The landmark decision Brady v. Maryland was handed down by the U.S. Supreme Court in 1963. The decision held that, under the Fifth and Fourteenth amendments, a prosecutor has a duty to disclose favorable evidence to defendants upon request, if the evidence is “material” to either guilt or punishment. Failure to comply with this duty has become commonly known as a “Brady violation.”
The Supreme Court in 2006 succinctly answered this question in Youngblood v. West Virginia:
“A Brady violation occurs when the government fails to disclose evidence materially favorable to the accused. 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 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.’”
Over the next 50 years, the Supreme Court revisited Brady in twelve major decisions including Youngblood. Those cases are listed below:
The American Bar Association has instructed that a Brady violation has three elements: 1) the information must be favorable to the accused; 2) the information must have been suppressed by the government either willfully or inadvertently; and 3) prejudice must have ensued sufficient to undermine confidence in the verdict.
The first element has three components the courts must resolve. First, whether the information was “exculpatory” or “impeachment.” The ABA says there is “no meaningful distinction” between the two. Second, whether the alleged violation involves “Brady material” or “Brady information.” Brady material generally refers to documents and tangible things while Brady information could mean statements by a witness that is not recorded. Because prosecutors sometimes seek to avoid Brady obligations by not memorializing favorable information in writing, the ABA instructs that judges, lawyers, and law enforcement should use the term “Brady information” instead of “Brady material.” C) “Favorable evidence” is not confined to admissible evidence. Brady information can be favorable if it could reasonably lead to admissible evidence.
The second element focuses on the term “suppression”—a term the ABA says is “broad.” The ABA defines the term like this: “If the government had the favorable evidence and did not provide it, it has been ‘suppressed.’ It does not matter why the information was not disclosed.”
The third element—prejudice undermining the verdict—is the most difficult element to satisfy. The first component of this element, is that “a defendant need not have requested the information to argue that its suppression caused prejudice,” says the ABA. The second component is probably the most significant—that the materiality test does not equate to either a sufficiency of evidence” or a “harmless error” test. The court should not look beyond the suppressed evidence to find there was other sufficient evidence to convict, nor should the court indulge the notion that it was “more likely than not” that the verdict would not have been any different even if the Brady information had been disclosed. The only question the court should decide, as the ABA says, is this: Has “confidence in the outcome” of the trial been undermined? That question can only be answered through a “detailed analysis of the factual record.”
As a caveat here, it should be noted that the Supreme Court in 1984 with California v. Trombetta held that the government has a limited duty to preserve evidence. Due process requires preservation of evidence “that might be expected to play a significant role in the suspect’s defense.” There are two components to this limited duty to preserve: A) the evidence must “possess an exculpatory value that was apparent before the evidence was destroyed;” and B) the evidence must “be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”
Four years later the Supreme Court in Youngblood v. Arizona further clarified the prosecution’s limited duty to preserve by saying that in cases where the evidence is only “potentially” exculpatory, then there is no due process violation “unless a defendant can show bad faith on the part of the police …”
That’s why criminal defense attorneys should immediately after representation begins start the discovery process. This is relatively simple in federal courts because in addition to a constitutional duty to disclose Brady information to the defendant, the government is required by Rules 12.1, 16, and 26.2 of the Federal Rules of Criminal Procedure to disclose other information upon request by the defendant.
Rule 16 in pretrial discovery requires the government to disclose the following six types of information:
Rule 16 permits inspection and copying of certain documents and objects if these items are 1) material to the defendant’s case, 2) the government intends to use the items in its case-in-chief, or 3) the items are owned by or obtained from the defendant.
Rule 26.2 deals with the production of witness statements and Jencks Act material. This rule allows that after a government witness has testified on direct examination, the defendant may discover that witness’s pretrial statements under two circumstances: 1) the statements are in the government’s possession, and 2) the statements relate to the subject matter of the witness’s trial testimony.
With respect to Jencks Act statements, the court must determine either the existence or non-existence of such statements only after the defendant has made a timely request that is sufficiently precise in identifying the statements being sought. Rule 26.2 does not entertain requests for Jencks Act statements that are overly broad or that are made before a witness testifies, although the trial court does have the discretion to order production of such statements before the witness testifies.
Discovery is a key pretrial process. Criminal defense attorneys must know, and understand, both the constitutional and statutory duties of the government to disclose. It is best to remember this advice from the National Association of Criminal Defense Lawyers concerning discovery in criminal cases:
“… in criminal cases, when personal liberty and sometimes life itself are at stake, citizens are left to chance regarding the jurisdiction in which they are charged and whether they are allowed access to the evidence in the possession of the prosecution before going to trial. And although there remains the constitutional protection afforded by Brady v. Maryland and its progeny, one need only review reports from organizations such as the Innocence Project and the Northern California Innocence Project to understand that Brady violations remain a systemic problem within the American criminal justice system. A study by the North California Innocence Project of Santa Clara University School of law, found Brady violations to be ‘among the most pervasive forms of prosecutorial misconduct.’”
The take away from this is simple: never take for granted that the prosecutor you are dealing with is playing by the rules.
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