Brady - Generally

United States v. Ruiz, 536 U.S. 622 (2002)

The government may implement a policy of permitting a defendant to enter a “fast-track” guilty plea, and receiving a downward departure, with the understanding that he will not receive any information from the government that could be used to impeach witnesses or support an affirmative defense. The defendant is not required to accept this offer, but there is nothing unconstitutional about making such an offer to the defendant, and conditioning the entry of a guilty plea and receiving a downward departure on waiving the right to receive such Giglio information.

Kyles v. Whitley, 514 U.S. 419 (1995)

In the Court’s most sweeping (and favorable) Brady decision in decades, the Court reverses this murder conviction on the basis of withheld information which was material to the issue of guilt or innocence. Along the way, the Court reviews a number of issues relating to materiality, including: (1) A showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in acquittal; rather, all that need be shown is a “reasonable probability” of a different result. In other words, “The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A reasonable probability of a different result is accordingly shown when the government’s evidentiary suppression ‘undermines confidence in the outcome of the trial.’” (2) The question is not whether all the evidence, including the withheld evidence would result in sufficient evidence to convict, or not. The possibility of an acquittal on a criminal charge does not imply an insufficient evidentiary basis to convict. The question is whether the excluded evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. (3) Once a showing of constitutional error has been made, there is no need for a “harmless error” analysis. By definition, if the excluded evidence was material under the tests above, the Brady violation could not be harmless. (4) In reviewing the materiality of the withheld evidence, it should be considered cumulatively, not in isolation, item-by-item. (5) It is no excuse that information is known to the police, and withheld from the prosecutor. The prosecutor should adopt procedures which ensure that information known to the police is conveyed to the prosecutor. In concluding, the Court notes that when faced with a tough question whether to disclose or not, the prosecutor should disclose: “This is as it should be. Such disclosure will serve to justify trust in the prosecutor as the representative of a sovereignty whose interest in a criminal prosecution is not that it shall win a case, but that justice shall be done. And it will tend to preserve the criminal trial, as distinct from the prosecutor’s private deliberations, as the chosen forum for ascertaining the truth about criminal accusations.”

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

The United States Supreme Court was confronted with the question of whether a welfare department could withhold its files in this child molestation case. In a lengthy opinion, Justice Powell reviews the various means by which this information could be disclosed to the defendant,including subpoena power and the due process requirement that exculpatory evidence be disclosed to the defendant. Though the decision does not give hard and fast rules, it is a favorable decision insofar as it holds that a child welfare agency’s files must be produced to the defendant as Brady information if it contains exculpatory information. That is, the important aspect of this case is the holding that the welfare department is, in effect, an arm of the prosecution and thus under the duty to disclose exculpatory information.

Amado v. Gonzalez, 758 F.3d 1119 (9th Cir. 2014)

The state’s failure to reveal impeaching evidence about a key prosecution witness was a Brady violation that necessitated setting aside the murder conviction in this case. The witness actually balked at testifying at trial, so his earlier statement to the police was read by the officer who interviewed the witness. The prosecution failed to reveal that the witness was on probation for a robbery offense and that he was a member of a rival gang at the time he made the statement to the police. The state appellate court rejected the Brady claim on the basis that the trial attorney could have found the information and thus it was not “withheld” by the prosecution. The Ninth Circuit held that the defendant does not have the duty to seek exculpatory or impeaching information; the prosecution has the duty to produce it. There is no “due diligence” requirement imposed on the defense when it comes to Brady or Giglio information. In addition, citing Kyles v. Whitley, the court held that the prosecutor had a duty to locate and reveal this information, even if it was not literally in the prosecutor’s file: “[b]ecause the prosecution is in a unique position to obtain information known to other agents of the government, it may not be excused from disclosing what it does not know but could have learned.”

United States v. Olsen, 737 F.3d 625 (9th Cir. 2013)

Judge Kozinski’s dissent to the denial of en banc review is full of outrage about the epidemic proportions that Brady violations have reached, citing scores of cases from around the country in both state and federal courts. This case involved the failure to disclose a pending investigation into the incompetence of a laboratory analysis upon whose conclusions the conviction in this case was based.

Munchinski v. Wilson, 694 F.3d 308 (3rd Cir. 2012)

The Third Circuit described the Brady violations in this case as staggering and the lower court described the events as “extraordinary.” Police reports were intentionally redacted by state court prosecutors to eliminate references to recorded statements of witnesses; alternative suspects were not revealed and witness statements that implicated alternative suspects were never disclosed. Significant portions of an autopsy report were not revealed. An offer of leniency to the state’s key witness were not revealed and the prosecutor, in closing argument, expressly denied that any motive existed for the witness to testify for the prosecution. The Third Circuit concluded that there was clear and convincing evidence of actual innocence and that a successive habeas petition would be permitted and granted.

