MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001
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Part III. Disclosure Issues - Part III(B) Brady Material

        Part III(B)       Brady Material: General Principles
        Part III(B) 1    Materiality
        Part III(B) 2    Doubts To Be Resolved In Favor Of Disclosure
        Part III(B) 3    Evidence Bearing On Credibility Of Government Witnesses
        Part III(B) 4    Court Under No Duty To Search Files Of Prosecutor
        Part III(B) 5    Timing Of Disclosure Of Brady Material
        Part III(B) 6    Brady Applicable Only To Material Available To The Prosecution

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part III(B)    Brady Material: General Principles

CAVEAT: See Publication Preface and Caveats. 

FORECITE National™ Materials Related To This Issue:

36.1.7 Instruction For Brady Violation

36.1.1 Instruction As Sanction For Intentional Destruction Or Suppression Of Evidence By Police Or Prosecution

36.1.2 Attempted Suppression Of Evidence Or Witness Intimidation By The Police Or Prosecution

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court ruled that the suppression by the prosecution of evidence favorable to an accused, upon request for disclosure by the accused, violates due process where the evidence is material to the guilt or punishment of the accused, irrespective of the good faith or bad faith of the prosecution. The Court held in United States v. Agurs, 427 U.S. 97 (1976), that failure to disclose material and favorable evidence violates due process even when the defendant makes no request for the material.

Smith v. Secretary of N.M. Dept. of Corrections, 50 F.3d 801 (10th Cir. 1995)

The failure of law enforcement officers to preserve evidence that potentially, exculpates the defendant does not violate Brady, or the due process clause absent a showing that the officers acted in bad faith.

Arizona v. Youngblood, 488 U.S. 51 (1988) (semen specimens lost prior to testing through negligence)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats. 

Materiality is the touchstone in the determination of whether certain evidence qualifies as Brady material.

United States v. Agurs, 427 U.S. 97 (1976)
United States v. Bagley, 473 U.S. 667 (1985)
United States v. Dupuy, 760 F.2d 1492 (9th Cir. 1985)
United States v. Cortijo-Diaz, 875 F.2d 13 (1st Cir. 1989)
Barkauskas v. Lane, 878 F.2d 1031 (7th Cir. 1989)
United States v. Lindell, 881 F.2d 1313 (5th Cir. 1989)
United States v. Robinson, 39 F.3d 1115 (10th Cir. 1994)
United States v. Newton, 41 F.3d 1422 (11th Cir. 1994)
United States v. Veksler, 62 F.3d 544 (3d Cir. 1995)

Materiality is determined by considering the suppressed evidence collectively rather than item by item.

United States v. Bagley, 473 U.S. 667 (1985)
Kyles v. Whitley, 115 S. Ct. 1555 (1995)

A lower standard of materiality applies where there is prosecutorial misconduct and corruption of the truth-seeking function.

United States v. Alzate, 47 F.3d 1103 (11th Cir. 1995)

The duty to disclose Brady material is ongoing; information that may be deemed immaterial upon original examination may become material as the proceedings progress.

Pennsylvania v. Ritchie, 480 U.S. 39 (1987)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats. 

When the government is in doubt as to the exculpatory nature of material, the prosecutor either should disclose the material to the accused or should submit it to the court for the court's determination whether the material should be disclosed to the accused.

United States v. Bailleaux, 685 F.2d 1105 (9th Cir. 1982)
United States v. Starusko, 729 F.2d 256 (3d Cir. 1984)

If, following a Brady request, the government has serious doubts as to the usefulness of a particular piece of evidence to the defense, the government should resolve all doubts in favor of full disclosure.

United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats. 

If the reliability of a witness may be determinative of the guilt or innocence of the accused, Brady requires the disclosure of any evidence bearing on the credibility of that witness.

United States v. Starusko, 729 F.2d 256 (3d Cir. 1984)
United States v. Boyd, 55 F.3d 239 (7th Cir. 1995)

Impeachment evidence that would tend to undermine the credibility of an important government witness falls within the Brady rule.

Giglio v. United States, 405 U.S. 150 (1972)
United States v. Bagley, 473 U.S. 667 (1985)
Barkauskas v. Lane, 878 F.2d 1031 (7th Cir. 1989)
Wilson v. Whitley, 28 F.3d 433 (5th Cir. 1994)
United States v. Kelly, 35 F.3d 929 (4th Cir. 1994)
United States v. Duke, 50 F.3d 571 (8th Cir. 1995)
United States v. Payne, 63 F.3d 1200 (2d Cir. 1995)
United States v. Hanna, 55 F.3d 1456 (9th Cir. 1995)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats. 

Speculation that the government may possess Brady material does not require the court to direct production of government files for an in camera search by the court.

