to disclose is applicable even though there has been no request by the accused.[502]  The duty encompasses impeachment evidence as well as exculpatory evidence.[503]  The rule covers information “known only to the police investigators and not the prosecutor.”[504]  “The individual prosecutor is presumed to have knowledge of all information gathered in connection with the government’s investigation.”[505]

 

Prosecution suppression of exculpatory evidence is material and therefore prejudicial if there is a reasonable probability that the suppressed evidence would have produced a different verdict.[506]  Evidence it “might” have changed the outcome is not enough.  Undisclosed evidence is material if its absence prevented the defendant from receiving a trial resulting in a verdict worthy of confidence, or if it could reasonably be taken to put the case in such a different light as to undermine confidence in the verdict.[507]

 

Under California law, the State’s obligation to disclose continues into post-conviction actions.[508]  The Ninth Circuit has also held the prosecution had a duty to turn over exculpatory evidence relevant to a habeas corpus proceeding.[509]

 

          The United States Supreme Court has held that requiring a defendant to waive the right to receive impeachment evidence prior to plea as part of a “fast track” plea agreement does not violate the Constitution.[510]  The prosecution still has a burden of disclosing information that pertains to factual innocence prior to plea.

 

[497] Banks v. Dretke, 540 U.S. 668 (2004); Horton v. Mayle, 408 F.3d 570 (9th Cir. 2005) (habeas denial vacated where prosecution violated defendant’s rights under Brady v. Maryland by failing to disclose an agreement between a witness and the police); Sanchez v. United States, 50 F.3d 1448 (9th Cir. 1995); In re Brown (1998) 17 Cal.4th 873, 879-880; see also Tate v. Wood, 963 F.2d 20 (2d Cir. 1992); Miller v. Angliker, 848 F.2d 1312 (2d Cir. 1988).  But see Matthew v. Johnson, 201 F.3d 353 (5th Cir. 2000) (holding that in 1994 for a Brady violation to invalidate a plea, rather a trial, would be a “new rule” under Teague v. Lane, 489 U.S. 288 (1989) and so does not apply on habeas corpus).

[498] Sanchez v. United States, 50 F.3d 1448, 1454 (9th Cir. 1995); Campbell v. Marshall, 769 F.2d 314, 324 (6th Cir. 1985); Scroggins v. State, 859 S.W.2d 704, 709 (Mo. Ct. App. 1993); State v. Sturgeon, 231 N.W.2d 487 (Wis.Ct.App. 1999); see also Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997)(en banc), cert. denied, 118 S.Ct. 1827 (1998) (prosecutor failed to disclose information in state’s files showing that prosecution’s central witness, who later confessed to murder for which petitioner was convicted, had previously been committed to mental hospital for violent rages, had long history of prior crimes and lying to the police and blaming others to cover up his own guilt); East v. Johnson, 123 F.3d 235 (5th Cir. 1997) (prosecutor suppressed evidence that would have led defense to discover report raising substantial questions about sanity and credibility of crucial sentencing witness who claimed that petitioner robbed and raped her prior to murder for which petitioner was sentenced to die); Guerra v. Johnson, 90 F.3d 1075 (5th Cir. 1996)(police coerced two originally-exculpatory eyewitnesses into corroborating prosecution theory); Riggins v. Rees, 74 F.3d 732 (6th Cir. 1996)(state’s refusal to provide transcripts, rather than merely court reporter’s tapes, of previous two mistrials violated Equal Protection Clause); Devose v. Norris, 53 F.3d 201 (8th Cir. 1995)(refusal to disclose identity of confidential informant eyewitness).

[499] Izazaga v. Superior Court (1991) 54 Cal.3d 356, 378.

[500] People v. Coddington (2000) 23 Cal.4th 529.

[501] People v. Santos (1994) 30 Cal.App.4th 169, 178-179; People v. Little (1997) 59 Cal. App.4th 426; Kyles v. Whitley, 514 U.S. 419, 450-451 (1995).

[502] United States v. Agurs, 427 U.S. 97, 107 (1976).

[503] United States v. Bagley, 473 U.S. 667, 676 (1985).

