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Apart from any discovery under FED. R. CRIM. P. Rule 16, the criminal defendant has a Constitutional right to the disclosure of all favorable evidence in the possession of the Government, pursuant to the “due process” clause of the Fifth and Fourteenth Amendments. Brady v. Maryland, 373 US 83 (1963).

This right of the defendant to disclosure of “favorable” evidence exists whether such evidence is material to the defendant’s guilt or to mitigation of his punishment, Brady v. Maryland, 373 US 83, 87 (1963), and “irrespective of the good faith or bad faith of the prosecution.” Brady

  1. Maryland, 373 US 83, 87 (1963).

The Government has a duty to disclose any favorable evidence which could be used at trial “. . . or in obtaining further evidence.” Giles v. Maryland, 386 US 66, 74 (1963). Such favorable evidence need not be competent evidence, admissible at trial. US v. Gleason, 265 F. Supp. 850, 886 (S.D.N.Y. 1967).



The test for determining whether particular evidence is favorable has been held to be whether the undisclosed material “…might have led the jury to entertain a reasonable doubt” regarding the defendant’s guilt or might have altered his punishment.

See                  Levin v. Katzenback, 363 F.2d 287, 292 (D.C. Cir. 1966);

Cannon v. Alabama, 558 F.2d 1211, 1216 (5th Cir. 1977)

(stating “[w]e must assess the evidence’s impact on a reasonable fact finder.”);

US v. Agurs, 427 US 97, 111 (1976);

Silk-Nauni v. Fields, 676 F. Supp. 1076 (W.D. Okla. 1987) (noting police officer’s statement showing inconsistencies in the sequence of events leading up to the shooting charged must be revealed).

But see            US v. Biaggi, 674 F. Supp. 1034 (S.D.N.Y. 1987)

(stating defendant was not entitled to production of evidence implicating attorney general in the bribery of a congressman where the same did not necessarily exonerate the defendant).


The Supreme Court has recently reiterated that the prosecution’s failure to disclose favorable evidence requires reversal only if the undisclosed evidence was “material”. That is, disclosure would have, within “reasonable probability,” effected the result of the proceeding. US

  1. Bagley, 105 S.Ct. 3375 (1985); Delaware v. Van Arsdale, 106 S.Ct. 1431 (1986) (stating harmless error analysis applies to denial of cross-examination of informant for bias); US v. Peltier, 800 F.2d 722 (8th Cir. 1986) (noting a “possibility” is not enough).


The Government’s duty to disclose favorable evidence to the accused should not be dependaent upon any request by the defense, at least not where the defendant is not aware of the existencde of such evidence. US ex rel. Meers v. Wilkins, 326 F.2d 155 (2d Cir. 1964); Barbee v. Warden, 331 F.2d 842 (4th Cir. 1964); Thompson v. Uye, 221 F.2d 763 (3rd Cir. 1955); Ashley v. Texas, 319 F.2d 80 (5th Cir. 1963). See also US v. Agurs, 427 US 97, 106-07 (1976) (holding by the Supreme Court that unless a “specific and relevant” request is made upon the government the exculpatory evidence must be “obviously exculpatory,” to bring Brady into play).

“In Brady, the request was specific. It gave the prosecutor notice of exactly what the defense desired . . . When the prosecutor receives a specific request, the failure to make any response is seldom, if ever, excusable.

In many cases, however, exculpatory information in the possession of the prosecutor may be unknown to defense counsel. In such a situation he may make no request at all, or possibly ask for “all Brady material” or for “anything exculpatory.” Such a request really gives the prosecutor no better notice than if no request is made. If there is a duty to respond to a general request of that kind, it must derive from the obviously exculpatory character of certain evidence in the hands of the prosecutor. But if the evidence is so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce, that duty should equally arise even if no request is made.  Whether we focus on the desirability of a precise definition of the prosecutor’s duty or on the potential harm to the defendant, we conclude that there is no significant difference between cases in which there has been merely a general request for exculpatory matter and cases, like the one we must now decide, in which there has been no request at all.” US v. Agurs, 427 US 97, 106-07 (1976).

