The Brady case: the prosecutor must disclose exculpatory evidence

In a case called Brady, the Supreme Court held that the due process clause obligates the prosecution to disclose to the defense any material evidence favorable on the issues of guilt or punishment. Evidence is exculpatory if it tends to disprove your guilt, whether by:

• Showing your innocence.
• Undermining the credibility of government witnesses.
• Tending to mitigate the punishment.

This obligation (referred to as a Brady obligation) extends beyond searching the prosecutor’s own file to producing information possessed by police agencies which participated in the investigation or prosecution. The prosecution team will be charged with knowledge of a police officer’s criminality where the officer was part of the team, even if the officer concealed that criminal conduct from the prosecutor.

Arguing that the evidence is material

The materiality requirement is a constant obstacle to criminal defense attorneys in obtaining Brady disclosures. Evidence “is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome would have been different.” Most prosecutors, having filed charges and thus concluded that you are guilty, have difficulty seeing a probability that a piece of evidence will change the outcome. There are two arguments that your criminal defense attorney can use to approach the prosecutor’s mindset:

• The pre-trial context requires the prosecutor to err on the side of disclosure. The Supreme Court created the Brady standard of materiality in the context of appeals, evaluating the significance of the evidence against the totality of the trial evidence. No one can make this evaluation before trial. The prosecutor cannot predict with certainty how his own evidence will go in, much less the defense side of the case, and what impact the undisclosed evidence will have on the case as a whole. Therefore, a prosecutor should err on the side of disclosure.
• Educate the prosecutor about the defense. Your attorney can educate the prosecutor about the defense so that he understands how a piece of evidence fits into an attack on his case. Although this approach risks surrendering the element of surprise, most defenses are apparent to any intelligent prosecutor. Most Brady inquiries seek information about the prosecutor’s own evidence and witnesses, such as cooperating witnesses’ uncharged misconduct, their initial exculpation of the defendant, or their lies to the prosecutor about their own culpability. In the usual case, you and your attorney lack any access to those witnesses and information. Therefore, you lose little by revealing to the prosecutor that you have heard that such information exists about the prosecutor’s own witnesses.

Demanding Brady material

Under the federal Brady standard, the same test of materiality applies whether the defense made a general, a specific, or even no request. However, some states have held that under their state constitutions a specific Brady demand triggers a less demanding standard of materiality. Nonetheless, in any jurisdiction your attorney might combine comprehensive Brady demands with more specific ones. The more specific the demand, the more likely you are to get relief from the prosecutor, the trial court, or an appellate court. Prosecutors often may not realize how a particular piece of evidence might fit into a defense. With a general demand a trial court will accept the prosecutor’s assurance that he has searched his file and found nothing exculpatory. However, when ruling on a specific request, the court may demand that the prosecutor answer whether or not he looked for and found that particular item.

Timing of Brady disclosures

Prosecutors frequently resist early disclosure of Brady impeaching material on the grounds that statutes forbid a court from ordering disclosure of a witness’s statements prior to trial. However, a number of courts have ruled that such statutes do not control the timing of Brady disclosures. If the material is exculpatory, it must be disclosed sufficiently in advance of trial to be useful to the defense, and the trial court may order prompt pre-trial disclosure.

Rules of Professional Conduct

The American Bar Association’s Standing Committee on Ethics and Professional Responsibility recently clarified that a Rule of Professional Conduct imposes duties on prosecutors far beyond the constitutional minimum. In particular:

• A prosecutor must disclose any information favorable to the defense without regard to its impact or the prosecutor’s assessment of its credibility. “Nothing in the rule suggests a de minimis exception to the prosecutor’s disclosure duty where, for example, the prosecutor believes that the information has only a minimal tendency to negate the defendant’s guilt, or that the favorable evidence is highly unreliable.”
• The ethical duty extends beyond admissible evidence to information that may lead to exculpatory evidence.
• Evidence is exculpatory and must be disclosed if it supports any defense, whether or not one of factual innocence, and if it merely lessens the degree of guilt.
• The disclosure must be early and full enough to enable the defendant to conduct a thorough investigation and to evaluate whether or not to plead guilty.
• Supervisory prosecutors must supervise and train their line assistants in this obligation, including ordering subordinates to commit to writing favorable information conveyed orally and implementing procedures so that prosecutors communicate favorable information to the colleague responsible for disclosure.

Similarly, the U.S. Department of Justice promulgated Brady policies that mandate procedures beyond the constitutional minimum:

• Prosecutors must conduct a thorough search of investigative agency case files, informant files, and, in some situations, the files of civil regulatory agencies, to discover and preserve information favorable to the defense.
• Prosecutors and agents have an obligation to memorialize all witness interviews (rather than, as is common, create a summary report at the end of several interviews).
• Information that “is inconsistent with any element of any crime charged against the defendant or that establishes a recognized affirmative defense” or that “casts a substantial doubt upon the accuracy of any evidence . . . or might have a significant bearing on the admissibility of prosecution evidence” must be disclosed “regardless of whether the prosecutor believes such information will make the difference between conviction and acquittal . . .”
• The disclosure obligation extends to “information” regardless of whether it is admissible evidence.
• The information must be disclosed “reasonably promptly after it is discovered.”

A production order allows sanctions

Your criminal defense attorney may ask the court to enter an order that the prosecutor produce all Brady material by a certain time. An order for pre-trial disclosure empowers the trial court to impose sterner sanctions than it can for tardy disclosure of Brady material where no order compelled its pre-trial disclosure. Sanctions may include continuances, preclusion of evidence, mistrials and new trials. A dismissal without prejudice is appropriate only in the case of willful prosecutorial misconduct and severe prejudice to the defense that cannot otherwise be remedied.