MAterIAl

InDIFFerenCe:
How Courts Are Impeding
Fair Disclosure In Criminal Cases

No person shall be …
deprived of life, liberty,

or property, without
due process of law
Amendment V, U. S. Constitution

KAtHleen “CooKIe ” rIDolFI
t IFFAny M. J oSlyn
toDD H. F rIeS

Supported by a grant from the Foundation for Criminal Justice.
COPYRIGHT © 2014 N ATIONAL ASSOCIATION OF C RIMINAL D EFENSE LAWYERS
This report is subject to a Creative Commons Attribution-Noncommercial-Nonderivative Work
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and the National Association of Criminal Defense Lawyers is acknowledged as the original publisher
and the copyright holder. For any other form of reproduction, please contact NACDL for permission.
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Phone: 202-872-8600
www.nacdl.org

This publication is available online at
www.nacdl.org/discoveryreform/materialindifference

MAterIAl InDIFFerenCe:
How Courts Are Impeding Fair
Disclosure In Criminal Cases

ProFeSSor KAtHleen “CooKIe” rIDolFI
Director, VERITAS Initiative
Santa Clara University School of Law

tIFFAny M. JoSlyn
Counsel, White Collar Crime Policy
National Association of Criminal Defense Lawyers

toDD H. FrIeS
Pro Bono Research Attorney, VERITAS Initiative
Santa Clara University School of Law

tHeoDore “teD” SIMon gerAlD b. leFCoUrt
President, NACDL President, FCJ
Philadelphia, PA New York, NY

norMAn l. reIMer ProFeSSor lISA A. KloPPenberg
Executive Director, NACDL Dean, Santa Clara University School of Law
Washington, DC Santa Clara, CA

. . . tAble oF ContentS AboUt tHe VerItAS InItIAtIVe . . . . . . Late Disclosure of Favorable Information . . . . . . Late Disclosure Sample Decisions . . . . . . . . . . Due Diligence ‘Rule’ Conclusion . . . . . 15 A. . . . . . . . . . . . . . . . . . . . . . Profile of the Study Sample . . . . . Recurring Issues and Factors Affecting Brady Claim Resolution . . . . . . . . . 29 2. . . . . . . . . . . . . . . . The Due Diligence ‘Rule’ . . . . . . . . . . . . . . . . Study Purpose and Methodology Summary . . . . Problems Created by Late Disclosure . . . . . . . 26 3. . Due Diligence ‘Rule’ Sample Decisions . . . 24 1. . . . 20 C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. . . . . . . . . . . . . . . . viii exeCUtIVe SUMMAry . . . . . . . . . vii ii ForeWorD . . . . Conclusions on the Materiality Standard . . . . . x I. . . . . . . . . . . . . . . . . . . . . Decision Comparisons — Arbitrary Application of the Materiality Standard . . . . . . . . . . . History and Development of the Brady Doctrine . . . . . . . . . . . . . . . . . . . . . . The Materiality Standard as Defined and Applied by the Bench . . . . . . . . . . . . . . . . . . . 30 . . 6 III. . . . . . . . . . . . . . 27 B. . . . . . iv AboUt tHe nAtIonAl ASSoCIAtIon oF CrIMInAl DeFenSe lAWyerS . . Late Disclosure Conclusion . . . . . . . . . . . . . . . . . . . . . . . . Introduction . . . . . . . . . 21 VI. . . . . . . . . vi ACKnoWleDgMentS . . . . . . . . . . . . . . . . . . . . . . . Problems Created by the Due Diligence ‘Rule’ . . . . . . 25 2. 24 A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 1. . . . . . 11 V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Materiality Analysis — An Arbitrary and Unpredictable Approach . . . . . . . v AboUt tHe FoUnDAtIon For CrIMInAl JUStICe . . . . . . . . . . . . . . . . . . . . . . . . . 15 B. . 29 3. . 10 IV. . . . .

. . . . . . . . . . . . . 47 A. 38 iii A. . . . . . . 41 D. . . . . . . . . Legislation Codifying Fair Disclosure . . . . . . . . . . . . Final Thoughts . . . . . . . . . . Summary of Study Findings and Conclusions . . . . . . . . . . . . . Favorability of the Information Implicit in the Facts . . . . . . . . . . . . . . . . . Withholding of Favorable Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. . . . . 39 C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 2. . . 45 IX. 39 B. 1 AUtHor bIogrAPHIeS How Courts Are Impeding Fair Disclosure In Criminal Cases . . . . . . Incentive/Deal Information Sample Decisions . . . . . . 42 VIII. . . 49 C. . . . Incentive/Deal Information . . . . . . . 50 X. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 enDnoteS . . . . . . . . Problems Created by Withholding Incentive/Deal Information . . . . Incentive/Deal Information Conclusion . . . . . . . . . . . . . . . . . . . Courts Acknowledge Exculpatory or Impeachment Value of the Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 B. . . . . . . . . Amendment of Judicial Rules and Policies Governing Disclosure . . . . . Mechanisms for Increasing Fair Disclosure . . . . . . . . . . 33 3. . . . . . . . . . . . 31 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 VII. . . . . . . . . . Courts Expressly State the Information Is Favorable . 55 APPenDIx A — MetHoDology . . . . . . . Court Order for Disclosure of Favorable Information in Criminal Proceedings . . . . .1 APPenDIx b — rePort gloSSAry . . . . Withholding of Favorable Information Conclusion .

For more information contact: VERITAS INITIATIVE Santa Clara University School of Law 500 El Camino Real 408-554-4993 veritasinitiative.edu . The mission of the VERITAS Initiative is to advance the integrity of the justice system through research and data-driven reform. The VERITAS Initiative was founded in the fall of 2010 with the release of the most comprehensive statewide study ever undertaken on prosecutorial misconduct in state and federal courts.scu. The work of the VERITAS Initiative has iv prompted national dialogue on the fair administration of justice and the critical importance of accountability in the justice system. AboU t tHe VerItAS InItIAtIVe oF SAntA ClArA UnIVerSIt y SCHool oF lAW he Veritas Initiative (VERITAS Initiative) is a program of Santa Clara T University School of Law.

amicus curiae advocacy and myriad projects designed to safeguard due process rights and promote a rational and humane criminal justice system.000 members — include private criminal defense lawyers. NACDL’s supporting organization.S. 12th Floor Washington. AboU t tHe nAtIonAl ASSoCIAtIon oF CrIMInAl DeFenSe lAWyerS he National Association of Criminal Defense Lawyers (NACDL) is the T preeminent organization in the United States advancing the goal of the criminal defense bar to ensure justice and due process for persons charged with a crime or wrongdoing. For more information contact: N ATIONAL A SSOCIATION OF CRIMINAL D EFENSE LAWYERS 1660 L Street NW. NACDL is recognized domestically and internationally for its expertise on criminal justice policies and best practices.org How Courts Are Impeding Fair Disclosure In Criminal Cases . local and international affiliate organizations totalling up to 40. Representing thousands of criminal defense attorneys who know firsthand the inadequacies of the current system. NACDL’s core mission is to: Ensure justice and due process for persons accused of crime … Foster the integrity. NACDL’s approximately 10. v Founded in 1958. NACDL has a rich history of promoting education and reform through steadfast support of America’s criminal defense bar. The research and publication of this report was made possible through the support of individual donors and foundations to the Foundation for Criminal Justice. active U. military defense counsel. public defenders. independence and expertise of the criminal defense profession … Promote the proper and fair administration of criminal justice. and law professors committed to preserving fairness in America’s criminal justice system.000 direct members — and 90 state. DC 20036 202-872-8600 www.nacdl.

For more information contact: FOUNDATION FOR CRIMINAL JUSTICE 1660 L Street NW. and its Bylaws.nacdl. The affairs of the FCJ are managed by a Board of Trustees that possesses and exercises all powers granted to the Foundation under the DC Non-Profit Foundation Act. justice is only possible when the accused can effectively test the propriety and legality of the government’s invocation of its power to prosecute. All contributions to the FCJ are tax-deductible. freedom from unreasonable search and seizure. and by preserving these rights through resources. DC 20036 202-872-8600 www. 12th Floor Washington. Justice is denied when someone accused of misconduct lacks universal and timely access to information that could expose a wrongful prosecution. and access to effective counsel. education. The FCJ is incorporated in the District of Columbia as a 501(c)(3) non-profit corporation. fair sentencing. vi The FCJ believes that when someone is accused of misconduct. AboU t tHe FoUnDAtIon For CrIMInAl JUStICe he Foundation for Criminal Justice (FCJ) preserves and promotes the core values T of the American criminal justice system — among them due process. and advocacy tools for the nation’s criminal defense bar.org/foundation . The FCJ pursues this goal by supporting programs to educate the public on the role of these rights and values in a free society. Due process and respect for fundamental constitutional principles must be safeguarded in all criminal prosecutions. the FCJ’s own Articles of Incorporation. training.

Josh Cohen. and support for this project. the officers and directors of NACDL. Daniel Gelb. John Scardamaglia. ACKnoWleDgMentS his study and report are the product of a collaborative project between the T National Association of Criminal Defense Lawyers (NACDL) and the VERITAS Initiative of Santa Clara University School of Law (VERITAS Initiative). and FCJ President Gerald Lefcourt and. but none more than Norman L. Ivan Dominguez. and Shana-Tara Regon. the Foundation for Criminal Justice (FCJ). Santa Clara University Professor Eleanor Walker Willemsen developed and conducted the statistical analyses supporting some of this study’s findings. Professor Gerald Uelmen. Heaton. the FCJ Board of Trustees for their support. insightful analysis. Irwin Schwartz. These practitioners include: Maitreya Badami. and NACDL Graphic Designer Jennifer Waters. and Professor Ellen Yaroshefsky for reviewing drafts of the report and offering candid and helpful feedback. Tracy Miner. Bill Wolf. David Ogden. Bloomberg. Todd Foster. How Courts Are Impeding Fair Disclosure In Criminal Cases . Executive Director of NACDL. Santa Clara University School of Law. Rodger A. Judy Clarke. Melinda Sarafa. The design and publication of this report would not be possible without the creative efforts and hard work of NACDL’s Art Director Catherine Zlomek. Bill Genego. Kyle O’Dowd. Richard Westling. Jean-Jacques “J” Cabou. Despite these acknowledgments. Professor Bennett Gershman. Freelance Graphic Designer Jason Rogers. The authors wish to thank the numerous practitioners who volunteered to review decisions and coding. Bonnie Hoffman. Reimer. Peter Goldberger. Several law clerks and interns from both organizations provided valuable assistance as well. oversight. Daryl A. John Wesley Hall. Professor Ellen Kreitzberg. vii Many individuals provided invaluable guidance. Jodi Thorp. Don Rehkopf. Brett Burns. and Professor Ellen Yaroshefsky. Kloppenberg. Professor Linda Starr. William Buckman. as well as NACDL President Theodore Simon. and critical editorial work provided by Quintin Chatman. The authors would like to thank Dean Lisa A. any errors or omissions in the study or report are solely the responsibility of the authors. Finally. the authors are especially grateful to Rob Cary. The success of this project is possible because of the dedicated efforts. Jessica Seargeant had a key role in the development of the study’s analytic framework and the execution of the decision review process. John “Bud” Ritenour.