United States v. King, 628 F.3d 693 (4th Cir. 2011)

Generally, Brady violations are discovered post-trial and the existence and scope of the excupaltory information that was not revealed is known. Occasionally, however, the existence of exculpatory information is not known with certainty, but its location is “probable.” In thatsituation, the defendant should request that the trial court conduct an in camera inspection of the material to determine whether exculpatory information is contained therein. That would include records of social service agencies and, as in this case, grand jury testimony. A sufficient showing was made in this case to require a remand to review the grand jury testimony of one witness.

Arnold v. Secretary, Dept of Corrections, 595 F.3d 1324 (11th Cir. 2010), adopting district court decision 622 F.Supp.2d 1294 (M.D.Fla. 2009)

The police detective who was the lead investigator in this case had committed crimes that were clearly discoverable pursuant to Brady. However, only the detective and not the prosecutor knew about the detective’s crimes. The Eleventh Circuit held that this information was required to be furnished to the defense, because the detective was part of the prosecution team, and any information known to any member of the prosecution team must be disclosed.

United States v. Salem, 578 F.3d 682 (7th Cir. 2009)

Prior to trial, the government was aware that there was information that its star witness was involved in a murder. There was no plea agreement, or any other kind of agreement in place to protect the witness; nevertheless, this information should have been furnished to the defendant prior to his trial. However, further development of the record was necessary in order to determine if the defendant was entitled to a new trial.

United States v. Robinson, 583 F.3d 1265 (10th Cir. 2009)

The trial court erred in barring the defense from reviewing the mental health records of the key eyewitness in this case. The parties and the lower court knew that the defendant had just been released from a mental health facility prior to his testimony, but the defense was barred from reviewing the records. The trial court also erred in barring the defense from cross-examining the witness about his mental health infirmity and use of drugs. Among the cases relied upon by the Tenth Circuit were United States v. Lindstrom, 698 F.2d 1154 (11th Cir. 1983) and Greene v. Wainwright, 634 F.2d 272 (5th Cir. 1981).

United States v. Price, 566 F.3d 900 (9th Cir. 2009)

The AUSA who tried this case involving possession of a firearm by a convicted felon presumably did not know about his star witness’s repeated run-ins with local police officers, including numerous arrests and convictions for petty theft, and motor vehicle offenses involving dishonesty (false registration stickers). The Ninth Circuit holds that the witness’s criminal record was constructively known to the AUSA, because it was known to the law enforcement officers with whom he worked in this case: the local police officers who had access to the computers that contained the witness’s lengthy arrest and conviction records.

United States v. Burke, 571 F.3d 1048 (10th Cir. 2009)

The notion that there is automatically no Brady violation if the information is disclosed during trial is false. The question regarding the remedy for late disclosure of Brady must be determined on a case-by-case basis. Late disclosure – even during trial – could have an impact on pretrial strategy, including what defenses to investigate and pursue. The question is whetherthe defendant was prejudiced and that cannot be determined based on a rule that immutably excuses tardiness that is remedied at the time of trial. It may be too late by then.

Steidl v. Fermon, 494 F.3d 623 (7th Cir. 2007)

After the defendant was convicted and while his case was proceeding through post-conviction proceedings, the police became aware of information that substantially undermined the reliability of the verdict. The defendant was ultimately released when it was discovered that he was falsely convicted. In this civil case, he sued the police for withholding the information. The Seventh Circuit held that the police had a continuing duty under Brady to reveal the exculpatory information to the defendant during post-conviction proceedings.

United States v. Duval, 496 F.3d 64 (1st Cir. 2007)

The First Circuit criticized the government’s delayed disclosure of impeaching and exculpatory information and noted especially the agent’s apparent failure to take notes when interviewing witnesses if the witness did not make statements that were consistent with the theory of guilt (thus, turning over the agents’ reports did not fully reveal the extent of Brady information known to the agents). Harmless error.

United States v. Rodriguez, 496 F.3d 221 (2d Cir. 2007)

The government does not relieve itself of its Brady obligation by simply not taking notes of interviews with witnesses who provide information that is exculpatory. In this case, while being questioned by the government, a cooperating witness was asked (and responded affirmatively) that everything he said during his first interview with the agents was a complete lie. The defense requested information about that interview. The agents explained that no notes were taken of the interview. The Second Circuit held that a remand was required to determine exactly what the lies were and whether the lies were material to the testimony of the witness.

United States v. White, 492 F.3d 380 (6th Cir. 2007)

In this complex white collar fraud case, it became apparent post-trial that certain documents were not revealed to the defense prior to trial that might amount to Brady information. The appellate court remanded the case to the district court for a fuller evaluation of the information and to conduct an evidentiary hearing on the post-trial Brady claim. In response to the government’s claim that the defendants were on a fishing expedition, the appellate court responded that “the fish swim just below the surface of the pond and for reasons squarely within the government’s control, the waters run cloudy, rendering the defendants unable to discern the nature of the fish.”

United States v. Velarde, 485 F.3d 553 (10th Cir. 2007)

Post-trial, in preparation for a new trial motion, the trial court should have empowered the defendant to subpoena records relating to the government’s chief witness, whose prior inconsistent statements (or prior false accusations directed at others) were not disclosed to the defense prior to trial.

