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May 2001 , Page 14 

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Extracting the Gate Key: Litigating Brady Issues

By Robert S. Mahler

Westley: Give us the gate key.

Yellin: I have no gate key.

Inigo Montoya: Feznik, tear his arms off.

Yellin: Oh, you mean this gate key.1 

The same year in which the fictional character Inigo Montoya extracted the palace gate key from a reluctant Yellin by threatening to have Feznik (played by Andre the Giant) rip Yellin's arms off, Professor Richard Rosen published a study identifying hundreds of reported cases in which prosecutors concealed Brady2 material from the defense.3 There is nothing to suggest that the number of Brady violations has been shrinking in the years since Professor Rosen published his article. Even a cursory review of the recent cases reveals the contrary. And empirical evidence abounds that material favorable to criminal defendants is routinely concealed from them by prosecutors and police who either don't understand what is governed by the Brady Doctrine or who simply elect to ignore it.

Nonetheless, courts (particularly trial courts) remain timidly deferential to the prosecutors' mantra that they are aware of their constitutional duty to disclose Brady material, but none exists. Many districts live under standing discovery orders that say nothing more than that the prosecutor is required to disclose Brady evidence. Often, nothing further is done by the court or the defense to enforce the prosecutor's constitutional duty. All too frequently, however, it is discovered on appeal or in post-conviction proceedings (when it may well be too late to do any good) that important exculpatory evidence was concealed.

“[A]s a practical matter, there is almost nothing that presently prevents the prosecutor disposed to do so from routinely withholding exculpatory evidence.”4 That is precisely why it is incumbent upon defense counsel to aggressively litigate Brady claims. Brady evidence can be the gate key to our clients' liberty. It is an unfortunate aspect of federal criminal practice that some government prosecutors and government law enforcement officers cannot be trusted voluntarily to turn it over. It must be wrested from them. When the prosecutor stands before the court and declares that he or she is aware of the government's constitutional obligation to disclose Brady material but they have no knowledge of the existence of any such evidence, I say to you, “Feznik, tear his arms off.”

This article begins with a general explanation of what has come to be known as the Brady Doctrine. It addresses the definition of “materiality” under Brady and its progeny, and the reasons why the Supreme Court's materiality standard should not apply to our pre-trial requests for Brady material. It offers a substitute standard, recently held by a Federal District Court judge to be the applicable standard for evaluating pre-trial Brady requests. It will then discuss the critical issue of the timing of Brady disclosures. Next, it will address the importance of tailoring specific defense requests for Brady material to the specific facts of each individual case. Finally, the article discusses some important specific issues that frequently arise in Brady litigation.

Genesis of the Brady Doctrine

[T]he prosecutor's role transcends that of an adversary: he ‘is the representative not of an ordinary party to a controversy, but of a sovereignty ... whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done.’5 

Brady holds that a prosecutor violates the Due Process Clause when he or she fails to disclose material evidence favorable to the accused. The Brady rule rests on the notion that a criminal trial is a search for truth. As Justice Fortas later asserted, “[T]he State's obligation is not to convict, but to see that, as far as possible, truth emerges.”6 It is this idyllic conception of the criminal justice system that is the underpinning of the Brady Doctrine.

Brady was not created from scratch as an isolated exercise of the Court's omnipotence.7 It evolved quite naturally from the Court's 1935 decision in Mooney v. Holohan.8 Mooney, which involved a prosecutor's knowing and deliberate presentation of perjurious testimony, held that due process “cannot ... be satisfied by mere notice and a hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury.”9 Nearly 25 years later, in Napue v. Illinois,10 the Court expanded this rule to include cases in which the prosecution did not solicit the false evidence, but “allow[ed] it to go uncorrected when it appear[ed].”11 

Adopting the core values of these early cases, the Court in Brady held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.”12 Thus, the Court identified three elements of a Brady violation: (1) the suppression by the prosecution of evidence; (2) that is favorable to the defense; and (3) is material either to guilt or to punishment. The prosecutor's motives, even his or her lack of knowledge of the existence of such evidence, are not controlling considerations.

[U]nder Brady an inadvertent nondisclosure has the same impact on the fairness of the proceedings as deliberate concealment. If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor.13 

Years later, in Giglio v. United States,14 the Court expanded the prosecutor's duty to disclose favorable evidence to include evidence that would impeach a government witness. While Giglio is commonly understood to require the government to disclose such impeaching information as plea agreements, promises of leniency, inducements to testify, and financial assistance offered by the government, it is not limited to these things. Any material affecting the credibility of a witness is subject to disclosure.15 Later lower court opinions have made clear that the rule also applies to require disclosure of any “informal understandings” of leniency in exchange for testimony.16 Furthermore, it is not only the fact of an agreement that must be disclosed, but the details as well.17 A witness's expectation of financial benefit, evidenced by prior experiences or suggestions by agents or statements of the witness himself is considered exculpatory and material impeachment matter that must be disclosed.18 