In announcing those changes. . but also important or compelling equities of the government. judges have an indispensable role and obligation to oversee the system’s guarantees of fairness and to make sure that its truth. and how the prosecution shares information with the defense also goes directly to the integrity of our legal system. and our institutions of justice. centrally. the rights of accused persons to have access to favorable information. If the prosecution for whatever reason fails to disclose information favorable to the defense. Considering the rules and approaches by which judges accommodate those critical interests is obviously of central importance to the project. Progress here as in any proper policy exercise depends on continued respect for all of the legitimate values at stake. There is no more important judicial role. including (in some cases) concerns about the safety of witnesses or even national security concerns. So certainly.” and spoke about the “truth-seeking role of the prosecutor. And we know from tragic experience that our system — despite its many virtues — is capable of reaching wrong results. we observed that federal prosecutors’ duty is to “seek justice. The issue of fair disclosure relates to the most fundamental criminal justice issue of all — the guilt or innocence of the accused. no matter how hard they try to get their calls right. and its architects T need to stay tirelessly at the project of finding and implementing the right incentives and safeguards. though they are ultimately seekers of justice and the truth. That is obviously an enormously important function. Defense counsel have limited discovery tools at their disposal — and lamentably. Maryland and the issue of prosecutorial disclosure in criminal cases. Responding to the very painful experience of the failed Senator Ted Stevens prosecution. when. and in the overwhelming majority of cases succeed admirably in serving them in letter and spirit. including here. But of course prosecutors have a dual role. the participants in it. often have very limited resources to conduct their own investigations. And advocates pursuing a valid and important goal may tend to view things through a particular lens. in the typical criminal case. In 2009. early in 2010 we implemented changes in viii Department policy meant to provide direction and resources to prosecutors in fulfilling their obligations to disclose favorable information. Whether. the new leadership of the Department of Justice — of which I was a part — confronted a critical aspect of that project.and justice-seeking mission is fulfilled in each case. they are of course tasked as a primary matter with seeking convictions of those they believe are guilty of crimes. fundamental issues relating to Brady v. this may well mean that it never comes to light. ForeWorD he criminal justice system is always a work in progress. No greater harm can be done by our criminal justice system than conviction of innocent people.” I believe today as I did then that the Department’s lawyers are dedicated to these principles.

ix David W. Government and Regulatory Litigation Group. Wilmer Cutler Pickering Hale and Dorr LLP. But by focusing on the shape of legal rules. Deputy Attorney General of the United States.I do not hold myself out as sufficiently expert in the case law or the methodology to have an informed opinion about all of this study’s findings and conclusions. I do believe that this paper contributes to our urgent and permanent collective project of seeking a criminal justice system with incentives and safeguards that best allow the government to obtain convictions of the perpetrators of crimes while protecting innocent people from wrongful conviction. I may have disagreed with some of them in the past. and by connecting its prescriptions to data. In an official role. 2009-2010 How Courts Are Impeding Fair Disclosure In Criminal Cases . ogden Chair.

For the accused. information that is favorable to their defense. Maryland. Rather than look at the prosecution. they worked to build cases against them while ignoring information which tended to undercut their own view of the defendants’ guilt. The prosecutors in these cases possessed information favorable to the defense but failed to disclose it. Many have heard about the problem of prosecutors engaging in misconduct by failing to disclose favorable information. information that is favorable to their defense. NACDL and the VERITAS Initiative ask: What role does judicial review play in the disclosure of favorable information to the accused? To answer that question. accused persons are convicted without ever having access to. but countless others deprived of favorable information remain incarcerated or stained with a criminal record. The U. when it declared that failure to disclose favorable information violates the constitution when that information is material. let alone an opportunity to present. This guarantee. the authors took a random sample of Brady claims litigated in federal courts over a five-year period and assessed the quality and consistency of judicial review of the claims. the federal system in which Senator Stevens was In courtrooms across the nation. The focus of such scholarship is typically on the individual prosecutor’s behavior or the culture and policies of a particular prosecution office. Despite the reform that Morton’s ordeal spawned in Texas. Both Senator Stevens and Michael Morton prevailed in clearing their own names. the judiciary plays a significant role in impeding fair disclosure of favorable information. however. The frequency with which these violations occur and the role they play in wrongful convictions prompted the National Association of Criminal Defense Lawyers (NACDL) and the VERITAS Initiative of Santa Clara University School of Law (VERITAS Initiative) to come together to look at the problem from a different perspective. Supreme Court recognized the importance of this guarantee over 50 years ago. The high-profile cases of Senator Theodore “Ted” Stevens and Michael Morton put x a spotlight on this unfulfilled promise. Guided by an extensive methodology. In courtrooms across the nation. fair process includes not only the right to put on a defense. The sample included 620 decisions in which a court ruled on the merits of a Brady claim. Critical to the accused is the guarantee of fair process. accused prosecuted remains the same and disclosure persons are convicted without ever having violations continue in state and federal cases access to. in Brady v. the review of these decisions included evaluating the materiality analysis employed by the courts and a variety of other factors and characteristics. . with this study. Convinced of the defendants’ guilt. The firsthand review of each decision in the sample and statistical analysis of the data as a whole reveals a variety of problems and answers the question motivating the study — through judicial review. let alone an opportunity to present. but to put on a complete defense. nationwide. is frequently unmet.S.exeCUtIVe SUMMAry he integrity of the criminal justice system relies on the guarantees made to T the actors operating within it.

Only one court. in only 14 percent of these decisions 20% did the court deem the undisclosed favorable information material and find that a Brady violation had occurred. held that the prosecution’s late disclosure violated Brady. and statistical withheld favorable information. The majority of these decisions in which the prosecution late disclosures occurred during trial. prosecutors failed to disclose favorable information in 40% 145. The The defense lost in 90 percent of the study included 65 decisions in which the prosecution disclosed favorable information late. the prejudice to the defense can be the same as if the prosecution did not disclose the information at all. The defense prevailed in just 21 of these 145 decisions — that is. analysis reveals that statements. analyzed. Two courts could have Information Decisions the same favorable information before them in remarkably similar factual contexts and come out by Brady Claim Resolution differently on the question of materiality. EXECUTIVE SUMMARY KEY FINDINGS u The Materiality Standard Produces Arbitrary Results and Overwhelmingly Favors the Prosecution The authors reviewed. 100% xi 80% Despite the arbitrary application of the materiality 86% standard. This process revealed that courts apply the materiality Withheld Favorable standard in an arbitrary manner. rather than other types of information. out of these 65 decisions. are more likely to be disclosed late. Of the 620 decisions in the Study. and coded each of the 620 decisions that decided a Brady claim on the merits. the data shows that it overwhelmingly favors 60% the prosecution. In the other 64 decisions. the court rejected the notion that the prejudice to the defense was sufficient to constitute a Brady violation. How Courts Are Impeding Fair Disclosure In Criminal Cases . u Late Disclosure of Favorable Information Is Almost Never a Brady Violation When the prosecution discloses favorable information late. 14% 0% The courts ruled in favor of the prosecution in the No Violation Violation (124) (21) remaining 86 percent of these decisions.

courts sometimes use the due diligence rule to excuse this failure and deny a defendant’s Brady claim. . Despite being just 16 percent of the Study Sample. disclosure of favorable information. the due diligence rule runs counter to the intentional or not. decisions involving incentive or deal information make up over one-third of the decisions resolved by a finding that Brady was violated. u Courts ‘burden Shift’ When they employ the Due Diligence ‘rule’ Against the Defendant When the prosecution fails to disclose favorable information. This occurred in just over three percent of the decisions. of discouraging guarantee of fair process. By treating the conclusion that the manner in which the discovery process like a game of hide-and- courts review Brady claims has the result. and to the defense’s failure to discover This study provides empirical support for the favorable information on its own. Further. exeCUtIVe SUMMAry u the Prosecution Almost Always Withheld Favorable Wins When It Withholds Information Decisions Favorable Information by Brady Claim Resolution The prosecution prevailed on the question of materiality 100% in 86 percent of the decisions in which it failed to disclose favorable information. and its odds improved 80% 90% when late disclosure decisions are included. Employing the due diligence rule shifts the court’s inquiry away from the prosecution’s failure to satisfy its disclosure obligation. 20% u Withholding Incentive or Deal 0% 10% No Violation Violation (188) (22) Information Is More likely to result in Figure 11 a Brady Violation Finding The defense was more likely to prevail on its Brady claim when the information at issue was an incentive or deal for a witness to testify. seek. In 90 percent Brady Violation of the decisions in which the prosecution withheld No Violation 60% favorable information — disclosed it late or never at all — the defense lost. The courts held that the prosecution’s xii 40% withholding of favorable information violated Brady in just 10 percent of these decisions. the statistical analysis revealed a strong correlation between this type of impeachment information and findings that the prosecution violated Brady.

any attempt to address the problems identified in this study must come from the judiciary or. or even the entire judicial system. The weight of legislative action is greater should it fail to act.8(d). Thus. The Ethical Rule Order is one way that individual defense attorneys and judges can obtain immediate results in a particular criminal proceeding. Nearly two-thirds of the death penalty decisions resulted in a finding that the withheld information was not material. than any other mechanism — it is an This report offers three reform mechanisms enforceable message that fair disclosure is a that can be applied by the judicial and requisite to fair process. only one-third of all the decisions studied were resolved with a not material finding. known as an Ethical Rule Order. while simultaneously encouraging broader change in disclosure practices and helping to prevent the problematic practices identified by this study. How Courts Are Impeding Fair Disclosure In Criminal Cases . And. defense attorneys should request. intentional or not. but only 34 percent of all the decisions studied. withheld favorable information was more likely to be found not material. and defense access to. If defense attorneys and judges make this order the norm for a particular court. orders for the prosecution to disclose all favorable information in accord with ABA Model Rule 3. would bind prosecutors and make it possible for judges to sanction those prosecutors who fail to comply. legislative branches at both the state and federal levels. This is even more effective when judges or courts issue a standing order for all their cases. the legislature. and judges should grant. This order. exeCUtIVe SUMMAry u Death Penalty Decisions Are More likely to Involve Withheld Favorable Information and to be resolved With a ‘not Material’ Finding Favorable information was withheld or disclosed late by the prosecution in 53 percent of the decisions involving the death penalty. u ethical rule order — A Court order for Disclosure of Favorable Information in Criminal Proceedings In each case. By comparison. favorable information. it will serve to deter willful non-disclosure. in death penalty decisions. this study provides empirical support for the conclusion that the manner in which courts review Brady claims has the result. jurisdiction. of discouraging prosecutors from disclosing information that does not meet the high bar of materiality. More specifically. xiii Mechanisms for Increasing Disclosure of Favorable Information The judiciary plays a significant role in the fair disclosure of.

