Criminal cases in the United States follow, for the most part, an adversarial model.  This means that each side bears primary responsibility for finding and presenting evidence supporting its arguments, while a neutral arbiter—such as a judge or a jury, decides between those competing versions of facts (or law).  An important exception to this adversarial model is the Brady rule, named after the Supreme Court case Brady v. Maryland.  In this blog post, we will explain what the Brady rule is, how it functions, and some important limitations on the Brady rule that make the rule less powerful than it seems (or should be).

What is the Brady rule? 

In Brady, the Supreme Court held that the due process clause under the Constitution requires the prosecution to turn over all exculpatory evidence—i.e., evidence favorable to the defendant.  In subsequent cases, the Supreme Court clarified and expanded upon the Brady rule, requiring prosecutors to turn over not only evidence that directly exonerates a defendant, but also any evidence that damages the prosecution’s case—such as evidence impeaching a prosecution witness, or information that could lead to the discovery of such evidence.  When a prosecutor fails to do so, he or she has committed a Brady violation.  Consequences of a Brady violation can include having a conviction vacated, as well as disciplinary actions against the prosecutor.

There are three components to establishing a Brady violation.  First, the prosecution must have suppressed evidence or information, meaning that something was not turned over to the defense.  Second, the suppressed evidence or information must have been favorable, meaning that it would have been helpful for the defense.  It could be something that directly proves the defendant’s innocence, or it could be information that leads to the discovery of evidence.  Finally, the suppressed evidence or information must have been material, meaning that there’s a reasonable probability that, if the evidence or information had been turned over to the defense, the outcome of the case would have been different (e.g., the jury would have acquitted the defendant).

How does a prosecutor comply with the Brady rule? 

There is no set procedure governing how prosecutors must comply with the Brady rule.  Courts enforce the Brady rule by ordering the prosecutor to disclose certain evidence, or vacating convictions when a Brady violation is established after a trial.  However, in the federal system, and in most state prosecutor’s offices, there will be written manuals or guidelines that set forth what prosecutors must do to comply with Brady.  The Department of Justice, for example, has a section devoted to Brady compliance in the United States Attorney’s Manual.  Sometimes, the Attorney General’s Office also issues guidance memorandums to line attorneys about Brady.  One example is a famous memorandum issued by Deputy David W. Ogden, sometimes called the “Ogden” memo, that specifically outlines the steps that prosecutors should take to comply with Brady.

In federal criminal cases, prosecutors tend to comply with Brady by including favorable evidence among its discovery productions made pursuant to Rule 16 of the Federal Rules of Criminal Procedure.  It is rare, however, that a prosecutor will specifically identify any document or piece of evidence in the discovery as Brady material.  For example, when a prosecutor sends your attorney a disc, a USB hard-drive, or other medium containing a large volume of apparently incriminating information, some favorable evidence may be (and probably is) buried among the unfavorable evidence.  Unfortunately, there is no rule requiring prosecutors to specifically identify Brady information. Thus, it is generally up to the defense attorney to carefully review any discovery production to make sure that no favorable evidence is overlooked.

Federal prosecutors also sometimes draw a distinction between what it calls Brady evidence, and what it calls Giglio evidence.  Giglio evidence is a species of Brady evidence, and refers to evidence that impeaches prosecution witnesses, as opposed to proving the defendant’s innocence. For example, evidence that the lead FBI agent in a case was disciplined for violating FBI rules may be a type of Giglio evidence.  Alternatively, evidence that a prosecution witness was offered immunity or some other benefit may also be Giglio evidence.  Although in principle there is no difference between Giglio and Brady evidence, prosecutors often rely on this distinction to justify late disclosure of Giglio.  It is not uncommon, for example, for prosecutors to withhold Giglio evidence until a few days before trial.

Although most prosecutors are conscientious and will comply with their Brady obligations voluntarily, it is an unfortunate truth that Brady violations are frequent in the federal criminal system.  This stems in part from an unsettled area of law regarding whether materiality (i.e., whether the evidence will make a difference at trial) is a condition for prosecutors to disclose favorable evidence or information.  Some courts hold that all favorable evidence should be disclosed to the defense, regardless of materiality.  Other courts (and prosecutors), however, believe that only material evidence needs to be disclosed.  When a prosecutor is tasked with judging whether a piece of evidence is material, it becomes far too easy for any individual piece of evidence (except for “smoking gun” evidence) to be deemed “not material.”

What can I do if a prosecutor has violated Brady? 

Owing to the nature of Brady violations, often they go undiscovered until longer after the case is over.  When a Brady violation is discovered afer the defendant’s case has concluded, typically the defendant will have to file some kind of post-conviction motion to try to get the conviction vacated, such as through 18 U.S.C. § 2255 petition.

Sometimes, however, Brady disputes may arise before trial while the parties are still conducting discovery.  In these instances, the common procedure is for the trial court to conduct an in camera—meaning in private—examination of the evidence to decide whether it must be disclosed.  Once the trial court has made its ruling, either the evidence will be turned over to the defense, or it will remain sealed with the Court and be available for the Court of Appeals to review in case of an appeal.

Litigating Brady violations is a difficult and complex process because of the high burden on the defendant to prove that not only was favorable evidence withheld from the defense, but that the withheld evidence would have made a difference a trial.  Frequently, convictions tainted by Brady violations are upheld because the courts deem a particular violation immaterial in light of the other evidence showing the defendant’s guilt.  In order to properly present a Brady claim, it is therefore paramount for a defense attorney to show, in a concise and easy to understand manner, what evidence was withheld and why that piece of evidence was crucial to the defendant’s case at trial.