Brady Material

• Jurisdiction: Maryland

III. Brady material

A. Types of Brady material

Brady material includes all information that, if believed, would be favorable to the defendant and likely lead to a result of "not guilty" or guilty to a lower degree of the crime. United States v. Bagley, 473 U.S. 667, 682-83 (1976); Giglio v. United States, 405 U.S. 150, 154 (1972); Diallo v. State, 413 Md. 678, 704 (2010); Ware v. State, 348 Md. 19, 38 (1997).

1. Exculpatory evidence

Exculpatory evidence is evidence that is "capable of clearing or tending to clear the accused of guilt." Edwards v. State, 453 Md. 174, 196 (2017) (citing Jackson v. State, 207 Md. App. 336, 357, cert. denied, 429 Md. 530 (2012)).

2. Mitigation evidence

Mitigation evidence is evidence that tends to lessen the degree of guilt or lessen the sentence. In Cone v. Bell, 556 U.S. 449, 475-76 (2009), the Supreme Court held that the defendant's drug dependency may have been mitigating evidence regarding imposition of the death penalty.

3. Impeachment evidence

Impeachment evidence is evidence that provides a basis for impeaching a State's witness. This includes (a) evidence of prior conduct demonstrating untruthfulness of a State's witness; (b) a relationship between the State's Attorney and the witness, including any favorable "deal" that was given to the witness in return for the witness's cooperation or testimony; (c) prior criminal convictions, pending charges, or probationary status of the witness; (d) prior inconsistent statements; (e) a medical or psychiatric condition or addiction of the witness that might impair the witness's ability to testify truthfully or accurately; (f) the fact that the witness has taken but did not pass a polygraph examination; and (g) the failure of the witness to identify the defendant or a codefendant. Md. Rule 4-263(d)(6)(A)-(G).

Evidence of an actual, or even an implied, agreement between the State and the witness for favorable action by the State, in return for testimony, is Brady material because it affects the witness's credibility. Giglio, 405 U.S. at 154-55; Wilson v. State, 363 Md. 333, 350 (2001). However, a witness's subjective self-induced expectation of leniency is not Brady material. Adams v. State, 165 Md. App. 352, 382 (2005).

In Williams v. State, 152 Md. App. 200, 222-25 (2003), the Court of Special Appeals held that the prosecutor was required to disclose the status of the State's witness as a paid informant in cases not prosecuted by her, and that the information concerning that status was exculpatory and material to impeachment.

The State is not required to disclose impeachment evidence prior to entering a plea agreement with the defendant. See United States v. Ruiz, 536 U.S. 622, 628-29 (2002).

The trial court may not prevent the defendant from cross-examining a witness as to potential deals with the State. In Calloway v. State, 414 Md. 616, 639 (2010), the Court of Appeals held that the defendant is entitled to question a witness about a "deal" with the State.

4. The State's use of or failure to correct known perjured testimony

In Mooney v. Holohan, 294 U.S. 103, 112 (1935), the Supreme Court announced that due process is offended by the State's use of known perjured testimony to secure a conviction. A "conviction obtained by the knowing use of perjured testimony is fundamentally unfair and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. at 103.

Not only must the State refrain from producing false testimony, but it must also "correct statements, known to be false, even if unsolicited." Hall v. Warden of Md. House of Correction, 222 Md. 590, 593 (1960). In Alcorta v. Texas, 355 U.S. 28 (1957), the defendant was convicted of murdering his wife after allegedly seeing her kiss another man in a vehicle parked in front of his home. The defendant argued that seeing his wife kiss another man provided provocation to negate malice. The man testified that he was just a casual friend, who stopped at the defendant's home because of engine trouble, and he did not kiss the defendant's wife.

In fact, the man and the defendant's wife had an affair and the man later gave a sworn statement that he had given false testimony. On habeas corpus, the man testified that the prosecutor told him not to volunteer information about the affair but, if asked, to answer truthfully, and the prosecutor confirmed this. The Supreme Court reversed the conviction based on a due process violation, stating:

It cannot seriously be disputed that [the man's] testimony, taken as a whole, gave the jury the false impression that his relationship with the [defendant's] wife was nothing more than a casual friendship. . . . If [the defendant's] defense had been accepted by the jury, as it might well have been if [the man] had not been allowed to testify falsely, to the knowledge of the prosecutor, his offense would have been reduced to "murder without malice" precluding the death penalty now imposed upon him.

Id. at 31-32. See Pyle v. Kansas, 317 U.S. 213, 216 (1942) (remand to determine the validity of the defendant's allegation that the State used perjured testimony). The State has a duty to correct perjured testimony. Giglio, 405 U.S. 150. The State has a duty to correct whether perjured testimony relates to the elements of the crime or to witness motivation for testifying and witness credibility. In Napue v....