However, there should be no requirement that an accused’s request be any more specific than his knowledge of the existence of such evidence would allow, absent express knowledge of the precise nature of the exculpatory evidence. Sitters v. Estelle, 651 F.2d 1074, 1077 (5th Cir. 1981) (stating “[I]n the case before us, we find that the defense specifically requested the prosecution to produce ‘the offense reports and any other written statements’ dealing with this case. The petitioner could not have been more specific absent express knowledge of (the) reports”).

Your Brady Motion should be as specific as possible with respect to the items sought (e.g. names, addresses, and statements of witnesses to the offense unable to identify the defendant). However, the very nature of the Brady rule makes a particularized request in many instances a practical impossibility.

“If the defense does now know of the existence of the evidence, it may not be able to request its production. A murder trial- indeed any criminal proceeding- is not a sporting event.” (Fortas, J., concurring). Giles v. Maryland, 386 US 66 (1967). Cf. US v. Agurs, 427 US 97 (1976).


The Supreme Court has also held that “favorable” evidence requiring disclosure under Brady includes “impeaching” as well as purely exculpatory evidence.

US v. Bagley, 105 S.Ct. 3375 (1985);

Williams v. Dutton, 400 F.2d 797 (5th Cir. 1968) (noting evidence “favorable to the accused either direct or impeaching”);

Giglio v. US, 405 US 150 (1972);

Giles v. Maryland, 386 US 66, 76 (1967);

US v. Poole, 379 F.2d 828 (7th Cir. 1967);

US v. Miller, 411 F.2d 825 (2d Cir. 1969);

US ex rel Smith v. Fairman, 769 F.2d 386 (10th Cir. 1976);

Johnson v. Folino, 705 F.3d 117 (3d Cir. 2013);

US v. Ben M. Hogan Co., Inc., No. 84-1757 (8th Cir. 1985);

Carter v. Rafferty, 826 F.2d 1299 (3rd Cir. 1987) (stating that state failed to disclose evidence that would destroy State’s main witness).

While some courts have indicated that the test for determining whether withholding favorable evidence may differ depending upon whether such evidence is directly exculpatory or merely impeaching, Garrison v. Maggio, 540 F.2d 1271, under the questionable rationale that:

“Requiring a prosecutor to disclose substantive evidence always enhances the search for truth and maintains or increases the amount of evidence available to the trier of fact. But requiring a the prosecutor to disclose impeachment matter . . . entails the risk that government witnesses will be less open with the prosecutor or may even refuse to testify voluntarily. Thus forcing disclosure of impeachment matter may actually inhibit a full presentation to the trier of fact.”

The Supreme Court has recently held that there is no such distinction for Brady purposes between exculpatory and impeaching testimony.

US v. Bagley, 105 S.Ct. 3375 (1985);

US v. Ben M. Hogan Co., Inc., No. 84-1757 (8th Cir. 1985);

US v. McKenzie, 768 F.2d 602 (5th Cir. 1985);

US v. Hickey, 767 F.2d 705 (10th Cir. 1985).


Furthermore, the right to disclosure under Brady should include pre-trial discovery by the defendant, US v. Gleason, 265 F.Supp. 880, 884-85 (S.D.N.Y. 1967) (requiring in-camera inspection prior to trial); US v. Morrison, 43 F.R.D. 516, 520 (N.D. Ill. 1967); US v. Ladd, 48 F.R.D. 166 (D. Alaska, 1969); US v. Ahmad, 53 F.R.D. 186, 193-94 (M.D. Pa. 1971); US v. Partin, 320 F. Supp. 275, 284-85 (E.D. La. 1970); US v. Leta, 60 F.R.D. 127 (D.C. Pa. 1973); US ex rel

Drew v. Myers, 327 F.2d 174 (3d Cir. 1964); ABA Standards, Discovery and Procedure Before Trial, Approved 1970, 2.1.. Contra US v. Leighton, 265 F. Supp, 27, 35 (S.D.N.Y. 1967); Ashley

  1. Texas, 399 F.2d 610, 615 (5th Cir. 1963); US ex rel Butler v. Maroney, 319 F.2d 622 (3d Cir. 1963); US v. American Oil Co., 286 F. Supp. 742, 754 (D. N.S. 1963); US v. More, 439 F.2d 1107, 1108 (6th Cir. 1971).

