Brady - Other Impeaching Evidence

Smith v. Cain, 132 S. Ct. 627 (2012)

The Supreme Court holds – in an 8-1 decision – that withholding from the defense a report that showed that the one eye-witness previously failed to identify the defendant was a Brady violation requiring that the conviction be set aside. The witness was portrayed by the state prosecutor (in New Orleans) as having consistently identified the defendant as the perpetrator of the quintuple murder, when, in fact, he had previously failed to identify the defendant.

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. Sedaghaty, 728 F.3d 885 (9th Cir. 2013)

The defendant was charged with tax violations, but the focus of the trial was on the defendant’s activities that supposedly involving funding terrorists. A key witness for the government testified about the defendant’s desire to fund the terrorists. The government failed to reveal various interview notes with this witness and the fact that the witness was offered money by the FBI and her husband was offered substantial payments by the FBI. The district court denied the post-trial Brady motion, finding that the undisclosed information was clearly Brady (both the contents of the undisclosed interview notes, as well as the financial payments that were made and offered) and important to that witness’s credibility, but that the witness’s testimony related only to the reason the tax law violations occurred (in order to fund terrorists), whereas the charges focused on the fact that tax laws were violated regardless of the underlying motivation. The Ninth Circuit reversed and ordered a new trial: throughout the trial, the government trumpeted the terrorism-related purpose for the defendant’s conduct, repeatedly referring to terrorists, Bin-Laden, and other terrorist organizations and terrorist training camps.

Browning v. Trammell, 717 F.3d 1092 (10th Cir. 2013)

The defendant was sentenced to death for killing his girlfriend’s parents. The girlfriend was a key witness for the prosecution. The state had psychiatric records relating to the girlfriend in its possession (sent to the state by the girlfriend’s lawyer) that showed that she was severelymentally ill, including suffering from magical thinking and blurring of reality and fantasy. These records were not revealed to defense counsel. The Tenth Circuit affirmed the lower court’s granting a writ of habeas corpus.

Milke v. Ryan, 711 F.3d 998 (9th Cir. 2013)

The defendant was convicted of murdering her child. The only evidence supporting the conviction was a confession given to Officer Saldate. No recording of the confession was made and the defendant denied confessing to the officer. The state failed to reveal to the defense the fact that the Officer had been found to have lied about confessions on four separate occasions; that several other confessions had been suppressed based on courts finding violations of the accused’s Fifth and Sixth Amendment rights; that he had been suspended for taking “liberties” with a female motorist that he had stopped. More information was probably also available to the prosecution about the officer, none of which was revealed to the defense. The Ninth Circuit granted a writ of habeas corpus based on the Brady violation. The lengthy opinion documents the acts of misconduct by the officer, as well as the prosecutors, some of whom were actually aware of the officer’s checkered past, and others of whom failed to reveal the information even after the conviction was being challenged in state habeas proceedings.

Johnson v. Folino, 705 F.3d 117 (3rd Cir. 2013)

The state prosecutor failed to disclose voluminous amounts of information about the state’s key witness’s involvement in other crimes that should have been revealed to the defense. Though the information did not relate to convictions, the information may have led to admissible evidence and may have been effectively used in cross examination to establish the witness’s reasons for providing information to the police.

Wolfe v. Clarke, 691 F.3d 410 (4th Cir. 2012)

The defendant was convicted of murder and given the death penalty. A principal witness at trial was a man named Barber, who was hired by Wolfe to kill the victim. When Barber was first arrested and before he implicated Wolfe in the murder, he was told by a police officer that if he implicated Wolfe, he (Barber) could avoid the death penalty. This conversation was memorialized in a police report that was never produced to the defense. This was a Brady violation that required granting the writ as to the conviction and sentence. The Fourth Circuit also held that the conviction for being involved in a drug conspiracy would also be vacated, because had the Brady information been disclosed, the defendant would likely not have testified at the trial and would not have been in the position of having to deny guilt of the murder, while admitting his role in the drug conspiracy.

