NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 3: Capital Punishment Handbook: Guilt Phase Issues

        3.2  Prosecutor’s Duty to Disclose Exculpatory Evidence; Knowing Presentation of False Evidence

In Kyles v. Whitley, 514 U.S. 419 (1995), the Supreme Court held that if the state fails to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), the conviction cannot stand if there is a reasonable probability that the evidence, considered cumulatively, would have produced a different result at trial. The Court in Kyles also held that once a habeas petitioner establishes the “reasonable probability” of a different result, the error cannot subsequently be found harmless under Brecht. Kyles, 514 U.S. at 436.

Banks v. Dretke, 540 U.S. 668 (2004) (holding in capital case that the state’s suppression of evidence of witness’s informant status constituted “cause” for petitioner’s failure to present such evidence in support of Brady claim at state postconviction proceeding where petitioner had reasonably relied on prosecution’s pretrial promise to disclose all Brady material and state had denied that witness was informant).

Strickler v. Greene, 527 U.S. 263 (1999) (applying Kyles standard and finding petitioner failed to show a reasonable probability that capital conviction and sentence would have been different if non-disclosed exculpatory evidence were available at trial.)

Kyles v. Whitley, 514 U.S. 419 (1995) (holding conviction cannot stand if net effect of state-withheld exculpatory evidence raises reasonable probability that disclosure would have produced different result at trial).

Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005) (en banc) (holding under pre-AEDPA law, that the prosecutor’s knowing presentation of false evidence and failure to correct the record regarding the dismissal of charges against a witness violated capital habeas petitioner’s due process rights even where the witness was unaware of the agreement to dismiss the charges and thus did not commit perjury; remanding for the district court to grant the habeas writ, the court also held that (1) the application of the constitutional prohibition against the knowing presentation of false evidence, as distinguished from the prohibition against suborning perjury, was not barred under Teague v. Lane, 489 U.S. 288 (1989), because this rule was not “new”; and (2) the false testimony was “material” because there was a reasonable likelihood that it could have affected the judgment of the jury, and there was no need for a separate harmless error analysis under Brecht v. Abrahamson, 507 U.S. 619 (1993)).

Karis v. Calderon, 283 F.3d 1117 (9th Cir. 2002) (holding that even if testimony of prosecution witness was manipulated, to be entitled to relief on ground of prosecutorial misconduct petitioner would need to show a “reasonable likelihood that the false testimony could have affected the judgment of the jury”), cert. denied, 539 U.S. 958 (2003).

Killian v. Poole, 282 F.3d 1204 (9th Cir. 2002) (quoting Strickland as to standard of prejudice and holding in noncapital case that habeas relief was warranted for failure of prosecution to disclose evidence discrediting key prosecution witness; also holding that even if failure to disclose impeachment evidence, perjury by key prosecution witness, and prosecutor’s comments on privileged conduct were not each sufficient to justify habeas relief, cumulative effect required it), cert. denied, 537 U.S. 1179 (2003).

Paradis v. Arave, 240 F.3d 1169 (9th Cir. 2001) (finding Brady violation and granting habeas relief where state failed to disclose notes of prosecutor taken at meeting with sheriff’s officer discussing autopsy at which officer was present; nondisclosure of notes, which could have lead to discovery of admissible evidence, put defense team at substantial disadvantage).

Downs v. Hoyt, 232 F.3d 1031 (9th Cir. 2000) (finding no prosecutorial misconduct where prosecutor failed to turn over investigative materials that were discovered in the federal habeas proceeding; finding materials might have provided leads but denying habeas relief because petitioner could not show that production would have created a reasonable probability of a different result).

United States v. Cooper, 173 F.3d 1192 (9th Cir.) (stating that to show Brady error, the petitioner must show that the evidence (1) was exculpatory, (2) should have been but was not produced, and (3) was material to guilt or innocence), cert. denied, 528 U.S. 1019 (1999).

Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997) (en banc) (finding Brady violation where state failed to disclose key witness’s department of corrections’ file to defense in capital prosecution and witness’s credibility was key to case), cert. denied, 523 U.S. 1133 (1998).

Williams v. Calderon, 48 F. Supp. 2d 979 (C. D. Cal. 1998) (granting summary judgment for state where petitioner presented no evidence that state’s witness had deal in exchange for testimony and even if deal existed, petitioner failed to establish that disclosure would have resulted in different outcome).

Cynthia L. Corcoran, Prosecutors Must Disclose Exculpatory Information When the Net Effect of the Suppressed Evidence Makes It Reasonably Probable That Disclosure Would Have Produced a Different Result–Kyles v. Whitley, 26 Seton Hall L. Rev. 832 (1995) (examines application of Brady Doctrine and suggests change in standard by which petitioner could prove a Brady violation).

Ty Howton, Kyles v. Whitley: Death or Declaration?, 86 J. Crim. L. & Criminology 1461 (1996) (arguing that Supreme Court granted certiorari in Kyles not to review 5th Circuit’s “materiality” standard, but rather to consider whether innocent man was sentenced to death, and consequently confused “materiality” standard for future courts).

Joseph R. Weeks, No Wrong Without a Remedy: The Effect of the Enforcement of the Duty of Prosecutors to Disclose Exculpatory Evidence, 22 Okla. City. U. L. Rev. 833 (1997) (examines application of Brady Doctrine and suggests change in standard by which petitioner could prove a Brady violation).