as in the federal system. Legislation that sets forth a clear mandate for disclosure of favorable information. . have taken the same incorrect position — prosecutors need only disclose as much as necessary to ensure the conviction survives appeal. Codifying a fair disclosure process could increase defense access to favorable information and help prevent the problems identified in this study. the Supreme Court held that non-disclosure only violates the Constitution when the information is material. a group of judges that are representative of the various courts within the system. As a result. the judicial branch sets forth the rules that regulate the prosecution’s disclosure obligations. In many jurisdictions. u legislation Codifying Fair Disclosure The most effective mechanism for reform of prosecutorial disclosure practices could come through the legislative branch. These rules are often set by the highest court in a jurisdiction or. Conclusion Courts are impeding fair disclosure in criminal cases. many prosecutor offices. as well as comprehensive rules for the disclosure process. which are then enforced by every court within that jurisdiction.exeCUtIVe SUMMAry u Amendment of Judicial rules and Policies governing Disclosure Another mechanism for increasing fair disclosure and preventing the type of arbitrary practices evidenced by this study is amendment of judicial rules. Despite ethical rules that set forth a disclosure obligation far broader than Brady. The weight of legislative action is greater than any other mechanism — it is an enforceable message that fair disclosure is a requisite to fair process. Further. Amendment of xiv court rules and policies to require fair disclosure of information could decrease the sort of prosecutorial gamesmanship that has become commonplace and help restore balance to the justice system. With Brady. encouraging prosecutors to disclose as little favorable information as possible. judicial branches nationwide are well-positioned to respond to the failure of the prosecution to disclose favorable information in a timely fashion. would have a significant system-wide impact. and in so doing. and even some courts. This holding established a post-trial standard of review that many prosecutors have adopted as the pre-trial standard governing their disclosure obligations. enactment of this reform may deter prosecutorial gamesmanship in the discovery context and decrease Brady claims system-wide.

prosecutors are acting to the detriment of the defense and fair process. This study demonstrates that the odds are in favor of prosecutors who withhold favorable information. such as that embodied in the ABA Model Rules. the status quo of material indifference must yield to the guarantee of fair process. reform is necessary. the judiciary. they will continue impeding disclosure of favorable information. Strict judicial adherence to the materiality standard without regard to the integrity of the process is a direct endorsement of non-disclosure of favorable information. and reject the premise that a prosecution’s obligation is measured solely by Brady. xv Until courts embrace a broader disclosure obligation. Taking their cues from the courts. Prosecutors are ill-equipped to apply a post-trial standard to a pre-trial obligation without the benefit of the defense perspective and with their natural biases as zealous advocates. How Courts Are Impeding Fair Disclosure In Criminal Cases . The status quo of material indifference must yield to the guarantee of fair process. Whether it comes through individual courts. Courts are rarely finding that the withholding of favorable information is prejudicial enough to constitute a Brady violation. exeCUtIVe SUMMAry Across the nation prosecutors are guiding their disclosure obligations by a post-trial standard that some courts have decried as unworkable in the pre-trial context. or legislative action.

S. Constitution . without due process of law Amendment V. U. No person shall be … deprived of life. or property. liberty.

and John Thompson have shaken public confidence in the justice system and elevated the issue of Brady violations in the public arena. Focusing on the courts. NACDL and the VERITAS Initiative acknowledge that this study only scratches the surface of this problem. ramifications extend beyond the right of the accused to present a defense. These cases and others like them show how devastating the consequences can be when favorable information is not disclosed to those facing criminal charges.2 Recent high profile wrongful convictions such as those of the late U. When deprived of favorable information. IntroDUCtIon* ifty years ago in Brady v. Michael Morton. Maryland is impossible to answer because. the integrity of the entire system is at stake. The question of how often prosecutors violate Brady v. One can fairly assume that for every wrongfully convicted individual who has been vindicated. this information extends beyond the question of study seeks to understand the particular impact of guilt or innocence.1 Yet. The authors took a random sample of Brady claims litigated in federal courts over a five-year period and assessed the quality and consistency of judicial The impact of withholding favorable review of such claims. without becoming aware of all the favorable information actually in existence. Maryland. the right of an accused to due process is violated and the role of the judge and jury as fact-finder is compromised. And. and conferences. Supreme Court recognized the constitutional F importance of providing a person accused of a crime with favorable information and declared that failure to do so violates due process when that information is “material” either to guilt or punishment. The impact of withholding favorable information extends beyond the question of guilt or innocence. scholarly articles. Any word or phrase contained in the Report Glossary will appear in bold the first time it appears in the report text. the U. . At the outset. the withholding of Brady material is hidden. The number of cases in which a judge or jury may have convicted an innocent person. and withheld information may never surface. When this occurs. studies over the last 10 years have conclusively demonstrated that this duty is often left unfulfilled. the judicial review on defendants’ access to favorable integrity of the entire system is at stake.S. When this occurs. by its very nature.3 1 After over 50 years of discussion. information in criminal cases.I. *The Report Glossary is located at Appendix B. Senator Ted Stevens. debate. “state and federal criminal justice systems appear less than adequate in assuring the prosecutorial disclosure obligations are met. there are countless others whose innocence remains invisible to the system.”4 The growing visibility of wrongful convictions and the countless anecdotes of prosecutors withholding favorable information prompted the National Association of Criminal Defense Lawyers (NACDL) and the VERITAS Initiative of Santa Clara University School of Law (VERITAS Initiative) to undertake the study that is the subject of this report. remains unknown.S.

that the government had withheld.17 When widespread public attention. Two years later.20 In preparation for this second murder someone other than Thompson committed trial. conclusively established that someone other than On Dec. or it is execution date when a defense investigator made a not relevant to a case.000 reward for information leading to a court immediately stayed his execution. When elevating the homicide to a capital case and deter researchers for the Innocence Project looked at Thompson from testifying at the murder trial in DNA exoneration cases5 involving documented his defense.12 Prosecutors brought a middle-class Texas suburb when his life took a .8 Soon thereafter.7 The murder received withheld these test results from the defense. Ray Liuzza.23 and assaulted. was robbed and years. the police arrested John Thompson and prosecutors For the next three years.21 The jury took only 35 minutes to return a verdict of not guilty. Thompson police investigation and the Liuzza family offering was exonerated in the carjacking case and the trial a $15. in another part of the Thompson in the felony carjacking case before country. 6.10 Based on a news photo connected to the Liuzza murder. an executive from a Thompson committed the carjacking. She learned that the carjacking convicted because of the failure to disclose perpetrator’s blood was found on one of the victims’ 2 favorable information may never get justice.15 Although the authorities had tested the blood as part of their investigation. the new orleans District testify … at the murder trial.6 death row.11 For strategic public housing project in New Orleans at the time reasons. 14 of which he spent on have made a difference in the outcome of the case. prosecutors obtained a conviction against of his arrest. Thompson was facing his seventh Unfortunately.9 for and gained a reversal in the murder case on the ground that the carjacking conviction had “unconstitutionally deprived [him] of his right to For 18 years. the defense uncovered even more information the carjacking. many individuals wrongly critical discovery. the New Orleans District Attorney had murdered near his home. 28. The test results happen when favorable information is not disclosed. The failure to timely produce favorable the carjacking charge to trial first because the information to the defense is also a significant felony conviction could serve as the basis for factor in the conviction of innocent people.18 conviction. John Thompson was scene. John Thompson fought charged him with the murder.14 misconduct. pants leg. 42 percent alleged Brady violations — non-disclosure of favorable information that would After 18 years in prison. three teenagers were carjacked at gunpoint vindicated and released. the Attorney had withheld from the defense test prosecutors retried Thompson for the Liuzza results that conclusively established murder. not far from the Liuzza murder After nearly two decades. 32-year-old Michael Morton was living in trying him for the murder.16 For 18 prominent New Orleans family. acting on a tip.22 On Dec. information that bolstered Thompson’s defense. the teens identified their John Thompson was 22 years old and living in a carjacker as John Thompson. the results were The case of John Thompson illustrates what can not disclosed to the defense.13 Thompson was ultimately convicted appeals and/or civil suits alleging prosecutorial of the Liuzza murder and sentenced to death. leading to an intensive the blood test results became known. 1984.”19 Undeterred. when DNA is unavailable. 1984.

”34 In the court order following the in a green van had repeatedly parked on the street proceeding. every single thing falls Mortons’ neighbors who told the police that a man apart. during a formal “Court of When the defense team raised the possibility that Inquiry. Eric was able to describe the crime another life — Debra Master Baker in Travis scene and murder in great detail. 1986. prosecutors provided the reviewing a prosecutor’s conduct.26 — In re Honorable Ken Anderson The post-conviction DNA litigation unveiled (A Court of Inquiry) information even more disturbing than the conviction of an innocent man. had attacked his mother Meanwhile.” innocence25 and he was exonerated.33 information never reached the defense. In a “This court cannot think of a more intentionally deeply disturbing chain of events. the man who was ultimately convicted of Kirkpatrick what he saw.28 Despite the trauma of killing Christine Morton is suspected of taking the event. “[w]ithout that. Morton watched his relationship with and that his “Daddy” was “not home” when it his son Eric grow distant and eventually fall into happened. Michael Morton spent 25 years behind uneven playing field for a defendant facing a bars before DNA evidence established his murder charge and life sentence.” a rare legal proceeding for the purpose of something was amiss. the three-year-old son of Michael and As Morton sat in prison for a crime he did not Christine Morton. Absent the presence of government had obtained that conviction by DNA evidence in Morton’s case. This murder charge and life sentence. Texas — in the same brutal manner. Eric Morton. this other failing to disclose favorable information to the undisclosed information would have remained 3 defense in violation of Brady v.”35 information was withheld from the defense and intentionally suppressed during the trial court’s How Courts Are Impeding Fair Disclosure In Criminal Cases . Morton was harmful act than a prosecutor’s conscious choice arrested. told his grandmother Rita commit. Maryland.24 On Aug. although it was information went on to win election to become a recorded in the notes of the lead investigator. it revealed that the pre-trial discovery inquiry. two critical pieces of information — young Eric’s he realizes “that there needs to be accountability” eyewitness account and the statements of the because. Morton’s wife was brutally murdered in their home. He stated that a County.29 Eric’s grandmother brought this disarray.31 This information would harmful act than a prosecutor’s conscious choice have provided material support to Michael to hide mitigating evidence so as to create an Morton’s defense that an intruder came into his uneven playing field for a defendant facing a home and brutally victimized his wife.27 Eleven hidden forever. 13.30 In February 2011. Morton trial judge with a sealed file of that investigator’s explained to the court that although he does not notes and reports. the Williamson County District Judge. The sealed file did not include seek “revenge” or “anything ill” for the prosecutor.” not his father.similarly tragic turn. days after witnessing his mother’s murder. while the prosecutor who withheld this information to the police and.32 “monster. the presiding judge wrote: “This behind the Mortons’ home and walked off into the court cannot think of a more intentionally nearby wooded area. charged. and ultimately convicted of her to hide mitigating evidence so as to create an murder.