Guzman v. Secretary, Dept. of Corrections, 663 F.3d 1336 (11th Cir. 2011)

A police officer testified falsely about whether any benefit had been provided to a key witness. The police denied that any benefit had been provided, but, in fact, the officer had given the witness, a crack addict, $500.00. The prosecutor was not aware of this benefit and was not aware that the officer testified falsely. Nevertheless, the knowledge (and false testimony) of the officer was attributed to the prosecutor and a new trial was ordered. This case contains a thorough review of the “materiality” standard for gauging Giglio violations post-conviction.

Sivak v. Hardison, 658 F.3d 898 (9th Cir. 2011)

The state’s failure to reveal certain benefits that the jailhouse snitch received from the prosecution (favorable parole letters) and the fact that the snitch lied as a witness about these benefits necessitated that the death sentence be set aside.

United States v. Kohring, 637 F.3d 895 (9th Cir. 2011)

The government failed to reveal to the defendant that a key prosecution witness was being investigated by state agents for child sex abuse offenses and efforts to obstruct justice in connection with those sex offenses. Though the trial court recognized that this evidence should have been disclosed, the trial court further held that the evidence would not have been admissible under Rule 403, because it would have confused the issues. The Ninth Circuit reversed. The evidence should have been disclosed and it would have been admissible to impeach the witness. This case contains a lengthy analysis of Brady violation jurisprudence, including the question when undisclosed impeaching evidence is “material” and sufficient to require a new trial. In one section of the decision, the court holds that the government’s failure to turn over investigators’ notes that revealed that the witness was having trouble remembering details of certain events was also a material Brady violation. In addition, emails between members of the prosecution team that might otherwise qualify as work product should have been disclosed, because the emails revealed exculpatory facts that were not otherwise revealed to the defendant.

Breakiron v. Horn, 642 F.3d 126 (3rd Cir. 2011)

The state prosecutor’s failure to reveal that a jailhouse witness (1) had requested a deal in exchange for his testimony, (2) had a prior conviction for a crime of assault with intent to rob, and (3) was the subject of a pending investigation for new charges, required that the writ be granted. The witness’s testimony was material even with regard to matters that he did not testify about, because if the witness was believed regarding matters that he did address, this meant that the defendant was lying, so that the defendant’s testimony on the other matters might also have been disbelieved by the jury.

Maxwell v. Roe, 628 F.3d 486 (9th Cir. 2010)

The state failed to reveal to the defense that the informant in this state murder prosecution had originally negotiated a certain deal in exchange for his testimony and that thereafter, the informant insisted on an even better deal in exchange for his testimony in the murder case. The informant also committed perjury during the course of his testimony, including about his background, his education, a conversation he had the with the prison rabbi about testifying against the defendant, as well as his history of providing “snitch” evidence in other cases. This case contains an extensive discussion of the perils of jailhouse informant testimony.

Simmons v. Beard, 590 F.3d 223 (3rd Cir. 2009)

The prosecution’s failure to reveal that a key witness had been pressured to cooperate with the police (and to surrepticiously record the defendant, albeit unsuccessfully) prior to his arrest violated Brady. At trial, the witness appeared to willingly condemn her boyfriend, which could have been rebutted, if the defense knew that she had been pressured to cooperate. Another witness had lied on an application to purchase a firearm, and the prosecution had helped heravoid liability for this offense. This evidence had also been withheld from the defense. New trial ordered.

Robinson v. Mills, 592 F.3d 730 (6th Cir. 2010)

The state’s failure to reveal that an eyewitness to the murder was also a confidential informant at the time that she witnessed the crime and at the time she testified at trial was a Brady violation that required granting the writ. The status of the witness would have demonstrated that she had a bias in favor of the prosecution; and the jury may have discounted the testimony of an informant more than a disinterested witness.