The next significant decision in the Brady line of cases was United States v. Agurs.19 In Agurs the Court specified three situations requiring the prosecutor to disclose exculpatory evidence.20 These occasions are: (1) when the prosecution knew or should have known that a witness proffered perjured testimony; (2) where the defense had specifically requested exculpatory information; and (3) when there was evidence of sufficient significance that its suppression would result in the denial of a fair trial, regardless of whether the defendant had made a specific request.21 This was the rule for nearly a decade. In 1985, however, when the Court decided United States v. Bagley,22 these distinctions were made irrelevant. Bagley held that whether or not the defense had specifically requested exculpatory information, the due process clause required that “material” exculpatory evidence be disclosed to the defense. Such evidence, according to the Court in Bagley is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”23 In Bagley, the Court also expressly rejected any distinction between the standard of materiality applicable to impeachment evidence and that applicable to any other form of exculpatory evidence.24 

In Kyles v. Whitley,25 the Court explicitly extended the holdings in these cases to information existing beyond the prosecutor's office. The Court held that the prosecutor remains responsible for producing evidence favorable to the defense even when the investigating officers fail to bring such evidence to the prosecutor's attention. Thus, the rule requiring the government to disclose evidence favorable to the accused “encompasses evidence ‘known only to police investigators and not to the prosecutor.”’26 The Court emphasized the prosecutor's personal duty to become aware of, and disclose, exculpatory information in the possession of law enforcement agencies.

[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police. ...

Since, then, the prosecutor has the means to discharge the government's Brady responsibility if he will, any argument for excusing a prosecutor from disclosing what he does not happen to know about boils down to a plea to substitute the police for the prosecutor, and even for the courts themselves, as the final arbiters of the government's obligation to ensure fair trials.27 

In Kyles, the Supreme Court explained that a showing of materiality does not require that the suppressed evidence in question establish the defendant's innocence by a preponderance of the evidence. Instead, 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.”28 This standard does not require the defendant to “demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict.”29 

‘Materiality’ in the Pre-Trial Context

One thing that all of the cases cited above have in common is that they arose either on direct appeal or collateral attack of a conviction. When the Court ruled that undisclosed evidence would subject a prior conviction to reversal “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,”30 it contemplated a scenario in which reviewing courts could analyze the missing evidence in the light of the record evidence. It seems obvious that this post-conviction standard does not translate well into a standard used to govern a prosecutor's disclosure obligations in advance of trial. How can the Court know, for instance, whether the material in question would establish a reasonable probability of a different result at a time when the defendant remains cloaked in the presumption of innocence; no evidence of guilt has yet been offered; and the Court can only speculate about the evidence the government might ultimately produce at trial.31 

With post-trial requests, the trial court has the advantage of evaluating suppressed evidence in the context of the entire record. It is therefore in a much better position to determine the prejudice caused by non-disclosure. On the other hand, pre-trial claims must be considered in terms of abstract probabilities. Viewing requested information against a bare outline of the prosecution as set forth in the indictment, the court has no way of accurately predicting the effect of missing evidence on a case which has not yet begun. Thus the trial court's approach and analysis of a front-end claim are several steps removed from a post-trial claim.32 

At least one federal judge agrees. In United States v. Sudikoff,33 the court held that the Bagley materiality standard was inappropriate in the pre-trial context. The Sudikoff court found significant distinctions between a convicted defendant's effort to overturn an otherwise valid conviction and an accused's right to obtain favorable information in the government's possession prior to trial. First, the court recognized that because a Brady violation requires the appellate court to conclude disclosure of the evidence might have affected the outcome of the trial, a due process violation could only occur if the withheld evidence was admissible or would have led to admissible evidence.34 The Court noted that if the withheld evidence was not admissible in trial it could not conceivably have affected the outcome of the proceeding.35 “Whether disclosure would have influenced the out-come of a trial can only be determined after the trial is completed and the total effect of all the inculpatory evidence can be weighed against the presumed effect of the undisclosed Brady material.'36 ‘This analysis obviously cannot be applied by a trial court facing a pretrial discovery request.’37 ‘[I]n the pre-trial context it would be inappropriate to suppress evidence because it seems insufficient to alter a jury's verdict.”38 

The court added that:

the post-trial review determines only whether the improper suppression of evidence violated the defendant's due process rights. However, that the suppression may not have been sufficient to violate due process does not mean that it was proper .... “[S]uppression of exculpatory evidence is improper even if it does not satisfy the materiality standard of Brady and result in a due process violation. Though an error may be harmless, it is still error. Therefore, post-trial standards in cases applying them are not helpful for determining the government's disclosure obligations.”39 

The Sudikoff court determined that a more lenient standard applies for determining in the pre-trial context what favorable evidence in the government's possession must be disclosed. As to what can be considered “favorable,” the court concluded that it is any evidence relating to guilt or punishment “and which tends to help the defense by either bolstering the defense's case or impeaching prosecution witnesses.”40 As to what constitutes “evidence” that must be disclosed, the court considered and rejected the notion that it is limited only to admissible evidence. Brady “requires disclosure of exculpatory information that is either admissible or is reasonably likely to lead to admissible evidence.”41 