[504] Kyles v. Whitley, 514 U.S. 419, 438 (1995); see, e.g, Smith v. Secretary Dept. of Corrections, 50 F.3d 801, 824  (10th Cir.1995) (“the prosecution” extends to law enforcement personnel and other arms of the state involved in investigative aspects); United States v. Brooks, 296 U.S.App.D.C. 219, 966 F.2d 1500, 1503  (1992) (duty to investigate based on “close working relationship” between police and United States Attorney).

[505] United States v. Payne, 63 F.3d 1200, 1208  (2d Cir.1995); see, e.g., In re Malone (1996) 12 Cal.4th 935, 977, n. 22, 50 Cal.Rptr.2d 281, 911 P.2d 468; People v. Little (1997) 59 Cal.App.4th 426, 433, 68 Cal.Rptr.2d 907.

[506] Kyles v. Whitley, 514 U.S. 419, 438 (1995); United States v. Barton, 995 F.2d 931, 933-34 (9th Cir. 1993); In re Sassounian (1995) 9 Cal.4th 535.

[507] Strickler v. Greene, 527 U.S. 263 (1999).

[508] People v. Garcia (1992) 17 Cal.App.4th 1169.

[509] Thomas v. Goldsmith, 979 F.2d 746, 749-750 (9th Cir. 1992).

[510] United States v. Ruiz, 536 U.S. 622 (2002).

POST CON RELIEF " GROUNDS " PROSECUTION MISCONDUCT "FAILURE TO DISCLOSE EXCULPATORY EVIDENCE
Smith v. Cain, ___ U.S. ___, 132 S.Ct. 627 (Jan. 10, 2012) (prosecutor's failure to disclose contradictory statements of the sole eyewitness, whose testimony formed the basis of defendant's conviction, was a Brady violation requiring reversal of the conviction, because the statements are material where there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different).

GROUNDS " STANDARD FOR WHEN PROSECUTORIAL MISCONDUCT LEADS TO REVERSIBLE ERROR
People v. Higgins, (Cal. App. 4d, Jan. 13, 2011) ___ Cal.Rptr.3d ___, 2011 WL 106083 (prosecution misconduct warrants reversal if there is a reasonable chance of a more favorable result absent the improper conduct), citing College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 715 (trial error is usually deemed harmless in California unless there is a "reasonabl[e] probab[ility]" that it affected the verdict; "[p]robability" in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility); accord, People v. Superior Court (Ghilotti) (2002) 27 Cal. 4th 888, 918; People v. Elize (1999) 71 Cal. App.4th 605, 616.

LINKS -- PROSECUTION ETHICS
http://www.ethicsforprosecutors.com/quotes.html (quotes from this link actually come from a prosecutor's organization and could be used to remind our adversaries of their duties and responsibilities as stated by their professional organization).

GROUNDS " COMPULSORY PROCESS " PROSECUTION INTERFERENCE WITH DEFENDANT'S RIGHT TO PRESENT A DEFENSE
People v. Treadway (2010) 182 Cal.App.4th 562, 106 Cal.Rptr.3d 99 (conviction reversed because the prosecution interfered with the defendant's ability to call a witness by conditioning his co-defendants' pleas on a blanket restriction not to testify, including for the defense); In re Martin (1987) 744 P.2d 374, 391 ("[a] defendant's right to present a defense, including, most importantly, the right to 'offer the testimony of witnesses, and to compel their attendance, if necessary,' is at the very heart of our criminal justice system."); United States v. Henricksen, 564 F.2d 197 (5th Cir. 1977)(per curiam)( it is a constitutional violation for a prosecutor to condition a plea agreement on a co-defendant's promise not to testify regarding a co-defendant); United States v. Vavages, 151 F.3d 1185, 1191 (9th Cir. 1998) (it is improper for the prosecution to threaten to withdraw a plea agreement that has already been reached just because a witness agrees to testify for the defense); United States v. Morrison, 535 F.2d 23 (3d Cir. 1977) (prosecutors violate the defendant's right to present a defense if they unduly admonish potential defense witnesses about the penalties of perjury should they testify falsely); United States v. Golding, 168 F.3d 800 (4th Cir. 1999) (prosecutors violate defendant's rights if they threaten to bring additional charges against a witness if the witness gives exculpatory testimony on behalf of a defendant); United States v. Vavages, 151 F.3d 1185 (9th Cir. 1998) (prosecutors must not intimidate a witness who is willing to testify truthfully for the defense); U.S. v. Crawford, 707 F.2d 447 (10th Cir. 1983)(same); but see United States v. Bieganowski, 313 F.3d 264 (5th Cir. 2002) (prosecutors do not cross the line merely by informing a potential witness of the consequences of perjury).