Wilson v. Beard, 589 F.3d 651 (3rd Cir. 2009)

The prosecution failed to turn over to the defense a key witness’s rap sheet; another witness’s financial relationship to the lead detective (i.e., the detective was giving loans to the witness in his capacity as an informant) and medical records and mental health records regarding another witness. The medical records would have been admissible to demonstrate the witness’s ability to perceive. The fact that the rap sheet was a matter of public record does not absolve the prosecution of its duty to furnish the information to the defense. All of these Brady violations required granting the writ.

United States v. Torres, 569 F.3d 1277 (10th Cir. 2009)

The government produced certain information about the testifying C.I., but failed to reveal that she had worked for the government as a C.I. previously and had “fallen off the wagon” and committed offenses while a C.I. that led to criminal prosecutions. Because the C.I.’s credibility was a central issue in this case, the failure to disclose this information was a reversible Brady violation.

Drake v. Portuondo, 553 F.3d 230 (2d Cir. 2009)

The state relied on an expert who testified about his various credentials, as well as his involvement in the investigation of this murder case. His testimony was false in virtually all respects. He was not an expert (he was a lab technician) and he had reviewed the evidence for the state for a period of time quite different that his testimony suggested. The state may not have known the extent to which he lied about his credentials, but it did know about the amount of time he had spent reviewing the evidence. In addition, the state prosecutor knew that the expert was not a “published scholar” but asked at trial whether the witness had “written papers in his field” to which the witness answered in the affirmative (technically, this was true, but nothing had been published). The Second Circuit granted the writ based on the state’s failure to reveal the perjurious nature of the “expert” at trial.

United States v. Banks, 546 F.3d 507 (7th Cir. 2008)

A crime lab expert testified at trial about the nature of the substance tested, as well as its weight. Unbeknownst to the prosecutor and the defendant (but known to the DEA), the expert was under investigation by the DEA for misuse of a government credit card. At the point she testified, she did not know the outcome of this investigation. Shortly thereafter, she received an informal reprimand. When the defendant learned about this after trial, he moved for a new trial and the trial court granted the motion. The Seventh Circuit affirmed, holding that the district judge was within the bounds of his discretion in granting the new trial based on this Brady violation.

Silva v. Brown, 416 F.3d 980 (9th Cir. 2005)

As part of a plea agreement, a witness and the state agreed that the witness would not undergo psychological testing until after he testified at the defendant’s trial. Failing to disclose this part of the deal to the defendant was a Brady violation that necessitated granting a writ of habeas corpus. Evidence of a witness’s competence (or lack thereof) is critically important impeaching information that should not be hidden from the defense). See also Benn v. Lambert, 283 F.3d 1040 (9th Cir. 2002) (holding that undisclosed evidence of a crucial government witness’s drug use during the defendant’s trial was material because it would reflect on that witness’s competence and credibility as a witness).

Conley v. United States, 415 F.3d 183 (1st Cir. 2005)

The government failed to reveal an FBI report of interview that contained a witness statement that was inconsistent with his trial testimony. The witness stated during the interview that he was uncertain about what he observed at the crime scene and his request to be hypnotized to help him recall. At trial he expressed no uncertainty. The failure to reveal this information was a Brady violation that necessitated a new trial.

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. Jackson, 345 F.3d 59 (2d Cir. 2003)

Brady applies to information about declarants who do not testify, but whose out-of-court statements are introduced in evidence.

Norton v. Spencer, 351 F.3d 1 (1st Cir. 2003)

Affidavits from the alleged child molestation victim’s mother and sibling claimed that the allegations were false. The state did not reveal these affidavits to the defendant prior to the state trial. Habeas granted.

Silva v. Woodford, 279 F.3d 825 (9th Cir. 2002)

An evidentiary hearing was necessary to inquire into the facts of defendant’s Brady claim. The defendant claimed that a co-defendant who testified for the state had severe mental problems. In fact, the co-defendant’s attorney had intended to have his client’s competency evaluated, but was encouraged by the state (and there was an agreement between the codefendant and the state) to wait until after the co-defendant testified at the defendant’s trial. The Ninth Circuit held that if this claim was shown to be true at an evidentiary hearing, the conviction would have to be set aside.