Although the Sudikoff court is apparently the first expressly to adopt a separate pre-trial materiality standard, it is not alone in recognizing that the post-trial Brady standard may not be appropriate to use in ruling on pre-trial Brady motions. In United States v. McVeigh,42 Judge Matsch addressed the same issue.43 He observed:

There is no established procedure for the due process disclosures required by Brady .... Generally, Brady violations first come before a court after the trial and the court may then consider the materiality of what was suppressed or omitted from disclosures made, in the context of the complete trial record. Indeed, it is not possible to apply the materiality standard in trials before the outcome of the trial is known.44 

It is eminently reasonable to urge the trial court to adopt the Sudikoff standard in evaluating pre-trial Brady motions. Waiting for a mistake to be made and leaving a defendant with post-trial remedies is inconsistent with the emphasis on a fair trial embodied by Brady and its progeny. The pre-trial standard adopted by Sudikoff is one uniquely geared to ensuring that the individual accused of a crime, but not yet convicted, is provided the materials that will assure him or her a fair trial.

Government's Duty to Search

In Pennsylvania v. Ritchie,45 the Supreme Court implied that Brady may require the prosecutor to examine files held by other government agencies to determine whether they contained any material evidence favorable to the defense.46 The defendant in Ritchie was charged with raping his 13 year old daughter. Under state law, the state agency charged with investigating cases of suspected mistreatment was only able to release its confidential files under certain specified circumstances. At the time of Ritchie's trial, those circumstances did not include release to law enforcement officials for use in criminal investigations. Consequently, the trial prosecutor had never seen the state agency's file. Indeed, the trial prosecutor did not have access to the file and, therefore, was unable to comply with the defense request that the file be provided prior to trial. The Court, nevertheless, held that the defendant was “entitled to have the [state agency's] file reviewed ... to determine whether it contain[ed] information that probably would have changed the outcome of his trial.”47 Years later, in Kyles v. Whitley, discussed above, the Court explicitly established the rule that the prosecutor was responsible for information maintained beyond the prosecutor's office.48 

These cases make clear that the government, to discharge its obligations under the Brady Doctrine, must seek out evidence favorable to the accused even when it is not in the trial prosecutor's possession.49 One commentator, examining the body of case law describing the prosecutor's duties to search for exculpatory evidence, found that a number of courts have taken the approach that the duty of disclosure exists with respect to any agencies that had “important contact with the prosecution during either the *18 investigation or prosecution of the case.”50 At bottom, the government has a constitutional duty to discover and disclose exculpatory evidence possessed by any of its agencies involved in the investigation, whether or not the United States Attorney has knowledge of the information. Even under Rule 16 of the Federal Rules of Criminal Procedure — which is not of constitutional dimension and which is limited in scope and triggered only by a defense request for discovery — the United States is deemed to be under a duty to investigate and disclose evidence material to the preparation of the defense which is contained in the files of federal agencies participating in the same investigation of the defendant.51 

The import of these cases to defense counsel is apparent. It is insufficient for the prosecutor merely to assert that he or she is unaware of the existence of any Brady material without first establishing that all of the files maintained by the agencies involved in the investigation have been examined. Without such an acknowledgment by the prosecutor, neither the court nor the defendant can be confident that the government's Brady obligations have in fact been faithfully administered.

Even an open file policy may be no substitute for the discharge of the government's Brady obligation. In Strickler v. Greene,52 the Court held that defense counsel's reliance on the prosecutor's open file policy in failing to discover exculpatory evidence maintained by law enforcement officers constituted “cause” sufficient to overcome the procedural default of a Brady claim.53 The Court expressly noted that “if a prosecutor asserts that he complies with Brady through an open file policy, defense counsel may reasonably rely on the file to contain all materials the State is constitutionally obligated to disclose under Brady.”54 For practical purposes, in those districts in which prosecutors maintain an open file policy, it may still be necessary to insure that the files being opened to defense counsel include those maintained by all of the investigative agencies involved the case.55 

An additional note is worth making here, as well. It is well settled that no Brady violation will be found where the defendant knew or should have known “the essential facts permitting him to take advantage of any exculpatory information, or where the evidence is available from another source.”56 This means that it is absolutely critical that the defense conduct its own investigation and make requests that are founded upon that investigation, but which are geared to discovering evidence or information that is not available to the defense from sources other than the government's own files.

Critical Importance of Specific Requests for Disclosure

The prosecutors' duty to investigate the existence of Brady evidence in places beyond the tips of their noses creates a concomitant duty on defense counsel to point them in the right direction and to specify, to the extent possible, what information he or she believes will be found there. Trusting the prosecutor to know a piece of favorable evidence when he or she sees it is an extremely risky matter.