GROUNDS -- PROSECUTION MISCONDUCT " INTERFERENCE WITH POTENTIAL DEFENSE WITNESSES
Prosecutors and judges may violate defendants rights in several ways by denying them access to exculpatory testimony. See generally Laurie L. Levenson, Prosecutors are increasingly being admonished or penalized for trying to stop or influence such testimony, National Law Journal (April 5, 2010). Laurie L. Levenson is the David W. Burcham Chair of Ethical Advocacy at Loyola Law School, Los Angeles. She is the author of the Federal Criminal Rules Handbook (2010). See People v. Treadway (2010) 182 Cal.App.4th 562, 106 Cal.Rptr.3d 99 (conviction reversed because the prosecution interfered with the defendant's ability to call a witness by conditioning his co-defendants' pleas on a blanket restriction not to testify, including for the defense, since this was "governmental interference violative of a defendant's compulsory-process right."); In re Martin (1987) 744 P.2d 374, 391 ("[a] defendant's right to present a defense, including, most importantly, the right to 'offer the testimony of witnesses, and to compel their attendance, if necessary,' is at the very heart of our criminal justice system."). Federal law is consistent. United States v. Henricksen, 564 F.2d 197, 198 (5th Cir. 1977)(per curiam)( it is a constitutional violation for a prosecutor to condition a plea agreement on a co-defendant's promise not to testify regarding a co-defendant: an agreement that interferes "with a defense witness's free and unhampered choice to testify violates due process."); United States v. Vavages, 151 F.3d 1185, 1191 (9th Cir. 1998) (it is improper for the prosecution to threaten to withdraw a plea agreement that has already been reached just because a witness agrees to testify for the defense); United States v. Morrison, 535 F.2d 23 (3d Cir. 1977) (prosecutors violate the defendant's right to present a defense if they unduly admonish potential defense witnesses about the penalties of perjury should they testify falsely); United States v. Golding, 168 F.3d 800 (4th Cir. 1999) (prosecutors violate defendant's rights if they threaten to bring additional charges against a witness if the witness gives exculpatory testimony on behalf of a defendant); United States v. Vavages, 151 F.3d 1185 (9th Cir. 1998) (prosecutors must not intimidate a witness who is willing to testify truthfully for the defense); United States v. Crawford, 707 F.2d 447 (10th Cir. 1983)(same). But see United States v. Bieganowski, 313 F.3d 264 (5th Cir. 2002) (prosecutors do not cross the line merely by informing a potential witness of the consequences of perjury). Prosecutors must not fail to ensure law enforcement officials do not intimidate defense witnesses. State v. Mackey, 293 S.E.2d 617 (N.C. 1982) (police detective's threats caused defense alibi witness to repudiate his earlier testimony exonerating the defendant); United States v. Hammond, 598 F.2d 1008 (5th Cir. 1979); Webb v. Texas, 409 U.S. 95, 97 " 98 (1972) (per curiam)(trial judge's " 'lengthy and intimidating warning' and 'threatening remarks' effectively caused the defendant's only witness not to testify" and, therefore, violated the defendant's constitutional rights); United States v. Serrano, 406 F.3d 1208, 1216 (10th Cir. 2005) (reviewing courts will examine the extent to which "the government actor actively discourage[d] a witness from testifying through threats of prosecution, intimidation, or coercive badgering."); United States v. Smith,997 F.2d 674, 680 (10th Cir. 1993) (Belot, J. concurring) (prosecutors and courts can ensure that their warnings are not viewed as unconstitutional coercion by allowing the defense witness to consult an independent attorney before deciding whether to testify); In re Martin, 744 P.2d 374 (Calif. Ct. App. 1987)(new trial granted, because the prosecution had the defense's first witness arrested outside the courtroom, in the presence of a news reporter, immediately after testifying so that other potential defense witnesses would know about the arrest, and other witnesses thereafter refused to testify). Prosecutors may also unreasonably deny immunity to defense witnesses, while granting it to prosecution witnesses. Williams v. Woodford, 384 F.3d 567, 600 (9th Cir. 2004) ("the prosecution's refusal to grant use immunity to a defense witness denies the defendant a fair trial only when (1) the witness's testimony would have been relevant, and (2) the prosecution refused to grant the witness use immunity with the deliberate intention of distorting the fact-finding process."); United States v. Straub, 538 F.3d 1147, 1156"1162 (9th Cir. 2008) (finding prosecution's refusal to grant immunity to defense witness who could have contradicted prosecution's immunized witness was grounds for reversal).