through a miscarriage of justice. Theodore Fulton “Ted” Stevens served in the U.44 Granting the a federal grand jury indicted Senator Stevens on government’s motion for dismissal. that wreckage that can result from a system that fails to Senator Stevens was finally exonerated. government’s conduct. The problem is not limited by race or From the start.43 The Brady violations. was not “Brady material. It was From the start.”42 Rather. Prosecutors argued that the testimony traditionally afforded a dedicated public servant. stated that he 4 material involves a longtime U. He was the longest-serving The government did not give this statement to the Republican senator. These are just a few examples of the Brady violations exacted upon Senator Stevens. during the trial the majority whip of the Senate twice. Department of Justice lawyers. Despite this provide the defense with grand jury testimony of lifelong commitment to public service. District seven counts of criminal ethics violations for failing Court Judge Emmet G. “‘There to report gifts related to renovations of his home. a white man living in Alaska electorate replaced their senior senator with middle-class suburbs — their stories are eerily his challenger. Bill Allen. construction bills if they were sent to him. Senator Williams in which he reiterated the exculpatory Stevens’ career did not end with the dignity statements. and Morton. and shortly before his tragic passing. an African-American man living in counts and. the public housing. the prosecution of Senator Stevens class and transcends types of crime and the was permeated with Brady violations.36 was never a judgment of conviction in this case. from December 1968 to constructions bills was the main issue in the case. for example.S. senator and believed Senator Stevens would have paid allegations of corruption. Sullivan stated. and made by renovation foreman Rocky Williams being only the third senator to hold the title of during pre-trial interviews. the prosecution of only after a whistleblower pulled back the curtain on this unjust prosecution that the senator’s Senator Stevens was permeated with indictment was eventually dismissed. 2008. holding the position of defense. approximately one week later. In fact. They also refused to president pro tempore emeritus. his service was taken from him. following a review of the case by a new team of On July 29.37 It was only after this electoral similar.39 one of the most notable and recent examples of the During a pre-trial interview. Despite their different backgrounds — 27. impossible for the senator to receive a fair trial. along with his reputation. Maintaining his innocence and attempting to clear The jury’s verdict is being set aside and has no legal his name prior to Election Day. They demonstrate the significant human defeat.S. noting that “[t]he . from Attorney General Eric Holder himself. the senator effect. the jury returned a verdict of guilty on all Thompson.40 This statement was crucial information for the defense. making it impossible for decision to move for dismissal ultimately came the senator to receive a fair trial.’”45 He then ordered an investigation into the invoked his right to a speedy trial by jury. serving as government also withheld exculpatory statements president pro tempore of the Senate once. as the senator’s knowledge of and intent to pay Senate for over 40 years. U. In addition. the damage caused by the withholding of Brady government’s star witness.S.38 ensure defendants access to information favorable to their case. On Oct. making it boundaries of state and federal jurisdiction.41 January 2009. during his re-election campaign. 2008.

can line distinguishing ethical behavior from account for such cases. the report concludes with In support of that objective. as opposed to the prosecutors and the and no methodology. This unfortunate findings. with the objective of the study: to understand the role judicial review plays in shaping disclosure of The Thompson. The findings demonstrate Maryland requires and what actually happens in that the deep concerns motivating the study are. the report also provides a brief history reality is in part what motivates this study. exceptional not only because the undisclosed information surfaced. no matter how elaborate. the government and produces arbitrary results. and Stevens cases are favorable information in criminal cases. As such. the surfaces. the study applies a a discussion of various reform proposals and how. Maryland. Morton. Any of the development of Brady claims and the attempt to alter the status quo requires an gradual erosion of due process rights under Brady understanding of the role judicial review plays in v. it is rare for the justice system Study Sample. the data reveals study was to review a sufficient number of court several troubling. detailed analytic methodology to a random sample if implemented. defense? These questions focus on the courts and it is constrained by the undeniable fact that an judicial review of claims brought under Brady v. all the more questions: (1) To what extent are courts consistent irreparable due to his tragic passing. For those cases that are to assess the system as a whole. How Courts Are Impeding Fair Disclosure In Criminal Cases . there is much to be learned. in the use and application of the materiality standard when deciding Brady claims? (2) What Thompson. In light of these findings. favorable information being withheld from the Although this study has the benefit of their stories. This is consistent visible.government’s ill-gotten verdict in the case not only even when undisclosed information cost that public official his bid for re-election. however. Even when undisclosed central themes that emerged from review of the information surfaces. as well as the methodology shaping the dynamic between what Brady v. As a prelude to the study’s to afford the defendant a remedy. the primary objective of this in fact. employed in the study. and Stevens were all ultimately other issues or factors are there underlying courts’ vindicated because they were able to discover resolutions of Brady claims? (3) To what extent is undisclosed information that proved their claims. Specifically. well-founded. Rather than critique will be incomplete — the full scope of the problem individual actors within the system. 5 unknowable number of Brady violations are hidden Maryland. but because courts concluded The report that follows attempts to set forth the that the non-disclosures amounted to answers to these questions and to document constitutional violations.”46 The investigation could not. recurring issues regarding how decisions in order to provide a fair assessment of courts analyze Brady claims and that application the quality and consistency of judicial review by of the materiality standard overwhelmingly favors courts deciding claims under Brady v. Maryland. it is rare for the justice system to results of that election tipped the balance of power afford the defendant a remedy. in the United States Senate. such proposals would help of Brady claims litigated in federal courts over a prevent these problems and increase fair five year-period47 in order to answer the following disclosure in the future. Morton. however. undo the damage to the senator’s reputation and legacy. the study seeks is simply unascertainable. practice. Any study of Brady violations prosecutorial misconduct.

the accused must show that the information (1) was not disclosed by the prosecution. “the Supreme Court to constitute a Brady violation. irrespective of the good faith or bad faith of the prosecution. then a Brady violation has occurred and the constitutional due process right of the accused has been violated. Upon seeking post-conviction relief. Only after an unsuccessful appeal did he learn the prosecution had withheld a statement that could have mitigated his 6 death sentence.50 if the undisclosed information is not deemed material.53 In Strickler. but whether in its absence he received a fair trial.S. the state appeals court held that “suppression of the evidence by the prosecution denied [Brady] due process of law.52 and (3) is material either to guilt or punishment.”48 John L. If all three requirements are met.’”55 Despite the prominence of the Bagley and Kyles standards. Greene. then there is insufficient prejudice With this decision. No matter how favorable to the defense. the Court held that information is material only if “there is a reasonable probability that the result of the trial would have been different if the suppressed [evidence] had been disclosed to the defense. HIStory AnD DeVeloPMent oF tHe BRADY DoCtrIne n Brady v. not the question of guilt. II. understood as a trial resulting in a verdict worthy of confidence. lower courts sometimes articulate the materiality requirement in different ways that increase or decrease the burden on the accused. The two most common articulations of the materiality standard come from two Supreme Court decisions referenced in Strickler v.”54 Quoting from its decision in Kyles. then there is insufficient prejudice to constitute a Brady violation.S. defendant Brady” and he was entitled to relief.” and remanded the case for retrial of the question of punishment. Supreme Court held that the prosecution has the duty to furnish I favorable information to the accused and that failure to do so “violates due process where the evidence is material either to guilt or to punishment. (2) is favorable to the accused. the U. the U.49 Affirming this decision.56 . the Court further explained that “‘[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence. relying on its decision in Bagley. Brady was convicted of capital murder and sentenced to death. Supreme Court concluded that “the withholding of this particular confession [] was prejudicial to the no matter how favorable to the defense.” To obtain relief under the Brady rule. its contours were not defined until later in subsequent decisions. established an approach to analyze a case retrospectively to determine whether a defendant received a fair enough trial under general due 51 process standards. Maryland. if the undisclosed information is not deemed material. Although the Court established this materiality requirement in the Brady decision.

]59 Brady did not create a right to discovery per se..”60 Professor Alafair Burke.”57 The Brady decision was one in a series of — Professor Alafair burke decisions by the Supreme Court that incorporated important procedural rights for reach of the Brady rule in several specific instances defendants and did so in ringing moral tones. to describe the current permutation of Brady as a hindrance to a At its inception.”65 A prosecution that withholds evidence … which.” concepts of “substantive justice” and “fair trial. “Society wins Process67 right to a fair trial that includes a right to not only when the guilty are convicted but when discovery of favorable information — that is criminal trials are fair. and in subsequent decisions. protection of the oppressed.”58 impeach government witnesses. however.”69 decades.The Brady decision was part of a judicial The current permutation of Brady is a movement led by Justice Oliver Wendell Holmes that expanded criminal due process from the basic hindrance to a “defendant’s access to the kind procedural requirement of “notice and of exculpatory evidence whose disclosure opportunity to be heard. exculpate him or reduce the penalty helps the Court was in other ways moving away from a shape a trial that bears heavily on the broad interpretation of the doctrine to a narrower defendant [and] casts the prosecutor in the definition of materiality and stricter application of role of an architect of a proceeding that does the rule. Douglas wrote.. The Court because they were expressly based on fundamental expanded the reach of Brady to include values like equality. while at the same time it limited its application by “These opinions possess special rhetorical power narrowing the definition of materiality.64 In light of these decisions. if made available.61 offered new hope for the evidence whose disclosure Brady held to be strengthening of fair trial rights.” and underscored his exculpatory or impeaching information of such message by quoting the grand language inscribed importance that if omitted would create “a on the walls of the Department of Justice: “The reasonable doubt of guilt that did not otherwise United States wins its point whenever justice is exist. “Brady Amendment right to due process. would tend to But at the same time. the Court . human dignity. Justice Douglas explained.”68 This narrowing has led at least one scholar.” to the more meaningful Brady held to be fundamental to due process. It expanded the How Courts Are Impeding Fair Disclosure In Criminal Cases . Justice William appear[ed] to be an expanding doctrine into which O. Concluding whether the prosecutor was aware of the the government’s conduct violated Brady’s 14th information.62 information that may be used to privacy.66 The Court did this by driving home that not comport with standards of justice [. through its “defendant’s access to the kind of exculpatory disclosure mandate. done its citizens in the courts. but rather acknowledged a Constitutional Due Further. morality of information not specifically requested by the 7 government. and defendant. the Brady rule.63 and information in the control of government agents regardless of The Brady decision was no exception. In the ensuing fundamental to due process. the Court took Brady in two somewhat opposing directions. injected flexibility to reflect the realities of criminal prosecutions.