“In crafting pre-trial requests, first and foremost, defense counsel should be as specific as her knowledge of the case will allow. A specific discovery request notifies the prosecutor that a certain file in his department or that of a related agency contains potentially exculpatory material. A specific request further eases the prosecution's task in finding the information. For these and other reasons, specific claims are highly favored by the courts. While a court will not order a prosecuting agency to turn over every rock, it may well require the government to turn one or two. [Footnotes omitted.] ‘Under this more flexible, sliding scale approach to assessing the material vel non of the evidence in question, the specificity of the request is inversely related to the prosecution's disclosure obligation.”57 

Unlike obscenity, which — as Justice Stewart famously noted — one knows when one sees it,58 prosecutors all too often wouldn't know a piece of evidence favorable to the defense if it bit them on the ankle. The defense has to provide a road map articulating, with as much precision as can be mustered within the confines of sound trial strategy, all of the facts supporting the defense and all of the information thought to be relevant to advancing that defense which might be located in government files. Expect that a boilerplate request will be met with a boilerplate response, followed by a boilerplate order denying the request.59 

In the absence of a specific request for production the decision whether material found in the government's files is favorable to the defense is left entirely to the discretion of the prosecutor.60 However, where defense counsel is able to identify with specificity the materials he or she contends is favorable to the defense, the prosecutor's decision not to disclose such information more amenable to judicial intervention a supervision.

In Brady the request was specific. It gave the prosecutor notice of exactly what the defense desired. Although there is, of course, no duty to provide defense counsel with unlimited discovery of everything known to the prosecutor, if the subject matter of such a request is material, or indeed if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge. When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable.61 

It's no secret that trial courts have a general antipathy to resolving pre-trial discovery disputes. To overcome that attitude, the defendant seeking Brady material needs demonstrate that the government isn't playing by the rules. To do that, the defense has to lay some cards on the table. The more detailed and specific the defendant's Brady request, the more expansive and rational the explanation of how the requested material would advance the defense, the more credible the defense argument. The Court's intervention is critical. And it is available only if the defense can identify in its pleadings the specific nature of the evidence sought, the likely places it might be found in the government's files, and the precise reasons it is favorable to the defense.62 

Brady Materials Should be Turned Over As Soon As Discovered

Timing Considerations Generally

The Supreme Court has never pinpointed the precise time at which Brady disclosures must be made. However, has long been settled that the government must disclose the material “in time for effective use at trial.”63 It is within the discretion of the trial court to control the timing of discovery.64 Considerations judicial economy and efficient trial management support the idea that delivery exculpatory evidence should occur “the earliest feasible opportunity.”65 The constitutional command that the government disclose exculpatory evidence is grounded, as noted in the first section of this article, in the prosecutor's overriding duty to seek justice rather than victory. Withholding exculpatory evidence that is already known to the government until shortly before trial in order to obtain a litigative advantage is fundamentally inconsistent with Brady's underpinnings.

Availability of Brady Material for Plea Decision 

There is authority for the proposition that the government's disclosure obligation applies to a defendant's decision whether to plead guilty.66 At least four circuits have held that the nondisclosure of Brady/Giglio material may be sufficient to invalidate a guilty plea.67 These cases counsel that early disclosure is an important safeguard of the defendant's right to make an informed and intelligent decision about whether to plead guilty.

Mr. Brady, Meet Mr. Jencks 

Frequently the government will argue that whatever Brady material it does have, including impeaching material, is contained in witness statements and is governed by the Jencks Act.68 The Jencks Act prescribes a time at which production of witness statements must be made by requiring the government to produce the statements only after that witness has testified on direct examination.69 A district court does not have the power to order disclosure of Jencks material earlier than the statute provides.70 

The government's ability to withhold Brady material by treating it as subject to the Jencks Act has generally been justified by the courts as necessary to protect government witnesses.71 This tension between Brady's requirement that evidence be disclosed at a time when it will be useful to the defense, and the Jencks Act's proscription of disclosure until after the witness has testified on direct examination, has been addressed by a number of courts. Many of them recognize that Brady may compel disclosure of material prior to trial, even when that material falls within the ambit of the Jencks Act.

It is conceivable that disclosure of material covered by the Jencks Act may be required, under Brady and the due process clause, to be made to the defendant before trial in order that the defendant might prepare and present an effective defense.72 

The conflict between the timing at which Brady material must be disclosed (and the court's ability to control the timing of that disclosure) and the time of Jencks Act disclosures (and the court's inability to control the timing of those disclosures) has led to a split in the federal circuits.73 “At least five circuits have held that where evidence is both Brady and Jencks material, the Jencks Act controls the timing of its disclosure, and thus that the government is not required to disclose the evidence until after direct examination.”74 “Other circuits, however, have held that the constitutional dictates of Brady, and not the Jencks Act, govern the disclosure of evidence which is both Brady and Jencks material.”75 The Court in Beckford adopted a balancing approach to determine the appropriate timing of disclosure, balancing the potential dangers to government witnesses of early disclosure against the importance to the defense of the fair trial right served by Brady.76 

Dis 'n Dat

Any article on the Brady Doctrine wouldn't be complete without at least some mention of a few additional issues of some significance that often arise.