GROUNDS " DENIAL OF DUE PROCESS " PROSECUTION MISCONDUCT
People v. Higgins (Cal. App. 4d, Jan. 13, 2011) ___ Cal.Rptr.3d ___, 2011 WL 106083 (reversing convictions because of a finding of pervasive prosecutor misconduct, including (1) prosecutor's improper reference to expert witness's previous testimony for a rape defendant; (2) prosecutor's improper criticism of the length of defense counsel's cross-examination; (3) prosecutor's improper suggestion that defendant had been coached; (4) improperly argumentative cross-examination of defendant about whether his testimony was pathetic and despicable). Practice Advisory. This decision is extremely useful for its catalogue of different types of prosecutorial misconduct, including: (1) accusing counsel and expert of attack on a rape victim in another case; (2) misleadingly accusing the expert of delaying the turnover of his report; (3) accusing the expert of inconsistent opinions in this case as compared to other cases; (4) accusing the expert of merely making up an opinion for money; (5) condemning counsel for cross-examination of a complaining witness was improper comment about defense counsels integrity; (6) baseless accusations against counsel of coaching; (7) accusing the defendant of making up testimony to escape conviction on a charge he was not facing; (8) repeatedly using highly argumentative questions and not stopping when objections were sustained; (9) testifying in final argument that he had noticed a bulge in defendants pockets during an in-court demonstration; (10) bringing up sentencing considerations.; (11) urging the jury's "right" to convict, improperly encouraging the jurors to think of the case from a personal point of view; and (12) cumulative error and reversal based on a reasonable chance of a more favorable verdict.

Lower Courts of Fourth Circuit

GROUNDS " COMPULSORY PROCESS -- ATTENDANCE OF WITNESSES " DEPORTATION OF EXCULPATORY WITNESS
People v. Jacinto, ___ Cal.4th ___, 2010 WL 2105069 (May 27, 2010)(under the circumstances of this case, the deportation of a sole witness favorable to the defense did not violate defendant's federal and state constitutional rights to the compulsory attendance of witnesses in his favor).

Other

GROUNDS " DENIAL OF DUE PROCESS " PROSECUTION MISCONDUCT
People v. Higgins (Cal. App. 4d, Jan. 13, 2011) 119 Cal.Rptr.3d 856, 2011 WL 106083 (reversing convictions because of a finding of pervasive prosecutor misconduct, including (1) prosecutor's improper reference to expert witness's previous testimony for a rape defendant; (2) prosecutor's improper criticism of the length of defense counsel's cross-examination; (3) prosecutor's improper suggestion that defendant had been coached; (4) improperly argumentative cross-examination of defendant about whether his testimony was pathetic and despicable). Practice Advisory. This decision is extremely useful for its catalogue of different types of prosecutorial misconduct, including: (1) accusing counsel and expert of attack on a rape victim in another case; (2) misleadingly accusing the expert of delaying the turnover of his report; (3) accusing the expert of inconsistent opinions in this case as compared to other cases; (4) accusing the expert of merely making up an opinion for money; (5) condemning counsel for cross-examination of a complaining witness was improper comment about defense counsels integrity; (6) baseless accusations against counsel of coaching; (7) accusing the defendant of making up testimony to escape conviction on a charge he was not facing; (8) repeatedly using highly argumentative questions and not stopping when objections were sustained; (9) testifying in final argument that he had noticed a bulge in defendants pockets during an in-court demonstration; (10) bringing up sentencing considerations.; (11) urging the jury's "right" to convict, improperly encouraging the jurors to think of the case from a personal point of view; and (12) cumulative error and reversal based on a reasonable chance of a more favorable verdict.