Certainly pre-trial discovery of Brady materials should be allowed with respect to material which is “obviously exculpatory” or of “such a nature that delay in disclosure would prevent the defendant from effectively using it at trial.” US v. Cobb, 271 F. Supp. 159, 164 (S.D.N.Y. 1967). After all, Brady itself involved a pre-trial request for a co-defendant’s statement.

“[I]t is recognized that there are some categories of exculpatory evidence which would be of little use unless discovered before trial.” US v. Ladd, 48 F.R.D. 266, 267(D. Alaska).

Where exculpatory evidence is contained in a statement of a Government witness, discoverable under the Jencks Act only after the witness has testified, then the Jencks Act’s “…statutory restrictions must be accommodated to the demands of due Process,” and the relevant portions disclosed prior to US v. Gleason, 265 F. Supp. 880, 887 (S.D. N. Y. 1967). Contra US v. Eisenberg, 469 F.2d 156 (8th Cir. 1972).

The obligation to disclose favorable evidence to the accused is that of the Government and failure to disclose such information is not excused merely because the prosecutor did not have actual knowledge of such favorable evidence. Barbee v. Warden, 331 F.2d 842, 846 (4th Cir. 1964); Rhinebart v. Rhay, 440 F.2d 725 (9th Cir.), cert. den., 404 US 825; US v. Bryant, 439 F.2d 642 (D.C. Cir. 1971); US v. Auten, 632 F.2d 478 (5th Cir. 1980) (stating prosecutor cannot “compartmentalize” his information by not inquiring of the “prosecutorial team”).

Certainly upon defense request a prosecutor has an obligation to exercise due diligence to determine if Government agencies have any information favorable to the defendant. MOORE’S FEDERAL PRACTICE:  CRIMINAL § 16.06 [1]; US v. Roberts, 338 F.2d 640, 648 (2d Cir. 1968).

However, it has been held the prosecutor need not go out and seek information favorable to an accused from non-governmental third parties. US v. Burns, 668 F.2d 855 (5th Cir. 1982).



Thus, failure of government counsel to produce evidence held by a state agency, US v. Gatto, 763 F.2d 1040, 1047-48 (9th Cir. 1985), or a hospital, US v. Alderdyce, 787 F.2d 1365 (9th Cir. 1986) have been held not to constitute Brady errors.

Materials and evidence which have been held to constitutionally require disclosure under

Brady v. Maryland include:


Extrajudicial statements of a co-defendant favorable to the accused (indicating that defendant was guilty of murder but not capital murder as he had not pulled the trigger), may be discoverable, Brady v. Maryland, 373 US 83 (1963).


Evidence impeaching government witnesses is discoverable (“…favorable to the accused either direct or impeaching”) Williams v. Dutton, 400 F.2d 797 (5th Cir. 1968); US v. Bagley, 105 S.Ct. 3375 (1985). See also Giglio v. US, 405 US 150 (1972); Giles v. Maryland, 386 US 66, 76 (1967) (noting prior inconsistent statement of rape victim); US v. Chestang, 849 F.2d 528 (11th Cir. 1988) (holding prosecutor had duty to reveal the existence of a letter stating that the government witness would not be prosecuted for the very conspiracy for which the defendant was charged); but it was not an abuse of discretion to deny the motion to discovery because defendant heard of “deal” and effectively cross-examined witness regarding the same). Cf. US v. Kehm, 799

F.2d 354 (7th Cir. 1986) (noting fact that government witness had faulty recollection of facts later testified to at trial); Levin v. Clark, 408 F.2d 1209 (D.C. Cir. 1967); US v. Poole, 379 F.2d 828 (7th Cir. 1967); US v. Miller, 411 F.2d 825 (2d Cir. 1969).