Personnel Files of Testifying Officers — There appears to be a conflict in the circuits regarding the discovery, under the Brady Doctrine, of exculpatory or impeaching information contained in the personnel files of testifying law enforcement officers. In United States v. Henthorn,77 the court held that when a defendant requests the personnel files of testifying officers, the government is required to examine them and disclose exculpatory or impeaching information to the defendant. Under Henthorn, if the government is uncertain about the materiality of the information it may submit the information to the trial court for in camera review.78 The rule in the Ninth Circuit does not require the defendant to make an initial showing of materiality; the government's obligation to examine the files arises by virtue of the defendant's mere demand for their production.79 The court later clarified that the Assistant United States Attorney may not be ordered by the district court to conduct the examination personally. Rather, the appropriate agency may examine its files and notify the prosecutor of the existence of Brady material.80 Later, however, while adhering to the rule in Herring, the Ninth Circuit added:

Delegating the responsibility to a non-attorney police investigator to review his own and other officers' rough notes to determine whether they contain Brady, Bagley, and Giglio information is clearly problematic. Although we have held that the district court cannot order an AUSA personally to review law enforcement personnel files ... we see little justification and much danger to both the prosecutor's reputation and the quality of justice her office serves for a prosecutor not to review personally those materials directly related to the investigation and prosecution of the defendants, such as a testifying officer's surveillance notes.81 

A number of circuits, however, have declined to adopt the Henthorn rule, requiring instead that a defendant make a showing that the testifying officer's personnel file will provide evidence that can materially impeach the officer before the Court will order the prosecutor to disclose the information or turn it over to the Court for in camera review.82 

In short, in the Ninth Circuit ask and ye shall receive. Elsewhere, you better be prepared to make a showing of what you expect to find of an impeaching nature in a testifying officer's personnel records. This means, as a general proposition, counsel must independently investigate the background of the testifying agent and reveal, to the extent possible, whatever was learned of an unflattering or impeaching nature in order to persuade the court that there may be supporting evidence in the officer's personnel files.

Destruction of Exculpatory Evidence — In California v. Trombetta,83 the Court extended the Brady Doctrine to circumstances involving the loss or destruction of potentially exculpatory evidence by the government. The Court held that to rise to the level of a due process violation, lost or destroyed evidence “must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. Four years later, in Arizona v. Youngblood,84 the Court clarified Trombetta by holding that the government's failure to preserve potentially exculpatory evidence only violates due process if the defendant can also demonstrate that the evidence was destroyed in “bad faith.”85 

The Ninth Circuit has extended this doctrine to apply to evidence that had the potential at a suppression hearing to impeach allegations in an affidavit for a search warrant.86 The court likened the destruction of impeaching evidence at a suppression hearing to the submission of false statements in a search warrant affidavit. Applying the rationale of Franks v. Delaware,87 the court reasoned that [b]y deliberately destroying impeaching evidence, an officer could feel secure that false allegations in his or her affidavit for a search warrant could not be challenged. Such a result would effectively deprive a criminal defendant of his Fourth Amendment right to challenge the validity of a search warrant. To protect the right of privacy, we hold that the due process principles announced in Brady and its progeny must be applied to a suppression hearing involving a challenge to the truthfulness of allegations in an affidavit for a search warrant.88 

Information Contained in Otherwise Confidential Reports — The government's duty to disclose exculpatory information includes the duty to disclose materials contained in probation department files, including presentence reports.89 However, to reconcile the need for confidentiality with a defendant's due process right to obtain favorable material that might exist in such a file, courts typically require the prosecutor to present the documents to the court for in camera review.90 

Presentation of Exculpatory Evidence to the Grand Jury — There is no constitutional requirement that the government present evidence favorable to the accused to the grand jury. Indeed, the Supreme Court has held to the contrary.91 The United States Attorneys' Manual, although expressly stating that it creates no legal rights for defendants, does require federal prosecutors who are “personally aware of substantial evidence that directly negates the guilt of the subject of the investigation ... [to] present or otherwise disclose such evidence to the grand jury before seeking an indictment against such a person.”92 At a minimum, then, defense counsel who is aware of exculpatory information that has not been presented to the grand jury, and who wishes to have the material presented, should bring the government's attention to this provision and request compliance with it.

Getting the Gate Key

In Kyles the Supreme Court wrote: “The prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence,”93 and that “[t]he prudent prosecutor will resolve doubtful questions in favor of disclosure.”94 Despite these warnings, government prosecutors and law enforcement officers frequently reveal no intention of complying with their constitutional duty to seek out and provide exculpatory evidence to the defense. Defense counsel, therefore, must aggressively investigate and pursue the existence of potential Brady evidence and, where there is reason to believe exculpatory information is being withheld, zealously litigate Brady claims. When the government is hiding the gate key, we must take the necessary measures to make them give it up. We may not have Feznik at our disposal, but a fair-minded judge with lifetime tenure, convinced that our cause is righteous, can be almost as good.