East v. Johnson, 123 F.3d 235 (5th Cir. 1997)

During the sentencing phase of the defendant's death penalty trial, the state called a witness who claimed that the defendant had brutally raped her, threatened to kill her, and revealed that he had killed other witnesses. The state failed to reveal to the defendant the witness's rap sheet. Had the defendant seen the rap sheet and investigated the witness's prior arrest, he would have discovered that she had been declared incompetent to stand trial because she experienced bizarre sexual hallucinations and believed that unidentified individuals were attempting kill her. The psychiatric report further concluded that the witness was incapable of distinguishing between reality and fantasies caused by her hallucinations. This undisclosed impeaching information may well have had an impact on the jury's evaluation of the witness's credibility and this witness's testimony was significant in the death penalty presentation of the state. The sentence was vacated on the basis of this Brady violation.

Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997)

The state's star witness in this death penalty prosecution was a witness with a long history of lying to the police and blaming others for crimes he committed. The court quoted from its earlier opinion in United States v. Bernal-Obeso, 989 F.2d 331 (9th Cir. 1993): "[Informants granted immunity are] by definition . . . cut from untrustworthy cloth[,] and must be managed and carefully watched by the government and the courts to prevent them from falsely accusing the innocent, from manufacturing evidence against those under suspicion of crime, and from lying under oath in the courtroom . . . . Because the government decides whether and when to use such witnesses, and what, if anything, to give them for their service, the government stands uniquely positioned to guard against perfidy. . . . Accordingly, we expect prosecutors and investigators to take all reasonable measures to safeguard the system against treachery. This responsibility includes the duty as required by Giglio to turn over to the defense in discovery all material information casting a shadow on a government witness's credibility." The court also stressed that the government cannot avoid its obligation with the excuse that it did not possess the relevant files relating to their witness. When the state relies on a witness who has an extensive criminal record, the state has the burden to investigate prison records, and any information contained therein that might bear on the witness's credibility.

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).

United States v. Perdomo, 929 F.2d 967 (3rd Cir. 1991)

There was no evidence of a prosecution witness’s record in the NCIC; however, the local records (in the Virgin Islands) contained a criminal record of the witness. The prosecutor had the duty to ascertain whether such a record existed. (Virgin Island records are not contained in the NCIC). The fact that the public defender’s office had previously represented the witness – and the defendant in this case was also represented by the PD’s office – does not alter the result.

Carter v. Rafferty, 826 F.2d 1299 (3rd Cir. 1987)

The Third Circuit affirmed the district court’s grant of a habeas petition to Hurricane Carter twenty years after he was convicted of murder. The Third Circuit agrees with the district court that the government’s failure to produce information that the star prosecution witness was utterly incapable of telling the truth represented a violation of the defendant’s due process rights under Brady. The evidence withheld in this case was the lie detector report which revealed that the witness did not tell the truth. The court holds that lie detector reports of tests administered to a prosecution witness are material for purposes of Brady.

United States v. Kelly, 35 F.3d 929 (4th Cir. 1994)

The defendant was convicted of kidnapping. He had been retained by a woman to “recover” her daughter from a cult. He approached a woman, who identified herself as being the daughter, and brought her to the mother. The mother said that this was the wrong person. The “victim” was then returned to the place from which she was taken. The “victim” was another member of the cult and was also under investigation by the Feds for money laundering, CTR violations and filing false loan applications to a bank. At trial, she answered questions about the loan application falsely and the government failed to correct this testimony. Also, there were Brady violations: the government failed to disclose the extent of the victim’s participation in the cult, the true scope of her criminal conduct which was under investigation (including a search warrant affidavit which supported a search of her house) and the various false statements she had made to her employer, the EPA, to which she had lied about her health in order to use several months of paid sick leave – while she continued to work at other jobs.