Despite the Court’s Through this discussion of “so-called ‘Brady unwillingness to expand a defendant’s due process material. only mandates the disclosure of As the Court has emphasized. and a defendant’s probability that the suppressed evidence corresponding right to access that information. as the determinations prior to conviction. In 1999.’” the Court was actively encouraging right to information not constrained by the prosecutors to turn over non-material favorable “materiality” test. in Court has emphasized. are would have produced a different verdict. The ‘Brady violation’ unless the nondisclosure parameters of a prosecutor’s obligation to disclose was so serious that there is a reasonable favorable information. But the analysis does not end there.”72 Court’s dicta. on multiple occasions. In Formal Opinion 09- evidence — that is. And. to any suppression of 454. it has been reminding prosecutors information. the ABA Standing Committee on Ethics so-called ‘Brady material’ — although.73 not defined entirely by Brady. The Court has. For example. as interpreted in Brady. Greene. the Court referred to this prosecutor discloses more than what is broad disclosure obligation when it distinguished constitutionally required. The Brady standard used by courts following a The prosecutor’s affirmative duty to disclose is conviction is not the rule by which prosecutors separate and apart from the post-trial standard should abide when making disclosure of review embodied in the Brady rule. As we have often observed. Bell. the obligation to disclose evidence favorable to the defense and ethical prosecutor discloses more than may arise more broadly under a what is constitutionally required.70 The Court has long encouraged the “prudent prosecutor to resolve doubtful questions Although the Due Process Clause of the in favor of disclosure. the prudent prosecutor will err on the underscored the difference between what is side of transparency. resolving doubtful required under Brady to sustain a conviction and questions in favor of disclosure. there is never a real the variety of sources governing disclosure . the American Bar Association (ABA) has established a disclosure [T]he term ‘Brady violation’ is sometimes obligation far broader than that recognized by used to refer to any breach of the broad the Department of Justice (DOJ) in its own obligation to disclose exculpatory guidance to prosecutors. and Professional Responsibility acknowledged strictly speaking.”71 Fourteenth Amendment.75 the course an ethical prosecutor must take. between “material” favorable information that must be disclosed under the Due Process Clause These somewhat disparate views on prosecutorial and non-material favorable information that a disclosure obligations are not confined to the prosecutor has a “duty to disclose. prosecutor’s ethical or statutory obligations.74 all along that they are ethically bound under professional rules to a broader disclosure obligation A decade later in Cone v. and the Court has repeatedly said so. the Court provided beyond what the Constitution provides a additional support for this point: 8 defendant. a prudent material evidence. a prudent and ethical Strickler v.

obligations, but held that prosecutors “have a
separate disclosure obligation under Rule 3.8(d) What is clear is that the Brady doctrine
of the Model Rules of Professional Conduct.”76 alone, as it has been circumscribed by the
courts, cannot be relied upon to ensure a
The ABA Model Rules establish an “independent”
defendant’s access to favorable information.
duty, “more demanding than the constitutional case
law, in that it requires the disclosure of evidence or
information favorable to the defense without Because the Supreme Court takes somewhat
regard to the anticipated impact of the evidence or contrary views regarding a prosecutor’s disclosure
information on a trial’s outcome.”77 This duty obligations, the message to prosecutors and to
“requires prosecutors to disclose favorable evidence courts has been confused. Prosecutors have been
so that the defense can decide on its utility.”78 And, told they are constitutionally bound to disclose
unlike the constitutional decisions, the ethics rule only material favorable information yet ethically 9
does not “establish an after-the-fact, outcome- bound to do more. Under a strict reading of
determinative ‘materiality’ test.”79 Brady and its progeny, however, prosecutors can
disclose very little without risk of upsetting the
In contrast, in a Jan. 4, 2010, memo to all DOJ conviction. The lack of clarity from the Court is
prosecutors, Deputy Attorney General David W. evident in the lack of consistency in the practices
Ogden stated that “prosecutors should be aware of prosecutors and in the different ways in which
that [U.S. Attorney’s Manual] Section 9-5.001 lower courts resolve questions of disclosure.
details the Department’s policy regarding the
disclosure of exculpatory and impeachment In addition, the difficulties inherent in the
information and provides for broader disclosures application of Brady’s materiality standard have
than required by Brady and Giglio.”80 Neither the caused some courts to conclude that the standard
Ogden Memo nor the U.S. Attorney’s Manual is simply unworkable in the trial context. For
(USAM), however, currently includes any citation example, Federal District Court Judge Paul L.
to ABA Formal Opinion 09-454 or any ABA rules Friedman noted that the pre-trial judgment of
or standards.81 Despite the broad disclosure materiality is “speculative” and dependent on
obligation referenced in the Ogden Memo, questions that are “unknown or unknowable.”86
disclosure of all favorable information, regardless of What is clear is that the Brady doctrine alone, as
materiality, is not the policy of the Department.82 it has been circumscribed by the courts, cannot
be relied upon to ensure a defendant’s access to
Rather, USAM § 9-5.001(A) states that the favorable information.
“policy is intended to ensure timely disclosure of
an appropriate scope of exculpatory and
impeachment information so as to ensure that
trials are fair.”83 Then, citing Supreme Court case
law, USAM 9-5.001(B) sets forth a prosecutorial
disclosure obligation that focuses primarily on
the concept of “materiality[,]”84 adding that
“ordinarily[] evidence that would not be
admissible at trial need not be disclosed.”85

How Courts Are Impeding Fair Disclosure In Criminal Cases

III. StUDy PUrPoSe AnD
MetHoDology SUMMAry87
he primary objective of this study was to review a sufficient number of judicial decisions in

T order to provide a fair assessment of the quality and consistency of judicial review by courts
deciding claims under Brady v. Maryland. As an initial matter, the research team88 limited
the universe of decisions to those made in federal courts over a defined five-year time period from
August 2007 to August 2012.89 From that group, the Research Team identified over 5,000 decisions
10 in which “Brady v. Maryland” appeared in the decision text and pulled a random selection of those
decisions to arrive at the Study Sample of 1,497 decisions for closer reading, analysis, and coding.90

The Research Team then developed a detailed analytical methodology to provide quantitative answers to
the following three questions:

1. Are courts consistent in the use and application of the materiality standard when
deciding Brady claims?

2. What other issues or factors, if any, influence or underlie courts’ resolutions of Brady claims?

3. To what extent is favorable information being withheld from the defense?

To ensure consistency, the Research Team created an extensive guidance Document91 with step-by-step
instructions on how to analyze and code each decision within the Study Sample. Only the decisions
contained within the Study Sample received analysis and coding, i.e., the Study did not analyze any
subsequent treatment of the decisions by any reviewing courts.

Before discussing the study’s findings, it is important to acknowledge the limitations of the study’s
methodology. First, this research barely scratches the surface of Brady practice and jurisprudence. Brady
violations are by definition hidden and this study examines only those decisions in which a
petitioner/appellant raised a violation claim. Second, this study is based on information gathered from
post-conviction opinions available on Westlaw and, as such, the Study Sample almost exclusively reflects
cases in which the defendant exercised his right to a trial. The study therefore does not touch on the
majority of criminal prosecutions resolved without trial, which make up more than 90 percent of all
criminal cases,92 or those cases in which the undisclosed information is yet to be discovered. Further,
the troubling findings discussed in this report are all the more serious when considered in the context
of this study’s limitations — the Study Sample includes less than one-third of the federal court decisions
citing Brady during the selected five-year time period that are available on Westlaw, and it does not
include Brady claims that were abandoned before reaching federal court.

IV. PROFILE OF THE STUDY SAMPLE

he Study Sample included 1,497

T decisions issued by federal courts over a
five-year time period, from Aug. 1, 2007
to July 31, 2012.
Study Sample
Merits Decisions (620) v.
Non-Merits Decisions (877)

As illustrated in Figure One, 620 decisions or 41 Merits
Decisions
11
percent of the Study Sample resolve a Brady claim 41% Non-Merits
Decisions
on the merits*,and the remaining 877 decisions or 59%
59 percent of the Study Sample do not resolve a
Brady claim on the merits, i.e., a non-merits
decision.93 See Figure 1.
Figure 1
Of the 620 decisions, 433 are in cases that originated
in a state court and the remaining 187 are in cases
that arose from a federal court prosecution. As Figure
Two reflects, this is a two-to-one ratio of state to Decision Origin
federal prosecutions. See Figure 2. State Case (433) v. Federal Case (187)

Federal Case 30%
Procedural Posture
Habeas Petitions = 451 State Case 70%
Appeals = 84
Habeas Appeals = 40
Post-Trial Motions = 37
Trial Motions = 3
Other = 5

Post-Trial Motions 6% Figure 2
Habeas Appeals 6% Trial Motions <1%
Other <1%
Although these decisions present a variety of
Appeals 14%
procedural postures, nearly three-fourths are
petitions for a writ of habeas corpus.94 Figure
Habeas Petitions 73%
Three illustrates the decisions broken down by
procedural posture.95 See Figure 3.
Figure 3 Percentages may not total 100 due to rounding.

*As used in this report, the term “decisions” refers only to the 620 Study Sample decisions that resolve a Brady claim on the merits.