  1. The Princess Bride (Warner Brothers 1987).
  2. Brady v. Maryland, 373 U.S. 83 (1963).
  3. Rosen, “Disciplinary Sanctions Against Prosecutors for Brady Violations: A Paper Tiger,” 65 N.C.L. Rev. 693, 700-702, n. 38-48 (1987). Because the subject of Professor Rosen's article was the use (or more appropriately, lack thereof) of bar discipline against prosecutors who violate Brady, he had no occasion to address the times when exculpatory information in possession of law enforcement agencies was never disclosed either to the defense or the prosecutor, a category of cases that undoubtedly accounts for hundreds of additional examples of Brady violations.
  4. Weeks, No Wrong Without a Remedy: The Effective Enforcement of the Duty of Prosecutors to Disclose Exculpatory Evidence, 22 OKLA. C. U. L. REV. 833, 835 (1997).
  5. United States v. Bagley, 473 U.S. 667, 675 n.6 (1985) (alteration in original) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). See also Model Rules of Professional Conduct RULE 3.8, Comment. 1 (1988) (“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.”).
  6. Note, Brady v. Maryland and the Search for Truth in Criminal Trials, 63 U. CHI. L. REV. 1673, 1673-74 (1996), quoting Giles v. Maryland, 386 U.S. 66, 98 (1967) (Fortas, J. concurring).
  7. Cf. Bush v. Gore, 531 U.S. 98 (2000).
  8. 294 U.S. 103, 112 (1935) (per curiam), cited in Brady, 373 U.S. at 86.
  9. Mooney, 294 U.S. at 112.
  10. 360 U.S. 264, 269 (1959).
  11. Id. at 269.
  12. Brady, 373 U.S. at 87.
  13. Amadeo v. Zant, 486 U.S. 214, 222 (1988) (internal quotation and citation omitted).
  14. 405 U.S. 150, 154 (1972).
  15. See, e.g., Carriger v. Stewart, 132 F.3d 463, 479 (9th Cir.) (en banc), cert. denied, ___ U.S. ___, 118 S. Ct. 1827 (1998) (“Material evidence required to be disclosed includes evidence bearing on the credibility of government witnesses.”)
  16. Alderman v. Zant, 22 F.3d 1541, 1554 (11th Cir.), cert. denied, 513 U.S. 1061 (1994); Mastrian v. McManus, 554 F.2d 813, 823-24 (8th Cir.), cert. denied, 433 U.S. 913 (1977) (declining to read Giglio as requiring disclosure of a witness's expectation of leniency in the absence of evidence of an express or implied agreement).
  17. United States v. Shaffer, 789 F.2d 682 (9th Cir. 1986).
  18. United States v. Riskin, 788 F.2d 1361 (8th Cir. 1986), cert. denied, 479 U.S. 923 (1986).
  19. 427 U.S. 97 (1976).
  20. Id. at 103-07.
  21. Id.
  22. 473 U.S. 667 (1985).
  23. Bagley, 473 U.S. at 682; see also, Kyles v. Whitley, 514 U.S. 419, 433-34 (1995).
  24. Bagley, 473 U.S. at 676.
  25. 514 U.S. 419 (1995).
  26. Strickler v. Greene, 527 U.S. 263, 144 L. Ed.2d 286, 301 (1999), quoting Kyles, 514 U.S. at 437.
  27. Kyles, 514 U.S. at 437-38.
  28. Id., 514 U.S. at 434.
  29. Id. at 434-35.
  30. Bagley, 473 U.S. at 682.
  31. An illuminating example of the inapplicability of the post-trial materiality standard to the pre-trial context is the standard applicable to determining whether withholding impeachment evidence constitutes reversible error. Concealment of impeachment evidence will not lead to reversal if it is cumulative, meaning that “the witness was already impeached at trial by the same kind of evidence.” United States v. Cuffie, 80 F.3d 514, 518 (D.C. Cir. 1996). It would be remarkable indeed, for a court to determine before trial that it is appropriate for a prosecutor to withhold some impeachment materials because the defense already has plenty.
  32. Mark, Strategies For Trial Counsel under Brady v. Maryland & Rule 16[a][1][C] of the Federal Rules of Criminal Procedure, THE CHAMPION, April 1997 at 16.
  33. 36 F. Supp. 2d 1196 (C.D. Cal. 1999).
  34. Id. at 1198, citing Coleman v. Calderone, 158 F.3d 1105, 1117-18 (9th Cir.), rev'd on other grounds 525 U.S. 141 (1998).
  35. Ibid.
  36. Id. at 1198-99 (citing cases analyzing the effect of suppressed evidence in the light of the trial record).
  37. Id. at 1199.
  38. Ibid.
  39. Ibid.
  40. Id. at 1199.
  41. Id. at 1200 (emphasis supplied). See also, United States v. Lloyd, 992 F.2d 348, 350-51 (defining “materiality” under Fed.R.Crim.P. 16(a)(1)(C) to include information that could “play an important role in uncovering admissible evidence); United States v. LaRouche Campaign, 695 F. Supp. 1265, 1279 (D. Mass. 1988) (exculpatory evidence under Brady Doctrine includes not only documents or testimony admissible in evidence, but also inadmissible materials which, if defendant had access to them, might lead to admissible materials).
  42. 954 F. Supp. 1441 (D. Colo. 1997).