Jean v. Rice, 945 F.2d 82 (4th Cir. 1991)

Prior to being hypnotized, the rape victim could not identify the defendant as the assailant. After being hypnotized, she could. The state was under a duty, pursuant to Brady, to disclose the tapes and other documents of the hypnosis sessions.

McDowell v. Dixon, 858 F.2d 945 (4th Cir. 1988)

Only one eyewitness identified the defendant who assaulted the victim. First the eyewitness stated that the assailant was white, though the defendant was black; the eyewitness testified that the assailant had shoulder length hair, but later that he had an afro. The prosecutor failed to reveal the prior misidentifications. This violated Brady and requires reversal of the conviction.

East v. Johnson, 123 F.3d 235 (5th Cir. 1997)

The state failed to reveal a penalty-phase witness’s criminal record which, if disclosed, would also have led to the discovery of the witness’s considerable mental health problems. Withholding this Brady information resulted in unimpeached testimony that the defendant posed a significant risk of future dangerousness. The appellate court set aside the death sentence.

United States v. Minsky, 963 F.2d 870 (6th Cir. 1992)

It was a Brady violation to withhold from the defense the fact that a witness had previously lied to the FBI.

United States v. Kehm, 799 F.2d 354 (7th Cir. 1986)

The government should have revealed to the defendant that a prosecution witness had refused, either out of fear or friendship, to testify against a certain group of people. It was part of the witness’ immunity agreement that he would not be prosecuted, and not required to testify or make any statements against the group.

United States v. O’Conner, 64 F.3d 355 (8th Cir. 1995)

Several co-conspirators who agreed to cooperate with the government threatened other cooperating witnesses in order to “get their story straight.” These threats were known to the DEA and to the AUSA. Nevertheless, the defense was not informed of this information. With regard to the counts of conviction for which there was no corroborating evidence, the failure to disclose this information was reversible error.

United States v. Wayne, 903 F.2d 1188 (8th Cir. 1990)

Following his conviction on drug related counts, the defendant was granted a new trial on two counts because the government had withheld evidence critical to the cross-examination of a key government witness. The information suppressed was a record of drug transactions kept by a cooperating witness. However, the trial court did not err in not granting a new trial as to other counts which were not affected by the suppression of this information.

Reutter v. Solem, 888 F.2d 578 (8th Cir. 1989)

The key witness against the defendant in this drug prosecution was his former law partner and close friend. Unbeknownst to the defense, this witness, who was currently serving a term of imprisonment himself, had applied for commutation of his sentence and the State was actively supporting it. Furthermore, among the members of the commutation board was the prosecutor in defendant’s trial. None of this information was provided to the defense despite a request for all exculpatory and impeaching evidence. This Brady violation was aggravated by the prosecutor’s closing argument during which he argued that the witness had no reason whatsoever to lie and had nothing to gain from cooperating with the State. The conviction was reversed.

United States v. Steinberg, 99 F.3d 1486 (9th Cir. 1996)

A confidential informant was involved in a drug transaction involving counterfeit money with the defendant. The government agent was aware, but did not tell the defense at trial (or the prosecutor), that the informant was also involved in unauthorized counterfeit transactions at the same time. Also, the government was aware that the informant owed money to the defendant, but did not reveal this information to the defense. This evidence was material, because the informant’s testimony at trial was critical, and this evidence would have undermined his credibility. The failure to reveal this information to the defense was reversible error.

United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993)

Three people were caught smuggling drugs. Two defendants went to trial, while the third provided information to the government. The cooperating individual did not testify. During closing argument, the prosecutor argued that the third individual could not be compelled to testify. This was not true; the witness had signed a cooperation agreement and the government withheld this from the defense and the jury. This type of misconduct on the part of thegovernment necessitated reversing the conviction. The government made this argument in response to the defendant’s argument that the government failed to call the cooperating individual, and therefore the witness probably had nothing to say that was favorable to the government. The government’s response was untrue and thus unfairly undercut the defendant’s argument.