How Courts Are Impeding Fair Disclosure In Criminal Cases

Figure Seven lumps all such Violent 55% 57% decisions into one category labeled “multiple.96 See Figure 4. was facing the death penalty. Thus. See Figure 6. 285 decisions involve a petitioner percent of the decisions. Figure 5 .97 In order to account for the Drug 15% Drug 15% many decisions that involve multiple types of Violent information. the claim and upholding the conviction could result in the petitioner’s execution. Drug = 97 White Collar and Regulatory = 66 Sex = 55 Property = 34 The information at issue in the decisions came Other = 28 in a variety of forms. Pro Se (335) nearly equal to the number involving exculpatory information. with violent crimes constituting over Both 28% Exculpatory 37% 50 percent of the 620 decisions. the court assessing the represented by counsel and 335 decisions involve Brady claim did so with knowledge that denying a petitioner appearing pro se. Figure Sex 9% Seven illustrates all 620 decisions broken down by information type. the number of Representation Type decisions involving impeachment information is Counsel (285) v. in nearly 10 Specifically.” See Figure 7. As Figure Six demonstrates. Figure Four demonstrates that more of the The Research Team also identified 59 decisions decisions involve a petitioner appearing pro se in which the petitioner raising the Brady claim than those acting with legal representation. Approximately 28 percent of the 12 Counsel 46% decisions involve both impeachment and exculpatory information. See Figure 5. Impeachment 35% Decisions by Crime Type Violent = 340 Figure 6 Percentages do not total 100 due to rounding. most frequently as Property 5% Other 5% White Collar & Reg 11% documentary information or statements. Pro Se 54% Decisions by Value Figure 4 of Information Exculpatory Impeachment = 228 = 216 Both = 172 Neither = 4 Neither <1% Figure Five shows the breakdown of decisions by crime type.

can be 0 4% compared to the prevalence of every other type No Not Not Brady of information within all the decisions. material Multiple 28% information. (2) the information at issue Incentive/Deal 9% was not favorable. Figure Withholding Favorable Material Violation (292) (98) (208) (22) Eight sets forth this comparison and reveals that nearly half the decisions contain documentary Figure 92 Percentages do not total 100 due to rounding.98 See Figure 8. as illustrated 0 above. In (240) 48% 208 decisions. In 292 decisions. Another 98 decisions rejected the Brady Documentary claim when the court concluded the information 47% (297) 50% Statements at issue was not favorable to the defendant. Figure Nine shows the breakdown Documentary 25% of the 620 decisions by Brady claim resolution. information and approximately two-fifths contain statements. or (4) the government violated Statements 21% Brady by withholding favorable. in the 22 remaining 20% (94) (98) decisions. within all the decisions. the court may have found Incentive/Deal = 58 Physical = 46 (1) the government did not withhold the Other = 58 Multiple = 176 information at issue. And. the petitioner failed to obtain relief 30% because the court deemed the information at Other Physical Incentive (114) issue not material. material information. See Figure 9.100 Thus. In Documentary = 154 of Information Statements = 128 resolving the claim. the court found that the government 16% 18% 10% 15% violated Brady by withholding favorable. Figure 7 Decisions by Brady 13 To gain a different perspective on the prevalence Claim Resolution 50 of each information type in the Study Sample. (3) the information at issue Physical 8% Other 9% was not material. Each of the 620 decisions resolves one or more Decisions by Type Brady claims in one of four possible ways. more than one-third of all the 40% 39% decisions. the Research Team distributed each instance of 40 47% a particular type of information in Violation Brady the “multiple” category to the total count Not forMaterial that type of 30 34% information without regard to decision double Not Favorable 20 counting. By counting the total instances of a No Suppresion 16% particular type of information. the court rejected post- conviction relief on the grounds that the Prevalence of Information government had not withheld the information Type in All Decisions at issue. the prevalence of 10 that one type. the court ruled in favor of the defense in Figure 8 less than four percent of the decisions and sided How Courts Are Impeding Fair Disclosure In Criminal Cases .

e. 80% 90% Brady Violation No Violation 60% Withheld Favorable Information Decisions 40% by Brady Claim Resolution 20% 100% 0% 10% 80% No Violation Violation 86% (188) (22) 60% Figure 11 40% 20% 14% 0% No Violation Violation (124) (21) Figure 10 The Research Team also identified 65 decisions in which the government did disclose the favorable information but did so in an untimely manner. See Figure 10. it prevailed in nine out of 10 percent of these decisions resulted in a finding decisions. in all time. the courts ruled in in which the government failed to disclose favor of the government in 90 percent of favorable information. Adding late disclosure decisions to decisions turning on the question of materiality.101 Notably. The Research Team also identified 145 decisions As Figure 11 demonstrates. See Figure 11. or that the late . Of these 65 late disclosure decisions. with the government over 96 percent of the disclosure was not materially prejudicial. the court determined that the favorable information was not material. when the government undisclosed favorable information102 was not disclosed favorable information late or never material and rejected the Brady claim. the court concluded that the information — i. therefore.. with approximately one-third of those but one. a violation of Brady. in 86 percent decisions involving withheld favorable of these decisions. only 14 disclosed it at all. Figure 10 illustrates this significant imbalance Withheld Favorable — nearly nine out of 10 decisions involving Information Decisions undisclosed favorable information rejected the by Brady Claim Resolution Brady claim and ruled in favor of the 100% government. those decisions involving undisclosed favorable information reveals an even greater imbalance. that the undisclosed favorable information was 14 material and.

A. the standard may be applied in an arbitrary and subjective manner. courts apply is articulated. the researchers identified 15 which of those articulations. or both. The Research Team found that. if any.V. In other words. How Courts Are Impeding Fair Disclosure In Criminal Cases . researchers found that nearly 87 percent articulated and applied either the Bagley standard. regardless of how regardless of how the materiality standard the materiality standard is articulated. in similar factual contexts. Of the decisions in the Study Sample that included a materiality determination. and applying the same articulated standard. the Research Team sought to ascertain all articulations of the materiality standard set forth by courts subsequent to the Brady decision. As shown below. In support of this objective. In addition. manner. Then. the results of that application can be inconsistent. Decision Comparisons — Arbitrary Application of the Materiality Standard The decision comparisons that follow demonstrate the flawed nature of the materiality standard. the data demonstrates that materiality determinations significantly favor the government and suggests that courts may take a results-oriented approach to the application of the materiality standard. courts apply the standard the standard in an arbitrary and unpredictable in an arbitrary and unpredictable manner. the Kyles standard. for each decision in the Study Sample. Even when courts articulate it consistently. the researchers found no relationship between the particular articulation of the standard and the decision outcome. tHe MAterIAlIty StAnDArD AS DeFIneD AnD APPlIeD by tHe benCH primary objective of this study was to analyze the articulation and application of the A materiality standard by courts resolving Brady claims.103 About five percent of the study’s decisions that included a materiality determination applied an alternative articulation and the remaining eight percent did not include any materiality standard articulation. different courts may ultimately resolve the Brady claim differently. Even when evaluating the same information. that particular court used when making its materiality determination.

the chairman of a large oil industry company. and “The fact that Allen might have had a at trial did show.104 The convictions stemmed from a larger public corruption conspiracy orchestrated by Bill Allen. … as to his corruption charges does not mean a consideration which made the jury well that evidence of a different bias of motive aware of the powerful incentive Allen had would be cumulative. and others implicated in the conspiracy. Court of Appeals the District of Alaska for the Ninth Circuit Peter Kott — Victor Kohring — Information Is not Material Information Is Material “Kott had ample opportunity to show. Kott and Kohring were alleged to have taken bribes from Allen in exchange for legislative action. and bribery. as well as former U.” prosecution. District Court for U. Peter Kott Victor Kohring U. Kohring. Senator Ted Stevens. investigated for sexual misconduct with minors and had attempted to conceal that behavior by soliciting perjury from the minors and making them unavailable for trial. extortion.” This evidence “would to shade his testimony in favor of the have shed light on the magnitude of Allen’s government. or was still being.105 Undisclosed Information: The prosecutors failed to disclose several thousand pages of documents.S.” This evidence “may be incentive to cooperate” and “would have described as needlessly cumulative on the revealed that he had much more at stake question of Allen’s incentive to help the than was already known to the jury.S.S. v. Allen struck a deal with the government in exchange for his testimony against Kott. Allen’s bias based on the motive to testify [] in order to gain leniency substantial value of Allen’s cooperation.” . MAterIAl or not MAterIAl? Key government Witness Investigated for Sexual 16 Misconduct with Minors and Attempt to Suborn Perjury Factual Similarities: Peter Kott and Victor Kohring were both former members of the Alaska State House of Representatives when they were convicted of three federal public corruption offenses — conspiracy. United States United States v. including information that Allen had been.

Regarding cross-examination on the topic. Conviction reversed.” “In view of this court. the evidence “[H]ad the evidence of Allen’s past been regarding the alleged subornation of disclosed. the jury would have been able have repeated the denial. which might have significant assistance[. “[t]his evidence would have been Therefore. Brady violation. Allen was the whether Kott is guilty of the crimes prosecution’s star witness. not whether Allen is guilty of sex crimes.” regarding Allen’s testimony against Kohring. this evidence “does not run afoul excluded under Rule 403. and the failure to disclose it altered at least one juror’s assessment did not prejudice Kott.]” 17 Regarding cross-examination on the topic.Therefore. “[i]t is known that Allen had previously “even if Allen would have denied the denied the conduct.” of Rule 403[.S.” charged.]” been telling. there is a reasonable probability perjury is not material in the context of all that the withheld evidence would have the evidence. The result is that to observe his demeanor when he this line of inquiry would not be of answered the questions. .” U.” “[A]dmission of the evidence creates a “The alleged misconduct would have added serious danger of confusing the issues an entirely new dimension to the jury’s which the jury actually needs to decide — assessment of Allen. District Court for Court of Appeals for District of Alaska: the Ninth Circuit: no Brady violation. Conviction upheld. so he surely would allegations.

McDuffie — late Disclosure of late Disclosure of evidence Is not Material evidence Is Material “[The] report was not ‘suppressed’ within the meaning of “Because the disclosure of this evidence Brady … [because it] was disclosed during Officer near the end of its own case in chief Calabrese’s testimony and counsel was able to prevented McDuffie from presenting his cross-examine Calabrese regarding his earlier incorrect theory of the case in a coherent manner. United States v. whereas Wayne D. the government withheld the presence of a fingerprint belonging to Detective Barrington. physical evidence that could have supported the defense theory and may have proven exculpatory upon further investigation. Warden Carol Howes Wayne D. on a drug scale recovered from McDuffie’s apartment during a planned search pursuant to a warrant. first degree felony murder being the most serious count of which he was convicted. Willis learned that the Michigan State Police records contained a copy of his palm print that could have been compared to the palm print recovered from the crime scene. but prevented Willis and McDuffie from presenting their defense theory in a coherent manner. Michael A.” the government effectively suppressed it. each argued that he was the victim of a police conspiracy because he refused to cooperate with other ongoing murder investigations. MAterIAl or not MAterIAl? late Disclosure of Potentially 18 exculpatory Physical evidence Factual Similarities: During their respective jury trials.” have impeached the laboratory report.S.” . Court of Appeals Eastern District of Michigan for the Ninth Circuit Michael Alan Willis — Wayne D. McDuffie U. Michael A. Different Crimes: The charges against Michael Alan Willis were violent in nature. but failed to disclose until after the trial was well underway. Willis v. Willis and Wayne D.106 Specifically. Undisclosed evidence: For Willis. McDuffie was convicted of two drug charges (manufacture and possession with intent to distribute cocaine base). a key witness for the government. Following the trial.S. The prosecution in both cases possessed. a palm print of Willis for comparison. The untimely disclosure of this evidence not only foreclosed such investigation. In the case of McDuffie.” “[I]nformation that the state police in fact had petitioner’s “This evidence is favorable to McDuffie palm print on file would not have impeached Calabrese or and potentially impeaching of damaged any of his other testimony. but did not receive. but merely would Barrington. District Court for the U. the government withheld a Michigan State Police laboratory report stating that the palm print recovered from the crime scene was suitable for comparison but that no match had been identified and that the lab requested. McDuffie each pursued the same defense theory — that he had been framed. testimony about the contents of the report.

