Brady disclosure explained

In the legal system of the United States, a 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 1963 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. In practice, this doctrine has often proved difficult to enforce. Some states have established their own laws to try to strengthen enforcement against prosecutorial misconduct in this area.

Definition of the Brady rule

The Brady doctrine is a pretrial discovery rule that was established by the United States Supreme Court in Brady v. Maryland (1963).^[2] The rule requires that the prosecution must turn over all exculpatory evidence to the defendant in a criminal case. Exculpatory evidence is evidence that might exonerate the defendant.^[3]

Examples

Examples include the following:

The prosecutor must disclose an agreement not to prosecute a witness in exchange for the witness's testimony.^[4]
The prosecutor must disclose leniency (or preferential treatment) agreements made with witnesses in exchange for testimony.^[5]
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 inform the prosecutor's office of anything that tends to prove the innocence of the defendant.^[6] Not all exculpatory evidence is required to be disclosed by Brady and its progeny; only evidence that is "material to guilt or punishment" must be disclosed because its disclosure would create a reasonable probability of changing the outcome of the proceeding.^[7] The prosecutor is not obligated to personally review police files in search of exculpatory information when the defendant asks for it, but to allow the defense reasonable access.^[8] 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."^[9] ^[10]
The prosecutor must disclose arrest photographs of the defendant when those photos do not match the victim's description.^[11]
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.^[12]
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.^[13] Lists of such officers are known as "Brady lists".^[14] The growing use of Brady, both in the federal and state sectors, is one of the most important changes affecting police officers' employment.^[15]

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.^[16] Conformity with Brady is a continuing obligation of prosecutors. Some prosecuting attorney offices have adopted and created specialized procedure and bureaus to meet their burden.^[17]
Pitchess v. Superior Court^[18] is the source for a "Pitchess motion" in California. 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.^[19] Notwithstanding, because of the broad nature of the discovery that the associated court rule and statute provide, getting actual records can be complicated. 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.^[20]

Applicability to plea bargains

, federal appeals courts are split as to whether defendants have the right to receive materially exculpatory evidence before making a plea bargain, which is how the vast majority of convictions are now obtained. The Seventh, Ninth, and Tenth Circuits assert that they do; the First, Second, Fourth, and Fifth Circuits assert that they do not.^[21]

State "open file" laws like the Michael Morton Act in Texas allow defendants to see all prosecution evidence at every stage of prosecution, including the plea bargain stage.

Notes and References

373 U.S. 83 (1963)
Book: Kaplan . John . Criminal Law – Cases and Materials . Weisberg . Robert . Binder . Guyora . 2012 . Wolters Kluwer Law & Business . 7th . 4 . John Kaplan (law professor) . Robert Weisberg.
Book: Bryan A. Garner
. 7th . Exculpatory evidence. Bryan A. . Garner. Bryan A. Garner . . St. Paul, Minnesota . . 1999 . 1891 . 577 . exculpatory evidence Evidence tending to establish a criminal defendant's innocence ● The prosecution has a duty to disclose exculpatory evidence in its possession or control when the evidence may be material to the outcome of the case. . 0-314-22864-0 .
Giglio v. United States, 405 U.S. 150 (1972).
U.S. v. Sudikoff, 36 F.Supp. 2d 1196 (C.D. Cal. 1999); State v. Lindsey, 621 So. 2d 618 (La. Ct. App. 1993).
Kyles v. Whitley, 514 U.S. 419 (1995).
Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
U.S. v. Herring, 83 F.3d 1120 (9th Cir. 1996).
Strickler, 527 U.S. at 281.
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 (Thomson Reuters 2015).
Commonwealth v. Tucceri, 412 Mass. 401 (1992).
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.
News: Lewis . Kamb . Nalder . Eric . Cops who lie don't always lose jobs . . January 29, 2008 . January 2, 2013.
Web site: April 29, 2022 . What is a Brady List? . 2023-09-10 . kingcounty.gov.
Book: The Rights of Law Enforcement Officers . Will . Atchison . Chapter 6: The Brady Rule . 7th . Labor Relations Information System, www.LRIS.com . Portland, Oregon . July 2015 . 978-1880607299. January 28, 2018.
Kyles v. Whitley, 514 U.S. 419, 440; United States. v. Agurs, 427 U.S. 97, 110.
Web site: Special Directive 02-08 Brady Protocol . December 7, 2002 . . April 7, 2014 . dead . https://web.archive.org/web/20140408213135/http://da.co.la.ca.us/sd02-08.htm . April 8, 2014 .
Pitchess v. Superior Court, 11 Cal.3d 531 (1974)
Cal. Evid. Code §§ 1043–1046
Web site: Brady List and Pitchess Motions . Jerry L. . Steering . April 7, 2014 . https://web.archive.org/web/20140409002846/http://steeringlaw.com/brady-list-pitchess-motion/ . April 9, 2014 . dead .
Web site: Circuit Split: Are Brady Claims Available for Defendants Who Plead Guilty When the Prosecution Withholds Materially Exculpatory Evidence? . Kyle Greene . 31 October 2018 . University of Cincinnati Law Review.