  43. Id. at 1449-50.
  44. Id. (emphasis supplied); accord United States v. Siriprechapong, 181 F.R.D. 416, 422 (N.D. Cal. 1998). See also Daughtry v. Dennehy, 946 F.Supp. 1053, 1057 n. 2 (D. Mass. 1996) (distinguishing “materiality” of evidence on habeas review from the breadth of evidence required to be disclosed pursuant to pre-trial discovery orders crafted “to give meaningful life to the Brady-Bagly-Kyles constitutional mandate ....”).
  45. 480 U.S. 39 (1987).
  46. Id. at 57-60.
  47. Id. at 57-58.
  48. Kyles, 514 U.S. at 437-38.
  49. Some courts, before the decision in Kyles, stated that no Brady obligations arise unless the evidence at issue is within the prosecutor's actual possession, custody, or control. See, e.g., United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991), citing United States v. Gatto, 763 F.2d 1040, 1049 (9th Cir. 1985) (“The prosecution is under no [Brady] obligation to turn over materials not under its control.”). In light of Kyles, the continued vitality of these cases is dubious at best.
  50. Note, 63 U. CHI. L. REV. at 1681-83.
  51. See, e.g., United States v. Bryan, 868 F.2d 1032, 1036 (9th Cir.), cert. denied, 493 U.S. 858 (1989); United States v. Wood, 57 F.3d 733, 737(9th Cir. 1995) (FDA must, in criminal trial, disclose contents of investigational new drug applications bearing on the safety of the drug the defendant was charged with unlawfully dispensing); United States v. Brooks, 966 F.2d 1500, 1502-03 (D.C. Cir. 1992) (the government's duty to search other agencies' files includes the duty to search police department and internal affairs files); United States v. Perdomo, 929 F.2d 967, 980 (3rd Cir. 1991) (establishing that the prosecution team charged with the duty to disclose favorable evidence included both investigative and prosecution personnel); United States v. Osorio, 929 F.2d 753, 760 (1st Cir. 1991).
  52. ___ U.S. ___, 144 L. Ed. 2d 286 (1999).
  53. Id. at 202-207.
  54. Strickler, 144 L. Ed. 2d at 303, n. 23.
  55. This should not be understood to be a criticism in any way of prosecutors who maintain such a policy. Indeed, the Supreme Court has recognized that such a practice increases “the efficiency and the fairness of the criminal process.” Strickler, 144 L. Ed. 2d at 303, n.23.
  56. Byrd v. Collins, 209 F.3d 486, 517 (6th Cir. 2000), quoting Workmen v. Bell, 178 F.3d 759, 767 (6th Cir. 1988); Perdomo, 929 F.2d at 973 (Evidence will not be considered suppressed by the government if the defendant either “knew or should have known of the essential facts permitting him to take advantage of any exculpatory evidence.).
  57. See Lippman, Strategies for Trial Counsel Under Brady v. Maryland & Rule 16(a)(1)(C) of the Federal Rules of Criminal Procedure, quoting Smith v. Secretary of Department of Corrections, 50 F.3d 801, 827 (10th Cir. 1995), THE CHAMPION, April 1997, p.17.
  58. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
  59. See, e.g., United States v. Brooks, 966 F.2d 1500, 1503 (D.C. Cir. 1992) (finding it “highly relevant that defense counsel pinpointed files that can be searched without difficulty”).
  60. See, e.g., Ritchie, 480 U.S. at 59.
  61. Agurs, 427 U.S. at 106.
  62. See generally Ritchie, 480 U.S. at 58, n. 15 (if the accused is able to identify the requested material with some degree of specificity, he may then attempt to convince the district court that it is subject to in camera review and/or disclosure.”).
  63. United States v. Smith Grading and Paving, Inc., 760 F.2d 527, 531 (4th Cir.), cert. denied, sub. nom. Dellinger, Inc. v. United States, 474 U.S. 1005 (1985).
  64. United States v. LacLevasseur, 826 F.2d 158 (1st Cir. 1987).
  65. United States v. Staursko, 729 F.2d 256, 264 (3rd Cir. 1984). See also ABA Standards for CRIMINAL JUSTICE, PROSECUTION FUNCTION AND DEFENSE FUNCTION, § 3.311(a) (3rd Ed. 1993) (The Court should order the government to produce Brady material “at the earliest feasible opportunity.”).
  66. See United States v. Persico, 164 Fed. 3d 796, 804 (2nd Cir.), cert. denied, 120 S.Ct. 171 (1999) (“The defendant is entitled to make [the decision to plead guilty] with full awareness of favorable (exculpatory and impeachment) evidence known to the Government.”). See also United States v. Avellino, 136 F.3d 249, 261-62 (2nd Cir. 1998) (“Where a Brady violation is established, that is, the court has found that the government withheld favorable information from the defendant and has ruled there is a reasonable probability that the information if disclosed, would have led the defendant not to plead guilty,” the court is without discretion to deny a motion to withdraw the guilty plea.).