United States v. Michaels, 796 F.2d 1112 (9th Cir. 1986)

The trial court has no obligation to conduct a general Brady search of a prosecutor's files when the prosecutor has assured the court that all possibly exculpatory material has been produced.

United States v. Holmes, 722 F.2d 37 (4th Cir. 1983)

However, when the prosecutor submits material to the court for a Brady determination, the court has an obligation to examine the material in camera and determine whether disclosure to the defense is required.

Application of Storer Communications, Inc., 828 F.2d 330 (6th Cir. 1987)

Under certain circumstances the court should undertake an in camera investigation rather than accept the government's assurance that there are no Brady materials, or that contested materials are not exculpatory under Brady.

Pennsylvania v. Ritchie, 480 U.S. 39 (1987)
United States v. Gaston, 608 F.2d 607 (5th Cir. 1979)
United States v. Diaz-Munoz, 632 F.2d 1330 (5th Cir. 1980)
United States v. Leung, 40 F.3d 577 (2d Cir. 1994)

Defense counsel is not entitled to review the government's files in search of materials that arguably fall within the scope of Brady.

Pennsylvania v. Ritchie, 480 U.S. 39 (1987)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats. 

The district court may order when Brady material is to be disclosed.

United States v. Starusko, 729 F.2d 256 (3d Cir. 1984)

Some decisions have held that the Jencks Act controls and that Brady material relating to a certain witness need not be disclosed until that witness has testified on direct examination at trial.

United States v. Scott, 524 F.2d 465 (5th Cir. 1975)
United States v. Jones, 612 F.2d 453 (9th Cir. 1979)
United States v. Bencs, 28 F.3d 555 (6th Cir. 1994)

Other decisions have held that Brady material must be disclosed prior to trial, in order to afford the defendant the opportunity to make effective use of it during trial.

United States v. Pollack, 534 F.2d 964 (D.C. Cir. 1976)
United States v. Kaplan, 554 F.2d 577 (3d Cir. 1977)
United States v. Campagnuolo, 592 F.2d 852 (5th Cir. 1979)
United States v. Perez, 870 F.2d 1222 (7th Cir. 1989)

Brady information that will require defense investigation or more extensive defense preparation for trial should be disclosed at an early stage of the case.

United States v. Starusko, 729 F.2d 256 (3d Cir. 1984)

If the court declines to order the disclosure of certain material, that material should be sealed and made a part of the record on appeal.

United States v. Gaston, 608 F.2d 607 (5th Cir. 1979)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats. 

Brady material is limited to information known to the prosecutor and unknown to the defense.

United States v. Agurs, 427 U.S. 97 (1976)
Mendoza v. Miller, 779 F.2d 1287 (7th Cir. 1985)
United States v. Salerno, 868 F.2d 524 (2d Cir. 1989)
Armco v. United States EPA, 869 F.2d 975 (6th Cir. 1989)
United States v. O’Conner, 64 F.3d 355 (8th Cir. 1995)
Barnes v. Thompson, 58 F.3d 971 (4th Cir. 1995)

The prosecutor has a duty to learn of any evidence favorable to the defendant which is known to others acting on the government's behalf in the case, including the police.

Kyles v. Whitley, 115 S. Ct. 1555 (1995)
United States v. Hanna, 55 F.3d 1456 (9th Cir. 1995)
United States v. Payne, 63 F.3d 1200 (2d Cir. 1995)

The prosecutor need not search the files of the state police.

United States v. Escobar, 674 F.2d 469 (5th Cir. 1982)

The prosecutor need not seek out material that is not in the government's control.

United States v. Walker, 559 F.2d 365 (5th Cir. 1977)
United States v. Riley, 657 F.2d 1377 (8th Cir. 1981)

A prosecutor with knowledge of and access to Brady material that exists outside the borders of his or her district must disclose that material to the defense.

United States v. Bryan, 868 F.2d 1032 (9th Cir. 1989)

A prosecutor's "open file" policy is relevant and may be considered in determining whether a Brady violation occurred--but it cannot, standing alone, be given dispositive weight.

Smith v. Secretary Dept. of Corrections, 50 F.3d 801 (10th Cir. 1995)

A presentence report on a government witness is not Brady material, since presentence reports are not available to the prosecution.

United States v. Dingle, 546 F.2d 1378 (10th Cir. 1976)

The Brady right to disclosure of exculpatory evidence in the government's possession extends to evidence in possession of state agencies subject to judicial control.

Love v. Johnson, 57 F.3d 1305 (4th Cir. 1995)

Under Brady the agency that is charged with administration of a statute and that has consulted with the prosecutor in the steps leading to prosecution is to be considered as part of the prosecution in determining what information must be made available to a defendant charged with violation of the statute.

United States v. Wood, 57 F.3d 733 (9th Cir. 1995)