Despite this evidence. the jury nonetheless credited the prosecution theory of the case. does not consider government’s case … government’s case… “There was extensive eyewitness testimony[] and defense “[H]ad McDuffie been able to present a counsel strove mightily to impeach or otherwise call into coherent theory of evidence tampering. [Willis] the case. particularly in his cross. jury would have discredited Barrington examination of Officer Calabrese. The there is a reasonable probability that the existence of the palm print file had no substantive jury would have discredited exculpatory value. because it prevented McDuffie from .” U. or to do any pretrial discovery into the [] chain of custody. question that testimony. calling witnesses who testified both as to his whereabouts on “The government’s failure to disclose the day and time of the crime and his appearance at that time.” experts in forensics or police procedure. District Court for the for the Ninth Circuit: Eastern District of Michigan: Brady violation. .. Conviction upheld. would have affected the jury’s verdict. and despite [Willis’] own alibi presenting a coherent version of his evidence. again which did not match the descriptions given by the witnesses. relies on of the case.” presented a vigorous alibi and misidentification defense.]” “Given the extensive impeachment of the prosecution case “The prejudicial effect of the already before the jury.” “[The] view that ‘[t]he palmprint record was Brady evidence “This evidence supported McDuffie’s because at a minimum Willis could have used it to impeach theory that Barrington sought to frame the credibility of the investigating officer who subsequently him in order to pressure him to denied that the record existed’ … is simply incorrect. Court of Appeals U.S.’” personal knowledge. there is a reasonable probability that the Counsel focused extensively.” witnesses’ in-court identifications[. no Brady violation.” Court discredits defense theory Court relies on defense theory of the case. Much less is there a “reasonable probability” that the result of petitioner’s trial would have been different had it been disclosed that the State Police in fact had a copy of petitioner’s palm print on file. petitioner’s palm print file been disclosed at trial. Conviction reversed. and at times succeeded in doing so. it is highly doubtful that one government’s late disclosure is therefore additional point of impeachment.S. this evidence was [] prejudicial.” reason why the recovered palm print was not compared with “McDuffie was unable to retain his own petitioner’s palm print. on the utter lack of and reached a different conclusion in physical evidence tying [Willis] to the crime.. on a collateral matter ‘sufficient to undermine confidence in the which was not actually within the testifying witness’s outcome of the trial.” cooperate.“[T]here is not a reasonable probability that the result of the “[H]ad McDuffie been able to present a proceeding would have been different had the existence of coherent theory of evidence tampering. and its only value would have been in Barrington and reached a different 19 impeaching Officer Calabrese’s testimony regarding the conclusion in the case.

for Kohring. different courts in which the materiality standard can be dealing with identical charges. the In Stevens. The district court in the nature of the Brady doctrine itself.112 Arguing that the decision examples. illustrates the truly challenges to their respective convictions and disparate treatment defendants can receive moved to order the government to disclose all when the government withholds information information “favorable to the accused. information was in fact material and therefore a Stevens. Kohring107 and United disagreed — it ultimately held the undisclosed States v. As between Kohring dismissal to secure this relief and. an identical applied. different courts witness. Kohring subjective nature of assessing the relevance and and Kott moved for a dismissal of their impact of information and the inherent vagaries convictions or a new trial. and in all three cases the government and Kott were finally afforded a remedy. United States v. the U. an identical same context. Kohring. the case of Senator Ted Stevens discussed withheld information was not material.114 Brady claims. including Unpredictable Approach multiple pieces of information that directly impeached star witness Bill Allen and The disparity in the way courts resolve similar information that had not been revealed in the Brady claims. disclosed literally An Arbitrary and thousands of pages of documents. for the first time. witness. the U. b. In that rejected their claims. despite reviewing nearly identical the wait was over two years. response. it took nearly a year from the Stevens its star witness Bill Allen. Materiality Analysis — both cases to the Alaska District Court and then. as demonstrated in the preceding Stevens proceedings. however. the Ninth Circuit decisions.S. is a consequence of the highly government’s conduct violated Brady.S. District Court for the interplay between the government’s decision to District of Columbia vacated the conviction dismiss the conviction in the Stevens case and upon the request of the government when the its decision to defend the convictions of Kott Brady violations came to light.109 Kott decision and the Ninth Circuit Court’s Kohring decision in the Study Sample is particularly illustrative of the arbitrary manner In Kohring and Kott. the government moved to remand . reached different conclusions when applying the same legal standard. District Court for Alaska and the Ninth Circuit Court of Appeals reached The inclusion of the Alaska District Court’s different results. Kohring and Kott were pursuing appellate information came to light.110 At the same and Kohring.113 For withheld substantial information pertaining to Kott. and Kott. It was not until the Ninth elected officials facing charges of political Circuit vacated their convictions that Kohring corruption. In when considered alongside the two related court both cases. and identical information in the same context.”111 In from the defense. even after more withheld time. Further. and identical information in the dealing with identical charges.108 that are compared above. forcing 20 in the introduction is particularly illustrative both defendants to pursue another appeal. and Kott were all Alaska violation of Brady. declaring that the regard.115 In Kohring and Kott. Kott. reached different conclusions.

value of information in a case before it is tried. the The Brady rule is no match for this sort of government won 86 percent of the time (see blinding conviction. rather favorable information and. Figure 10). application of the materiality standard.117 context. Conversely.e. in his eyes. while 21 information. notably. ways is unworkable. not material.e. earnest and ethical prosecutors are of the decisions were resolved with a court asked to struggle with a doctrine that in many finding that Brady was violated. prosecutors. This may make sense in the post-trial percent of the time (see Figure 11). courts overwhelmingly terms that place criticism on the shoulders of the favor the government. When materiality is the norm for material in only 22 — i. but use of Brady as the pre-trial standard for determining disclosure obligations is While the arbitrary application of the fundamentally flawed. this is not a complete picture of the courts found the withheld information to be problem. was not disclosed. which is 90 demands.”118 For these reasons. The data. Of the 620 decisions. It is flawed because it asks materiality standard is problematic in itself. and without the How Courts Are Impeding Fair Disclosure In Criminal Cases . less than four percent disclosure. of those 210 decisions.116 The Research Team found specifically reforms that prohibit the use of the that 145 decisions involved undisclosed materiality requirement to limit disclosure. Conclusions on the on the flawed nature of the materiality standard.These decision comparisons put a human face C.. the a prosecutor to assess the materiality of frequency with which courts conclude information in relation to the “whole case” before information is not material overwhelmingly there is a “whole case” to measure the information favors the government and creates an against. the Research Team individually recognizing the importance of strengthening and evaluated each of the 620 decisions to identify enforcing ethical rules.. only 21 of than reinforcing ethical rules or disciplining those decisions (14 percent) resulted in a court prosecutors for mistakes or failures. before the issues are known. illustrates another problem Materiality Standard — when a Brady claim is resolved on the Although Brady violations are often couched in question of materiality.120 It is impossible to weigh the material impression of bias. the court found that the The prosecutor was so convinced of the information was not material in 124 decisions defendant’s guilt that DnA tests to the — i. Justice Thurgood Marshall characterized the materiality requirement as “a Acknowledging that not all the Study Sample pretrial standard that virtually defies decisions involved the withholding of favorable definition. When those decisions involving the late disclosure of favorable information are Brady articulates a post-trial standard used by included. experts are now turning only those involving favorable information that their attention to the Brady doctrine itself.119 finding the government violated Brady. this number jumps to 210 decisions reviewing courts when assessing the prejudice of and. when the Brady claim was resolved by contrary were. the court found the non-disclosure in the context of due process information not material in 188. however. of the 145 undisclosed favorable information decisions.

be seen when requests are made for post-trial “[t]he significance of an item of evidence can DNA testing in cases in which prosecutors start seldom be predicted accurately until the entire out convinced of the defendant’s guilt. the subject of John Grisham’s first book of non- Further. Grisham writes: “Bill Peterson [the cognitive biases inherent in human nature. Forget the DNA. vacuum and rarely considers the defense perspective — the application is unfairly influenced by the prosecutor’s theory of the case. accepting as true information that is [T]he dual role that the prosecutor must consistent with guilt and discounting conflicting play poses a serious obstacle to information as unreliable or unimportant. Grisham wrote: “Peterson was signifies the tendency to seek or interpret still convinced Ron Williamson had raped and information in ways that support existing beliefs. of guilt then engages in selective information processing. the problem is compounded by the fiction. benefit of the defense theory. if not necessity. not material. . According to the Agurs Court. might be inclined to that expectation. have “solved” the case.”121 illustrated in the case of Ronald Williamson. there will undoubtedly be information in the file to support the guilt Prosecutors are not only zealous advocates but hypothesis. in his eyes. from the system to uphold convictions and are limited in many of the same Even for the most ethical prosecutor. application ways as prosecutors when attempting to of the materiality standard is not done in a measure materiality. or unimportant will rarely rise to the assessing materiality prospectively. trade. exonerated Williamson. cognitive real science. He prosecutor’s dual roles of advocate and minister had never wavered in his belief that Williamson 22 of justice.”124 But after the DNA tests bias takes on exceptional importance. This is record is complete. The Brady rule is no match for this sort Judges are under considerable pressure of blinding conviction.”125 The prosecutor was so convinced of the defendant’s guilt that DNA tests to the contrary were. or hypotheses. Thus. and his evidence had expectations. with a singular is guilty and is looking for information to confirm drive to win his case. with the difficult job of deciding what was the killer. also ministers of justice responsible for ensuring the prosecutor that expects to become convinced the fairness of a judicial process. when level of “material” in the mind of that prosecutor. murdered Debbie Carter. a zealous advocate. the prosecutor’s opinion Confirmation bias is a type of cognitive bias that was not affected. materiality can only accurately be measured retrospectively. is guesswork under the best of Common examples of this phenomenon can also circumstances. The job of correctly unreliable. a prosecutor.123 Because the police or agents conclude that information is not material. In light of what is a pliable time is testing the hypothesis that the defendant materiality standard. as a result of confirmation bias.122 not changed. In the prosecutor] liked the idea of DNA testing. The prosecutor is by Information discounted as unpersuasive. and now it could be proved with information to disclose to her opponent. A prosecutor reviewing a case file for the first even if inadvertent. implementing Brady.

