A study conducted by the National Association for Criminal Defense Lawyers found that, over a five-year period, prosecutors had withheld evidence that defense lawyers could have used to benefit their case had they known about it. The study examined 210 cases over a five year period. In one case that was analyzed, a federal appeals court affirmed the capital conviction and sentence of William Payton for a 1980 rape and murder in Orange County, even though the court found that the prosecutors concealed evidence that a key witness had acted as a government agent, an allegation he had denied on the witness stand. Since Payton's appeal was denied on grounds related to the secreting of evidence, Payton now has to rely on a more general argument - that relating to the general challenge to the use of lethal injection in California. Another appeals court overlooked a Tennessee prosecutor's withholding of information about self-destructive behavior of murder defendant Abu Abdur'Rahman, which defense lawyers could have used to convince the jury during the penalty phase of his capital case that his life should have been spared.

There are too many instances where prosecutors are withholding evidence and getting away with it. If defense attorneys would have knowledge of this evidence, it often can benefit their case significantly and potentially spare someone's life. For the federal courts to be aware of withheld evidence and not overturn verdicts which are potentially affected by withheld evidence is grossly unfair and unjust. As for the prosecutors, there is no justification for withholding evidence when the life or the freedom of the accused is on the line; this is a horrendous example of unethical behavior which should not only be brought to the attention of the State Bar on the issue of unethical conduct, but should also be seriously considered for criminal prosecution of the district attorney involved.