CHAPTER 7 DISCOVERY

• Jurisdiction: United States

Chapter 7 DISCOVERY

§ 7.01 CONSTITUTIONAL DISCOVERY RIGHTS OF THE DEFENDANT: OVERVIEW¹

Although "there is no general constitutional right to discovery in a criminal case,"² the Due Process Clauses of the Fifth and Fourteenth Amendments do provide criminal defendants with the right to certain evidence within the government's possession. In particular, the Court held in Brady v. Maryland³ that "the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."⁴ The Court grounded this due process principle on "avoidance of an unfair trial to the accused."⁵

In Brady, B and his co-defendant were charged with capital murder. B admitted his participation in the crime, but testified that his co-defendant (who was tried separately) did the actual killing. B asked the jury to spare him from the death penalty, without success. After he had been sentenced to death, B learned that the prosecution had possessed a statement by his co-defendant admitting that the co-defendant had done the actual killing. Although B's trial counsel had asked to examine the co-defendant's statements, the prosecution withheld this particular statement throughout the trial. The Court concluded that in these circumstances B was entitled to a new trial on the question of his punishment.

The Brady decision, though built on an older precedent in which the government had knowingly used perjured testimony,⁶ opened a significant pathway to defense discovery of exculpatory evidence. As explained below,⁷ the Court has gradually expanded both the type of evidence the prosecution must provide to the defense and the scope of the prosecution's responsibility for doing so. For example, the Court has held that the prosecution's Brady obligation extends to impeachment material⁸ and to evidence the police possess that the prosecutor is unaware of,⁹ and applies even in the absence of a request by the defense for the evidence.¹⁰ At the same time, however, the Court's restriction of the prosecutor's obligation to "material" information — evidence that creates a "reasonable probability that . . . the result of the proceeding would have been different"¹¹ — has significantly limited the force of the Brady rule.

The sections that follow discuss the development of these and other significant rules regarding Brady.

§ 7.02 ELEMENTS OF THE BRADY RULE

There are three elements to a Brady violation. First, the evidence at issue must be "favorable to the accused." Second, the evidence must have been "suppressed" by the state. Third, the evidence must have been material, which means that the defendant must have suffered prejudice from the suppression.¹²

[A] Nature of the Evidence

In Brady, the evidence that the prosecution failed to disclose was very directly in the defendant's favor: [S]omeone else admitted doing the shooting. That left open questions concerning what other kinds of evidence were "favorable to the accused," and therefore a part of the disclosure mandated by due process. In particular, is "impeachment evidence" — evidence that does not directly exculpate the defendant, but instead merely reduces the credibility of a prosecution witness — the sort of evidence that falls within Brady's mandate?

In Giglio v. United States,¹³ the Court answered this question. T, the government's key witness against G, received a promise that he would not be prosecuted if he agreed to testify against G, but the government did not disclose this fact to G. The Court reversed G's conviction, holding that "nondisclosure of evidence affecting credibility" falls within the Brady rule. Subsequently, the Court has consistently "rejected any . . . distinction between impeachment evidence and exculpatory evidence"¹⁴ in applying the Brady rule.

[B] Suppression of the Evidence by the State

In Brady, there was no doubt that the state had suppressed the evidence. B had specifically requested to inspect his co-defendant's statements, and the prosecutor disclosed some of them, but secretly withheld the one in which the co-defendant admitted doing the actual killing. Future cases, however, would have to resolve whether state "suppression" existed if the defendant did not request the evidence or requested it only in very general terms, or if the police had the evidence but the prosecution did not know about it.

As the Brady doctrine developed, the Court held that suppression existed in all of these circumstances. Because the prosecutor "is the 'servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer,'"¹⁵ the Court reasoned that due process requires the prosecutor to provide Brady material to the defense even in the absence of a request. Undoubtedly a specific request from the defendant might provide the prosecutor with greater notice of what was being sought than no request or a general request for "all Brady material" would. At the same time, however, the Court concluded that evidence can be so "obviously of such substantial value to the defense that elementary fairness"¹⁶ requires disclosure even without a defense request.

Similarly, when faced with the circumstance in which, at the time of the trial, the evidence was known to police investigators but not to the prosecutor, the Court again firmly held that the state had "suppressed" the evidence. The Court reasoned that allowing an excuse in these circumstances would effectively substitute the police for prosecutors and courts as the "final arbiters" of the obligation to provide a fair trial.¹⁷ While recognizing that investigators sometimes fail to inform prosecutors of everything they know, the Court placed the burden on prosecutors to establish procedures and regulations sufficient to ensure communication to the prosecutor of all Brady information. Thus, although the word "suppression" implies intentional action, in the Brady context accidental failures to disclose also count as suppression.

When one considers that Brady information includes only evidence that is both favorable to the accused and, as explained below, material to the outcome of the case, requiring prosecutors to obtain such evidence from the police was hardly a radical step.

[C] Prejudice — The Materiality Standard

In Brady, the Court held that suppression of evidence favorable to the accused "violates due process where the evidence is material either to guilt or to punishment."¹⁸ It took another twenty years and multiple decisions for the Court to sort out exactly what "material" meant in this context.

[1] Agurs

In United States v. Agurs,¹⁹ A, charged with the murder of S, unsuccessfully claimed self-defense at her trial. After A was convicted, A's counsel learned that S had a prior criminal record, including convictions for assault and carrying a deadly weapon. Although A had made no request for S's criminal record prior to her trial, she contended that the prosecution's failure to disclose it violated Brady and mandated a new trial.

As noted above, the Court concluded that Brady disclosure was required even in the absence of a defense request for information. Nonetheless, the Court rejected A's claim on the ground that the evidence — S's criminal record — was not "material."

In defining this term, the Court distinguished three "Brady" situations. In the first, the undisclosed evidence shows that the prosecution used perjured testimony, which it knew or should have known was perjured. In this circumstance, the Court held, a resulting conviction must be set aside "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury."²⁰

In the second situation, typified by Brady itself, the defense makes a specific pretrial request for the suppressed evidence. In Agurs, the Court withheld judgment on defining "materiality" in these circumstances, noting only that a third situation might have a different standard for materiality.

That third situation — illustrated by Agurs itself — arises when there is no defense request for the exculpatory information, or only a very general request along the lines of "all Brady material." In this situation, the Court stated, because the right to exculpatory evidence came from the right to a fair trial under the Due Process Clause, there is no breach of the prosecutor's duty to disclose, and no constitutional violation requiring the verdict to be set aside, unless the failure to disclose deprived the defendant of a fair trial. A finding that the defendant received a fair trial, the Court reasoned, requires that a conviction be supported by evidence establishing guilt beyond a reasonable doubt. Therefore, the Court concluded, evidence is material in the Agurs context if it "creates a reasonable doubt that did not otherwise exist."²¹

The trial judge in Agurs, relying on evidence that had been presented to the jury that S was carrying two knives when stabbed by A, and noting that A's self-defense claim was inconsistent with both S's multiple wounds and A's lack of injury, remained satisfied of A's guilt beyond a reasonable doubt even with the "favorable" evidence of S's criminal record. The Court accepted the trial judge's conclusion and, given the Court's standard of materiality, therefore sustained the conviction.

[2] Bagley

In United States v. Bagley,²² the Court answered the question left open in Agurs — what standard of materiality applies when the defense makes a specific request for the suppressed material? — and significantly refined the materiality standard it had described in Agurs. Once again the Court faced a situation in which the prosecution had failed to disclose impeachment material, this time the fact that the government's witnesses had been paid by the government for helping with the case. Even though the defense had specifically requested information regarding "any deals, promises or...