  67. Sanchez v. United States, 50 F.3d 1448, 1453 (9th Cir. 1995); White v. United States, 858 F.2d 416, 422 (8th Cir. 1988), cert. denied, 489 U.S. 1029 (1989); Miller v. Angliker, 848 F.2d 1312, 1320 (2nd Cir.), cert. denied, 48 U.S. 890 (1988); Campbell v. Marshall, 769 F.2d 314, 321 (6th Cir. 1985), cert. denied, 475 U.S. 1048 (1986).
  68. 18 U.S.C. § 3500 (codifying Jencks v. United States, 353 U.S. 657 (1957)).
  69. 18 U.S.C. § 3500(a).
  70. See United States v. Lewis, 35 F.3d 148, 151 (4th Cir. 1994); United States v. Welch, 810 F.2d 485, 489 n. 2 (5th Cir. 1987); United States v. Spagnuolo, 515 F.2d 818, 821 (9th Cir. 1975); United States v. Sebastian, 497 F.2d 1267, 1270 (2 nd Cir. 1974).
  71. United States v. Beckford, 962 F. Supp. 780, 787 (E.D. Va. 1997), citing United States v. Roberts, 811 F.2d 257, 259 (4th Cir. 1987) (en banc).
  72. Beckford, 962 F. Supp. at 789, quoting United States v. Ruiz, 702 F. Supp. 1066, 1069 (S.D.N.Y. 1989), aff'd, 894 F.2d 501 (2nd Cir. 1990).
  73. See Beckford, 962 F. Supp. at 789.
  74. Id. at 791, citing United States v. Presser, 844 F.2d 1275, 1283 (6th Cir. 1988); United States v. Scott, 524 F.2d 465, 467-68 (5th Cir. 1975); United States v. Jones, 612 F.2d 453, 455 (9th Cir. 1979), cert. denied, 445 U.S. 966 (1980); Untied States v. Kaplan, 554 F.2d 577 (3rd Cir. 1977).
  75. Beckford, 962 F. Supp. at 791, citing United States v. Starusko, 729 F.2d 256, 263 (3rd Cir. 1984); United States v. Tarantino, 846 F.2d 1384, 1414-15 n. 11 (D.C. Cir. 1988), cert. denied 488 U.S. 867 (1988); United States v. Owens, 933 F. Supp. 76, 84 (D. Mass. 1996); United States v. Thevis, 84 F.R.D. 47, 54 (N.D. Ga. 1979).
  76. Id. at 792. The Court suggested that the factors which ought to be considered in striking the balance include: “(1) the identity and role of the person making the statement; (2) the realistic risks to that person; (3) the nature of the statement itself and how far in advance of trial disclosure must be made in order to permit effective use of that sort of material; (4) the volume of material; and (5) the nature and extent of the charges.” Id. at 793.
  77. 931 F.2d 29 (9th Cir. 1991).
  78. Id. at 30-31.
  79. Id. at 31.
  80. United States v. Herring, 83 F.3d 1120 (9th Cir. 1996).
  81. United States v. Alvarez, 86 F.3d 901, 905 (9th Cir. 1996), cert. denied, 519 U.S. 1082 (1997).
  82. See, e.g., United States v. Quinn, 123 F.3d 1415, 1422 (11th Cir. 1997), cert. denied, 523 U.S. 1012 (1998); United States v. Valentine, 100 F.3d 1209 (6th Cir. 1995). See also, United States v. Andrus, 775 F.2d 825, 843 (7th Cir. 1985) (“Mere speculation that a government file may contain Brady material is not sufficient to require a remand for in camera inspection, much less reversal for a new trial. A due process standard which is satisfied by mere speculation would convert Brady into a discovery device and impose an undue burden on the district court.”).
  83. 467 U.S. 479, 489 (1984).
  84. 488 U.S. 51, 58 (1988).
  85. Id.
  86. United States v. Barton, 995 F.2d 931, 934 (9th Cir.), cert. denied, 510 U.S. 957 (1993).
  87. 438 U.S. 154 (1978).
  88. Barton, 995 F.2d at 935.
  89. United States v. Stiffler, 851 F.2d 1197, 1201-02 (9th Cir. 1988), cert. denied, 489 1032 (1989) (defendant entitled to material in probation file bearing on credibility of the significant witness); United States v. Carreon, 11 F.3d 1225, 1238 (5th Cir. 1994).
  90. See, e.g., Pennsylvania v. Ritchie, 480 U.S. 39 (1987); Stiffler, 851 F.2d at 1201; Carreon, 11 F.3d at 1238.
  91. United States v. Williams, 504 U.S. 36, 54-55 (1992). But see Cassidy, Toward a More Independent Grand Jury: Recasting and Enforcing the Prosecutor's Duty to Disclose Exculpatory Evidence, 13 GEO. J. LEGAL ETHICS 361 (2000) (arguing that states, to prevent prosecutorial abuse, should impose on prosecutors a duty to disclose to the grand jury all substantial and admissible exculpatory evidence). See also, STANDARDS FOR CRIMINAL JUSTICE, THE PROSECUTION FUNCTION, STANDARD, 3-3.6(b) (Am. Bar Association 3rd Ed. 1992) (“No prosecutor should knowingly fail to disclose to the grand jury evidence which tends to negate guilt or mitigate the offense.
  92. U.S. Department of Justice, UNITED STATES ATTORNEYS' MANUAL, (1-1.100 (1999)).
  93. Kyles, 514 U.S. at 439.
  94. Ibid. (internal quotation marks omitted). 
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