GROUNDS " STANDARD FOR WHEN PROSECUTORIAL MISCONDUCT LEADS TO REVERSIBLE ERROR
People v. Higgins, (Cal. App. 4d, Jan. 13, 2011) 119 Cal.Rptr.3d 856, 2011 WL 106083 (prosecution misconduct warrants reversal if there is a reasonable chance of a more favorable result absent the improper conduct), citing College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 715 (trial error is usually deemed harmless in California unless there is a "reasonabl[e] probab[ility]" that it affected the verdict; "[p]robability" in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility); accord, People v. Superior Court (Ghilotti) (2002) 27 Cal. 4th 888, 918; People v. Elize (1999) 71 Cal. App.4th 605, 616.

CAL POST CON " GROUNDS " CRIMINAL DEFENSE " LOCATING DEPORTED WITNESS
People v. Herrera, 49 Cal.4th 613, 232 P.3d 710 (Jul. 1, 2010) (prosecutor's showing of witness unavailability, upon showing witness had been deported to El Salvador, and no treaty exists between the United States and El Salvador to allow for his return to stand as wtiness, satisfied constitutional requirements of due diligence by prosecutor to try to produce witness). CALPCR:7.37,7.54

GROUNDS " COMPULSORY PROCESS -- ATTENDANCE OF WITNESSES " DEPORTATION OF EXCULPATORY WITNESS
People v. Jacinto, 49 Cal.4th 263, 2010 WL 2105069 (May 27, 2010)(under the circumstances of this case, the deportation of a sole witness favorable to the defense did not violate defendant's federal and state constitutional rights to the compulsory attendance of witnesses in his favor).

CAL POST CON " GROUNDS " PROSECUTORIAL MISCONDUCT " PLEA BARGAIN CONDITION PROHIBITING WITNESS FROM TESTIFYING IN ANOTHER TRIAL
CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE, EVIDENCE People v. Treadway, No. C059069 Conviction and sentence of defendant for attempted robbery and firearm use is reversed as defendant's due process rights were violated when the prosecution made a material witness unavailable, as the prosecutor did not merely advise witnesses not to testify, he made it an outright condition of their plea bargains.

LINKS -- PROSECUTION ETHICS
http://www.ethicsforprosecutors.com/quotes.html (quotes from this link actually come from a prosecutor's organization and could be used to remind our adversaries of their duties and responsibilities as stated by their professional organization). CPCN:7.54

GROUNDS " COMPULSORY PROCESS " PROSECUTION INTERFERENCE WITH DEFENDANT'S RIGHT TO PRESENT A DEFENSE
People v. Treadway (2010) 182 Cal.App.4th 562, 106 Cal.Rptr.3d 99 (conviction reversed because the prosecution interfered with the defendant's ability to call a witness by conditioning his co-defendants' pleas on a blanket restriction not to testify, including for the defense); In re Martin (1987) 744 P.2d 374, 391 ("[a] defendant's right to present a defense, including, most importantly, the right to 'offer the testimony of witnesses, and to compel their attendance, if necessary,' is at the very heart of our criminal justice system."); United States v. Henricksen, 564 F.2d 197 (5th Cir. 1977)(per curiam)( it is a constitutional violation for a prosecutor to condition a plea agreement on a co-defendant's promise not to testify regarding a co-defendant); United States v. Vavages, 151 F.3d 1185, 1191 (9th Cir. 1998) (it is improper for the prosecution to threaten to withdraw a plea agreement that has already been reached just because a witness agrees to testify for the defense); United States v. Morrison, 535 F.2d 23 (3d Cir. 1977) (prosecutors violate the defendant's right to present a defense if they unduly admonish potential defense witnesses about the penalties of perjury should they testify falsely); United States v. Golding, 168 F.3d 800 (4th Cir. 1999) (prosecutors violate defendant's rights if they threaten to bring additional charges against a witness if the witness gives exculpatory testimony on behalf of a defendant); United States v. Vavages, 151 F.3d 1185 (9th Cir. 1998) (prosecutors must not intimidate a witness who is willing to testify truthfully for the defense); U.S. v. Crawford, 707 F.2d 447 (10th Cir. 1983)(same); but see United States v. Bieganowski, 313 F.3d 264 (5th Cir. 2002) (prosecutors do not cross the line merely by informing a potential witness of the consequences of perjury).