US v. Auten, 632 F.2d 478 (5th Cir. 1980);

US v. Alvarez-Lopez, 559 F.2d 1155 (5th Cir. 1977).


Prior sexual relations by a prosecutrix in a rape case, Giles v. Maryland, 386 US 66 (1967) (noted remanded for further proceedings). Psychiatric reports indicating the defendant’s insanity. Ashley v. Texas, 319 F.2d 80 (5th Cir. 1963) (suggesting may be discoverable as Brady material); Coppolinio v. Helpern, 266 F. Supp. 930 (S.D.N.Y. 1967) (stating evidence of a witness’ unstable mental condition); Alcorta v. Texas, 355 US 28 (1957) (noting information that prosecution’s key witness was the paramour of the defendant’s murdered wife). Evidence of government witness’ prior narcotic habit, US v. Fowler, 465 F.2d 664 (D.C. Cir. 1972).


Government witness’ personnel file may be discoverable, US v. Gross, 603 F.2d 757, 759 (9th Cir. 1979) (stating government agent disciplined regarding issue present in Defendant’s case); US v. Garrett, 542 F.2d 23, 27 (6th Cir. 1976) (stating accused entitled to personnel file of police officer who sold defendant drugs, where he was later suspended for suspected drug use); US v. Deutsch, 475 F.2d 55, 57-58 (5th Cir. 1973), overruled on other grounds by U.S. v. Henry, 749 F.2d 203 (5th Cir. 1984); US v. Austin, 492 F. Supp. 502, 505-06 (N.D. Ill. 1980).


Medical examination disclosing no evidence that kidnap victim had been sexually assaulted is producible. US v. Poole, 379 F.2d 648 (7th Cir. 1967).


Eyewitness’ oral statement that gave description which differed from defendant’s appearance (“defendant’s complexion was too dark for him to have been the man she saw”). Jackson v. Wainwright, 390 F.2d 288 (5th Cir. 1968), cert. den., 593 US 180. Fact that substance on defendant’s shorts had been analyzed to be paint, not blood. Miller v. Pate, 386 US 1 (1967); Barbee v. Warden, 331 F.2d 842 (4th Cir. 1964) (stating name of witness who had stated that the defendant was not at the scene of the crime); US ex rel Meers v. Wilkins, 326 F.2d 135 (2d Cir. 1964) (noting identity of any witnesses who can give favorable testimony for accused); US v. Hinkle, 307 F. Supp. 117 (D.D.C. 1969); Lee v. US, 388 F. 2d 737, 739 (9th Cir. 1968).


Eyewitness report indicating self-defense. Butler v. Maroney, 319 F.2d 622 (3d Cir. 1963). Fact that defendant appeared under influence of alcohol shortly after offense, Miller v. Pate, 388 F.2d 737 (9th Cir. 1968).


An accused may be entitled to transcripts of prior proceedings.

US v. Talbert, 706 F.2d 464 (4th Cir. 1983);

US v. Rosales-Lopez, 617 F.2d 1349 (9th Cir. 1980);

Peterson v. US, 351 F.2d 606 (9th Cir. 1965).


The 1975 Advisory Committee Note stated that “[a]lthough the rule does not attempt to indicate when a protective order should be entered, a protective order may be appropriate where there is a reason to believe that a witness would be subject to physical or economic abuse if his identity is revealed.” 8 MOORE’S FEDERAL PRACTICE 16.04(2) at 16-62. See US v. Pelton, 578 F.2d 701 (8th Cir. 1978), cert. den., 99 S.Ct. 451 (holding where a defendant was denied production of her own tape recorded statements when tapes were not used as evidence by Government, contained nothing exculpatory [determined after ex parte in camera inspection], and would have revealed the identities of individuals cooperating with the government, protective order was held appropriate).

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