Brady Duty of a Prosecutor to Disclose Exculpatory and Mitigating Evidence

Bagley came out in 1985 and added to this that it’s a not a materiality test. Again, disclosure of evidence that’s just favorable, that if suppressed would deprive the defendant of a fair trial. It’s a fairness question. And so, encourage prosecutors; this isn’t from the judges, this is from my stand point. Can I put on a full defense if I don’t know this information? It doesn’t have to do with the prosecution. Look at Brady! Look at the facts in Whitley. It has to do with, what defense evidence I can throw up there to minimize the conduct, to lessen the sentence, to impeach the witness, the eye witnesses’ too. It’s just anything that just scratches and provides some sort of defense or undermines the prosecution’s case.

Not that exonerates the defendant, so Bagley makes that clear as well. And again Brady evidence is impeachment and Bagley comes right out and says that; here is where some witnesses had been paid money, as rewards and they claimed that it was expense money and it turned out it wasn’t correct and they said anything that shows a witnesses’ bias or interests is also Brady! So any kind of little dark secret or unsavory fact that the prosecution may have about their witness, they need to let you know! That’s Brady as well. And then Bagley comes right out and says if, folks don’t buy that materiality is just an appellate standard, Bagley at page 677 comes out and says that,” a finding of the materiality of the evidence is required under Brady and a new trial required if the testimony could in any reasonable likelihood have had affected the judgment of the jury” thus the court of Appeals holding is inconsistent with our precedents.

So they discussed materiality as an appellate standard of review. This will result in reversal of a case, not something that a prosecutor is supposed to act as super appellate judge and make the decision, “well I think it might affect your case” well how the heck would they know? They don’t know what your defense is. You know, they need to give you anything that will help you with their witnesses, help you with punishment, help in any aspect of the case. Anything that’s favorable at all.

At page 679, we go forward with more appellate review standards that, if the will withheld evidence leaves the jurors with a mistaken belief. In order words, it turns out to sort of be an affirmative misrepresentation and they remember it was the payment of money to witnesses that they said was expenses and it was really reward money that this is like prudery and so it’s considered material without any harm analysis review, for you appellate lawyers out there.

And in Kyles versus Whitley, they made clear when it’s not this pruderies type of withheld evidence that leaves the false impression. The question is not whether the defendant would have more likely they not received a different verdict with the evidence; it’s not like its sufficiency of the evidence review, but whether in its absence you received a fair trial. Or whether we have a verdict that’s worthy of confidence? And go through the analysis in Whitley how the Supreme Court goes through each little piece in evidence and talks about, “this wouldn’t have acquitted really” but someone might have doubted the prosecution witnesses’ testimony. Someone might have thought the prosecution witness was the killer. Some juror might have thought something about this eye witness testimony. And so, if it shakes your confidence in the verdict not there’d be a different outcome or there’s sufficient other evidence. That’s not the appellate standard so when it comes to Brady evidence it doesn’t have to be very significant. So long as it, there’s a reasonable probability which we knows from Mark Steven stair step that’s a really low standard. That undermines the confidence in the outcome of the trial. We’re not confident that a jury might have thought something different then you’ll get a reversal on that type of evidence.

And the other important point about the Kyles versus Whitley case is, I told you that none of it was very impressive evidence. It was that you know one of the court defendants had some, there was some evidence he may have participated in the offense. One of the eye witnesses had a different description and so on, the total of four. The Supreme Court made it clear, “we don’t look at one item alone. We look at, this withheld evidence accumulation. And add it all up together” because again it’s about the fairness of the trial, that you have the favorable information to present your defense and undermine the prosecution’s case and undermine their sentencing evidence and if so, then you’ll get that Brady reversal. And then once, this error is established and you’ve established that it does undermine confidence then again you don’t do harmless error analysis. So remind, prosecutors, trial prosecutors of this as well, that you know, if you get this wrong, you make these decisions wrong I’m not going to have to show harm! I’ll get a new trial. Know those facts of Brady and Bagley and Ogres and Kyles because that evidence there is not earth shattering evidence and in every case the Supreme Court found it was Brady.

Francisco Hernandez

Author Francisco Hernandez

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