GROUNDS - PROSECUTION MISCONDUCT " INTERFERENCE WITH POTENTIAL DEFENSE WITNESSES
GROUNDS -- PROSECUTION MISCONDUCT " INTERFERENCE WITH POTENTIAL DEFENSE WITNESSES Prosecutors and judges may violate defendants rights in several ways by denying them access to exculpatory testimony. See generally Laurie L. Levenson, Prosecutors are increasingly being admonished or penalized for trying to stop or influence such testimony, National Law Journal (April 5, 2010). Laurie L. Levenson is the David W. Burcham Chair of Ethical Advocacy at Loyola Law School, Los Angeles. She is the author of the Federal Criminal Rules Handbook (2010). See People v. Treadway (2010) 182 Cal.App.4th 562, 106 Cal.Rptr.3d 99 (conviction reversed because the prosecution interfered with the defendant's ability to call a witness by conditioning his co-defendants' pleas on a blanket restriction not to testify, including for the defense, since this was "governmental interference violative of a defendant's compulsory-process right."); In re Martin (1987) 744 P.2d 374, 391 ("[a] defendant's right to present a defense, including, most importantly, the right to 'offer the testimony of witnesses, and to compel their attendance, if necessary,' is at the very heart of our criminal justice system."). Federal law is consistent. United States v. Henricksen, 564 F.2d 197, 198 (5th Cir. 1977)(per curiam)( it is a constitutional violation for a prosecutor to condition a plea agreement on a co-defendant's promise not to testify regarding a co-defendant: an agreement that interferes "with a defense witness's free and unhampered choice to testify violates due process."); United States v. Vavages, 151 F.3d 1185, 1191 (9th Cir. 1998) (it is improper for the prosecution to threaten to withdraw a plea agreement that has already been reached just because a witness agrees to testify for the defense); United States v. Morrison, 535 F.2d 23 (3d Cir. 1977) (prosecutors violate the defendant's right to present a defense if they unduly admonish potential defense witnesses about the penalties of perjury should they testify falsely); United States v. Golding, 168 F.3d 800 (4th Cir. 1999) (prosecutors violate defendant's rights if they threaten to bring additional charges against a witness if the witness gives exculpatory testimony on behalf of a defendant); United States v. Vavages, 151 F.3d 1185 (9th Cir. 1998) (prosecutors must not intimidate a witness who is willing to testify truthfully for the defense); United States v. Crawford, 707 F.2d 447 (10th Cir. 1983)(same). But see United States v. Bieganowski, 313 F.3d 264 (5th Cir. 2002) (prosecutors do not cross the line merely by informing a potential witness of the consequences of perjury). Prosecutors must not fail to ensure law enforcement officials do not intimidate defense witnesses. State v. Mackey, 293 S.E.2d 617 (N.C. 1982) (police detective's threats caused defense alibi witness to repudiate his earlier testimony exonerating the defendant); United States v. Hammond, 598 F.2d 1008 (5th Cir. 1979); Webb v. Texas, 409 U.S. 95, 97 " 98 (1972) (per curiam)(trial judge's " 'lengthy and intimidating warning' and 'threatening remarks' effectively caused the defendant's only witness not to testify" and, therefore, violated the defendant's constitutional rights); United States v. Serrano, 406 F.3d 1208, 1216 (10th Cir. 2005) (reviewing courts will examine the extent to which "the government actor actively discourage[d] a witness from testifying through threats of prosecution, intimidation, or coercive badgering."); United States v. Smith,997 F.2d 674, 680 (10th Cir. 1993) (Belot, J. concurring) (prosecutors and courts can ensure that their warnings are not viewed as unconstitutional coercion by allowing the defense witness to consult an independent attorney before deciding whether to testify); In re Martin, 744 P.2d 374 (Calif. Ct. App. 1987)(new trial granted, because the prosecution had the defense's first witness arrested outside the courtroom, in the presence of a news reporter, immediately after testifying so that other potential defense witnesses would know about the arrest, and other witnesses thereafter refused to testify). Prosecutors may also unreasonably deny immunity to defense witnesses, while granting it to prosecution witnesses. Williams v. Woodford, 384 F.3d 567, 600 (9th Cir. 2004) ("the prosecution's refusal to grant use immunity to a defense witness denies the defendant a fair trial only when (1) the witness's testimony would have been relevant, and (2) the prosecution refused to grant the witness use immunity with the deliberate intention of distorting the fact-finding process."); United States v. Straub, 538 F.3d 1147, 1156"1162 (9th Cir. 2008) (finding prosecution's refusal to grant immunity to defense witness who could have contradicted prosecution's immunized witness was grounds for reversal).