United States v. Bernal-Obeso, 989 F.2d 331 (9th Cir. 1993)

Just prior to trial, the government alerted the defense that an informant had killed two people several years earlier, but had never been charged with a crime. The defense learned that the informant had in fact pled guilty to two counts of manslaughter and asked the court to permit the defense additional time to determine the background, and also asked to be permitted to ask the informant why he lied to the DEA about his background. Both requests were denied by the trial court. The Ninth Circuit reversed. “We expect prosecutors and investigators to take all reasonable measures to safeguard the system against treachery (by informants) including turning over, as Giglio requires, all material information casting a shadow on an informant’s credibility.” The defendant should be permitted to question the informant, pursuant to Rule 608(b), about his lying to the DEA regarding his criminal record.

United States v. Brumel-Alvarez, 991 F.2d 1452 (9th Cir. 1992)

One informant for the government testified that he went to Bolivia and witnessed the source of the cocaine involved in the conspiracy alleged in this indictment. No other cocaine was introduced, seized, or known to have been in possession of any of the defendants. The prosecutor acknowledged in both his opening and his closing that the informant’s testimony was the key to the case. The prosecutor, however, failed to reveal to the defense a memorandum written by a DEA agent who severely criticized the operation and the credibility of the informant. Only a redacted version was provided to the defense. Among other things, the memorandum documented various false claims of the informant and his predilection to “run” the operation. The memorandum also revealed that the informant declined to make undercover calls to the supposed “higher-ups” who were involved in the smuggling venture. The memorandum also qualified as Jencks Act material of the author of the memorandum – the disgruntled DEA agent who testified on behalf of the government.

Smith v. Sec’y of New Mexico Dept. of Corrections, 50 F.3d 801 (10th Cir. 1995)

After a lengthy review of the evidence in this double murder prosecution, the court holds that Brady information was withheld from the defense and the writ of habeas corpus would be granted. Along the way, the court recognized that the withheld information did not have to be known to the prosecutor, as long as the police were aware of the favorable information. Also, the fact that the information is characterized as “impeachment” is not fatal to the Brady claim. Impeachment evidence can also undermine confidence in the verdict. Finally, the state’s claim that its “open file” policy satisfied its Brady obligation was not persuasive. Of course, if the information is not in the prosecutor’s file, it will not have been disclosed to the defense in the open file review. Here, the information (including impeachment information relating to the state’s key witness) was undeniably in the possession of the law enforcement agents who investigated the murder.

United States v. Yizar, 956 F.2d 230 (11th Cir. 1992)

Though an evidentiary hearing was necessary to develop the facts, the defendant made a colorable claim that the government violated Brady by failing to disclose to the defense that justprior to being brought into the grand jury, the co-defendant told the prosecutor that the defendant was not guilty of the arson with which he was charged.

United States v. Cuffie, 80 F.3d 514 (D.C.Cir. 1996)

The defendant’s conviction was spoiled by a Brady violation: the government was aware that one of its witnesses, a police officer who pled guilty to drug offenses and was testifying pursuant to a plea agreement, had also perjured himself in a prior arrest expungement proceeding involving his cousin. Even though the witness was otherwise impeached at trial concerning his drug conviction and plea agreement, the evidence of prior perjury was material and could have substantially affected the efforts of defense counsel to impeach the witness. In short, this was a different – yet powerful – kind of impeachment (prior perjury) that was not otherwise available to the defense.

United States v. Smith, 77 F.3d 511 (D.C.Cir. 1996)

The government failed to reveal to the defense that one of the government’s witnesses had a D.C. Superior Court case dismissed against him and also had a psychiatric history. This was reversible error. Citing Kyles v. Whitley, the appellate court observed that in determining the materiality of the non-disclosed information, the lower court should not simply determine whether the evidence was still sufficient to convict the defendant if the witness whose history was not disclosed were ignored.