Ferrara v. United States, 456 F.3d 278 (1st Cir. 2006)

Twelve years ago, the defendant entered a guilty plea to a RICO case that charged various predicate offenses, including murder. A key witness for the government provided a statement implicating the defendant in one of the charged murders. Later, however, he recanted and told the AUSA and the case agents that the defendant was not involved in the murder. The AUSA and agents met once again with the witness and he recanted his recantation. The witness’s recantation was never provided to the defense, despite Brady obligations that were ongoing pursuant to the Constitution and Local Rules. The defendant entered a guilty plea, though during the plea colloquy, he never admitted participation in the murder. Years later, the witness’s recantation was revealed. The District Court granted § 2255 relief. The First Circuit affirmed, concluding that the government’s conduct amounted to a violation of Brady and amounted to gross governmental misconduct.

United States v. Risha, 445 F.3d 298 (3rd Cir. 2006)

The defendant claimed that information known to state authorities was improperly withheld from him prior to his federal trial and that this information was exculpatory. The Third Circuit set forth the factors to be considered when determining whether such information should have been disclosed, even assuming it was not actually known by the federal prosecutor. (1) Were investigative agents working in tandem? (2) Was there a joint investigation? (3) Was the information readily available to the federal prosecutor? The Third Circuit decided to remand the case to the district court for further consideration of these factors.

United States v. Blanco, 392 F.3d 382 (9th Cir. 2004)

The government’s failure to reveal that an informant had an ongoing relationship with the INS (in addition to the disclosed relationship with DEA) and that he had been given a “special parole visa” enabling him to remain in the U.S. was error that necessitated a remand for consideration of an appropriate remedy. The record in this case demonstrated that, at least to some extent, the DEA was intentionally withholding information from the AUSA. This, of course, is no defense to a Brady violation. The duty under Brady extends to the DEA and any other law enforcement agency involved in the prosecution of the defendant.

United States v. Sipe, 388 F.3d 471 (5th Cir. 2004)

The government’s failure to reveal that one of the government witnesses told the government that he “disliked” the defendant; as well as the “benefits” granted to numerous other government witnesses, amounted to a Brady violation that required setting aside the conviction. The Fifth Circuit noted that evidence of guilt was “significant,” but that the withheld evidence, when considered in the totality, undermined confidence in the verdict.

United States v. Avellino, 136 F.3d 249 (1998)

A Brady violation may taint a guilty plea, though the information that was not disclosed in this case was not deemed to be material. The court noted that if there was a Brady violation, a motion to withdraw a guilty plea must be granted – the court need not evaluate prejudice to the government.

United States v. Pelullo, 105 F.3d 117 (3rd Cir. 1997)

Rough notes of law enforcement interviews of witnesses contained Brady information that was not disclosed to the defense prior to his first trial. The conviction in that trial was tainted by this Brady violation. Two more trials followed that initial trial. In the last trial, the defendant’s testimony from the first trial was introduced. The defendant claimed that but-for the Brady violation, he would not have testified at the first trial. See Harrison v. United States, 392 U.S. 219 (1968). This was a valid argument, but required additional fact-finding by the lower court.

United States v. Tincher, 907 F.2d 600 (6th Cir. 1990)

Despite the defendant’s request for Jencks or Brady material, the government failed to disclose material which clearly fell within the scope of both requests. The prosecutor failed to disclose grand jury testimony of the agent who was testifying against the defendant. In light of the deliberate misrepresentation of the prosecutor, the conviction was reversed.

Miller v. Vasquez, 868 F.2d 1116 (9th Cir. 1989)

A police officer’s bad faith failure to collect evidence at the scene of a crime may constitute a Brady violation. A hearing is necessary to determine whether the failure to collect potential exculpatory evidence is a result of an investigator’s bad faith. In this case, the law enforcement officer failed to collect and analyze the blood stained jacket of the victim after interviewing her at her apartment less than twenty-four hours after the attack.

United States v. Brooks, 966 F.2d 1500 (D.C.Cir. 1992)

The prosecutor has the duty not only to turn over favorable evidence, but also in certain circumstances, to actually search for information which may be exculpatory, including searching files of other agencies. In this case, the testimony of the investigating officer from the defendant’s first trial was read at the second trial. Between the first and the second trial, the officer was shot and killed with her own service revolver in the presence of another officer. The AUSA should have searched the files of the Metropolitan D.C. Police files to determine if there was anything in those files relating to the officer’s death which would have cast doubt on her credibility. The court reviewed precedents from several other Circuits dealing with the duty of the AUSA to engage in a search for exculpatory evidence in certain circumstances. See, e.g., United States v. Auten, 632 F.2d 478 (5th Cir. 1980); United States v. Deutsch, 475 F.2d 55 (5th Cir. 1973); United States v. Perdomo, 929 F.2d 967 (3rd Cir. 1991); Carey v. Duckworth, 738 F.2d 875 (7th Cir. 1984).