Brady disclosure

Brady disclosure consists of exculpatory or impeaching information and evidence that is material to the guilt or innocence or to the punishment of a defendant. The term comes from the U.S. Supreme Court case, Brady v. Maryland,^[1] in which the Supreme Court ruled that suppression by the prosecution of evidence favorable to a defendant who has requested it violates due process. Following Brady, the prosecutor must disclose evidence or information that would prove the innocence of the defendant or would enable the defense to more effectively impeach the credibility of government witnesses. Evidence that would serve to reduce the defendant's sentence must also be disclosed by the prosecution.

Examples

Examples include the following.

• The prosecutor must disclose an agreement not to prosecute a witness in exchange for the witness's testimony.^[2]
• The prosecutor must disclose leniency (or preferential treatment) agreements made with witnesses in exchange for testimony.^[3]
• The prosecutor must disclose exculpatory evidence known only to the police. That is, the prosecutor has a duty to reach out to the police and establish regular procedures by which the police must inform him of anything that tends to prove the innocence of the defendant.^[4] Not all exculpatory evidence is required to be disclosed by Brady and its progeny; only evidence that is "material to guilt or punishment, with "material" evidence being defined as such as to create a reasonable probability that disclosure of the evidence would have changed the outcome of the proceeding. ^[5] However, the prosecutor is not obligated to personally review police files in search of exculpatory information when the defendant asks for it.^[6] The Supreme Court observed in Strickler v. Greene, "Thus the term 'Brady violation' is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence - that is, to any suppression of so-called 'Brady material' - although strictly speaking, there is never a real 'Brady violation' unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict."^[7][8]
• The prosecutor must disclose arrest photographs of the defendant when those photos do not match the victim's description.^[9]
• Some state systems have expansively defined Brady material to include many other items, including for example any documents which might reflect negatively on a witness's credibility.^[10]
• Police officers who have been dishonest are sometimes referred to as "Brady cops." Because of the Brady ruling, prosecutors are required to notify defendants and their attorneys whenever a law enforcement official involved in their case has a sustained record for knowingly lying in an official capacity.^[11]

Procedures for compliance

• In order to ensure compliance with Brady, the United States Supreme Court repeatedly urged the "careful prosecutor" to favor disclosure over concealment.^[12] Comformity with Brady is a continuing obligation of prosecutors. Some prosecuting attorney offices have adopted and created specialized procedure and bureaus to meet their burden.^[13]
• Pitchess v. Superior Court^[14] is the source for a "Pitchess motion". Such a motion can be made by a criminal defendant to discover complaints made against a police officer, and the investigation of those complaints, such that they are contained in the officer’s personnel records. The motions can be made in a California Superior Court under California Evidence Code 1043-1046.^[15] Notwithstanding the broad nature of the discovery that the associated court rule and statute provide, getting actual records is problematic. In California, there is a carefully prescribed procedure governing such request, and making disclosure without an order is a crime. The statutory scheme was developed, in part, because law enforcement departments had developed a practice of purging their files concerning misconduct claims made against their officers.^[16]

See also

• Jencks Act
• Jencks v. United States
• Giglio v. United States
• Testilying

References

1. 373 U.S. 83 (1963)
2. Giglio v. United States, 405 U.S. 150 (1972).
3. U.S. v. Sudikoff, 36 F.Supp. 2d 1196 (C.D. Cal. 1999); State v. Lindsey, 621 So. 2d 618 (La. Ct. App. 1993).
4. Kyles v. Whitley, 514 U.S. 419 (1995).
5. Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
6. U.S. v. Herring, 83 F.3d 1120 (9th Cir. 1996).
7. Strickler, 527 U.S. at 281.
8. Bonner, "The Inquisition by Special Prosecutor in United States v. Senator Ted Stevens: of Brady, Contempt, and the Forensic Trifecta", Vol. 51, No. 1 Criminal Law Bulletin 69-125 (Thompson Reuters 2015).
9. Commonwealth v. Tucceri, 412 Mass. 401 (1992).
10. Hooper, Laural L.; Marsh, Jennifer E.; and Yeh, Brian. Treatment of Brady v. Maryland Material in United States District and State Courts’ Rules, Orders, and Policies: Report to the Advisory Committee on Criminal Rules of the Judicial Conference of the United States, Federal Judicial Center, October 2004.
11. Kamb, Lewis; Nalder, Eric (January 29, 2008). "Cops who lie don't always lose jobs". Seattle Post-Intelligencer. Retrieved January 2, 2013.
12. Kyles v. Whitley, 514 U.S. 419, 440; United States. v. Agurs, 427 U.S. 97, 110.
13. "Special Directive 02-08 Brady Protocol". Los Angeles County District Attorney. December 7, 2002. Retrieved April 7, 2014.
14. Pitchess v. Superior Court, 11 Cal.3d 531 (1974)
15. Cal. Evid. Code §§ 1043-1046
16. Steering, Jerry L. "Brady List and Pitchess Motions". Retrieved April 7, 2014.

Further reading

• Gershman, Bennett L. (January 1, 2006). "Reflections on Brady v. Maryland". South Texas Law Review (Pace University School of Law) 47: 685.
• Levenson, Laurie L. "Discovery From the Trenches: The Future of Brady". UCLA Law Review Discovery 60: 74. Retrieved April 8, 2014.
• Special Litigation Division (January 2012). "Brady v. Maryland Outline" (PDF). The Public Defender Service for the District of Columbia. Retrieved April 8, 2014.
• "Successful Brady/Napue Cases" (PDF). Habeas Assistance and Training 09/09. Capital Defense Network. September 27, 2009. Retrieved January 2, 2013.