They are under considerable pressure from the system to uphold convictions and are limited in many of the same ways as prosecutors when attempting to measure materiality. it is not surprising prosecutor. but it demonstrates how such an therefore depends on the prosecutor to recognize approach is arbitrary. the nature of the materiality standard jury’s decision. the government. He is a trained attorney who must aggressively seek convictions .”130 The reviewing court has a record that these advocates oftentimes overlook of what was presented at trial. discovery. quite possibly.129 The problem is exacerbated since such decisions are almost never subject to review. “The reviewing court. and.126 defense theories and strategic decisions based on what was disclosed. as Unless the jurisdiction has adopted open file this Study demonstrates.. and pressures . evidence that the materiality standard favors he must place foremost in his hierarchy of interests the determination of truth. As the Supreme Court acknowledged. the defense rarely wins. therefore. and how the disclosure might have provides an opportunity for engaging in a kind of tipped the scales. faced with a verdict of guilty. when the decision turns on the question of materiality. Given this obviously review the withheld evidence than the unharmonious role. what influenced the ethical line. the prosecution’s file is not available to This Study not only provides quantitative the defendant or to the court absent the evidence that the materiality standard favors the prosecutor’s permission. support that verdict. to finalize to identify the material that could criminal judgments. unjust. additional information that And for those prosecutors practicing close to the could have been discovered. Thus. unjust. at the this Study not only provides quantitative same time. judges are left to of Brady’s mandate..128 The justice system government. This makes little sense in cases in which the decision to disclose jeopardizes the prosecution’s case. and. but rarely has or downplay potentially favorable insight into that which is not in the record — 23 evidence. as a representative of the state.. the prosecutor must an approach is arbitrary. therefore. the significance of the information and to willingly disclose it. abandon his role as an advocate and pore through his files. gamesmanship that is wholly inconsistent with the spirit of Brady and.127 make these decisions in a vacuum and. is in little better position to undermine his case. evidence to How Courts Are Impeding Fair Disclosure In Criminal Cases . in violation Despite these uncertainties.. but it demonstrates how such for purposes of Brady. as objectively as possible. Judges face similar challenges and are just as susceptible to confirmation bias as anyone else.

and after trial — for decisions involving late disclosure of favorable information. a significant number of the decisions involved the late disclosure of favorable information. in a large portion of the decisions — nearly one of every six — the Brady claim involved information of an incentive or deal for a witness to testify or alleged facts suggesting the existence of a deal for a witness to testify. VI.131 Second. late Disclosure of place after the start of trial and. The timing of disclosure in these information decisions ranges from shortly before trial to long after conviction. Pre-Trial 18% Post Trial 4% Figure 12 .133 A late disclosure decision is a decision in which the accused asserts a Brady claim based During on the untimely disclosure of favorable Trial by the prosecutor.”132 sometimes in instances in which defendants had little ability to access the information. See FigurePost-Trial 12. during trial. with the large majority taking place during trial. the Research Team identified a group of decisions in which the court denied the Brady claim because “the defense could have obtained the evidence on its own with reasonable diligence. Third. the Research Team identified 12 decisions involving late disclosure pre-trial. of the 65 late disclosure decisions. 53 decisions where the favorable Timing of Late Disclosures Pre-Trial = 12 information was disclosed during trial. nearly all involved a disclosure taking A.134 Figure 12 shows the timing Pre-Trial During Trial 78% of the disclosure — pre-trial. in all Favorable Information but one. First. Specifically. the courts concluded the timing was not materially prejudicial. The Study Sample includes 65 late disclosure decisions. and three During Trial = 53 Post-Trial = 3 decisions where the favorable information was disclosed after trial. reCUrrIng ISSUeS AnD FACtorS AFFeCtIng BRADY ClAIM reSolUtIon nalysis of the Study Sample reveals some recurring issues in the decisions and certain factors that 24 A tend to influence courts’ resolution of Brady claims.

the court acknowledged the 1.The rules that govern the timing of favorable In Jackson. the judiciary As a result of the prosecution’s late disclosure.141 and to pursue other leads. respectively. disclosing them just six months “earliest feasible opportunity.139 The incident had diminished to the point that he could Model Rule encourages “timely disclosure. but held that “the trial judge effectively remedied any Sample Decisions prejudice stemming from the prosecution’s Brady Disclosing favorable information late can render violation” when it severed Jackson’s trial from his that information useless. as the Supreme the eyewitness stated unequivocally that Jackson Court recognized in Cone v.8(d).145 Jackson v. courts concluded that the defendant was not materially prejudiced by the timing of the disclosure. not inside the apartment with disclosure obligation “may arise more broadly the victims. an eyewitness made two separate among state disclosure requirements. Federal districts differ and having the same effect had it never been widely. Just a couple days after a multiple information before trial. and instructed interfering with the ability to develop a cogent the jury that they could draw an adverse inference defense theory or an alternate theory of a case. The under a prosecutor’s ethical or statutory statements also included leads to other possible obligations” than under Brady.”144 clarified in ABA Formal Opinion 09-454 to mean “as soon as reasonably practical” after the There is no Brady violation as long as Brady prosecutor becomes aware of the information. days before trial. the favorable information was disclosed information disclosures vary. either by preventing the co-defendants. Bell.136 In addition. which encourage withheld these two favorable statements for three prosecutors to disclose favorable information at the and a half years. nearly all effective use at trial. the considerable deference to the prosecution. The Court cited the perpetrators of the crimes. In all but one of these 65 decisions. late Disclosure favorable nature of these two statements. When affirming Jackson’s conviction. Senkowski decision illustrates these Jackson was convicted of multiple counts and precise issues. By then. when the fatal shots were fired. The prosecution 25 ABA Criminal Justice Standards. but any such three and a half years after it was in the prosecutor’s disclosure that takes place after the start of trial is control — too late to be of any value to the defense untimely under most rules.137 a prosecutor’s was in the stairwell.143 Specifically. 10 days after arraignment to not later than seven supporting Jackson’s defense theory.142 sentenced to 25 years to life in prison. but all require disclosure of favorable disclosed.” a phrase that is involved a disclosure taking place after the start interpreted in such a way as to give of trial.”138 as well as ABA before trial. The from the prosecution’s failure to disclose.140 material is disclosed in time for “its Of the 65 late disclosure decisions. By excusing this behavior. allowed the admission of the two defense from following up on potential leads or by favorable statements into evidence. undermines the clear rules intended to protect a Jackson lost the ability to present eyewitness defendant’s access to timely disclosure of testimony that supported his version of the facts favorable information. the witness’s “memory of the Model Rule of Professional Conduct 3.135 There is also disparity homicide.” no longer recollect any of the events at issue. ranging from statements to the police and prosecutor.146 How Courts Are Impeding Fair Disclosure In Criminal Cases .

unaware that would have said. the court stated: “It is purely speculative that defense counsel would have been able to track Importantly. District Court Judge Lee Sarokin. statements in nearly all the late disclosure decisions in this Study Sample. will plead guilty155 prosecution did not violate Brady and upheld rather than risk conviction of a more serious crime Chinn’s conviction and death sentence. It was also late Disclosure revealed that the witness made a statement to this Courts generally take the position that there is no effect to both the police and the prosecutor directly. Chinn asserted. the disclosure of favorable of favorable information — in some cases years information during the trial prevented the defense after the prosecutor had control of the information from following up on potential leads. the defense learned for the first time that the witness had seen a third person at the crime 2. the defense in most cases is Chinn argued that the delayed disclosure of this already committed to its theory of the case. late disclosure also increases the down this unidentified third person and what he likelihood that an innocent defendant. Problems Created by scene just before the crime occurred. Brady violation as long as Brady material is but it was never disclosed to the defense. then “there the defense has delivered the opening statement.”151 The court concluded the favorable information exists. Yet prosecutors withheld consequences as never disclosing the favorable information until after opening information at all. Chinn v. . — has the same profoundly unfair consequences as during the cross-examination of a key government never disclosing the information at all. Warden of Mansfield These decisions demonstrate that the late disclosure Correctional Institution.147 At trial. After had these opportunities. it was a reasonable probability that the result of the is often too late to take meaningful advantage of proceeding would have been different. It can favorable information “effectively deprived him and be devastating when the prosecution discloses his counsel of the opportunity to pursue an information for the first time after the defense has investigation[.”149 If the defense should have been addressed in the opening. prejudice.156 According to retired U. preparation by a defendant’s legal team and Late disclosure handicaps pre-trial preparation by can have the same profoundly unfair a defendant’s legal team. Although disclosed in time for “its effective use at trial. to fully present inconsistencies in the the information contradicts an assertion made in testimony of the State’s witnesses.154 the reality is that late disclosure of favorable information poses serious late disclosure handicaps pre-trial challenges for the defense. and to show the opening or when it is critical information that weaknesses in the State’s evidence. particularly when theories].”152 a defense counsel “was afforded the opportunity to phrase that is interpreted in such a way as to give 26 fully cross-examine” the witness on this considerable deference to the prosecution. By the time the opening statement is given.”150 Rejecting new information or follow up on leads that require the notion that the late disclosure caused any further investigation.S. the timing of this disclosure Despite the judicial standard for what constitutes precluded any additional investigation. witness.] … to explore alternative [defense delivered its opening statement. In another decision.153 information.148 an excusable late disclosure. and higher sentence after trial.

49 percent involved Nearly half of the late disclosure decisions in the statements. probative of an issue that concerns a witness who has already taken the stand and been excused. Making use of that kind of information requires Late Disclosure Decisions recalling the witness and interrupting the flow of Involving Statements the trial.159 disclosure decisions as compared to statements in all decisions. however. to accept a Jencks Act does not apply and where witness plea agreement. to conclude that recalling the witness is not worth the risk. after weighing the options. suggesting that witness statements are disclosed late more often than other kinds of information. some appellate courts interpret this to mean timely The side-by-side pie charts in Figure 14 illustrate disclosure would not have made a difference to the the overrepresentation of statements in late defendant. Study Sample involved statements.160 This makes How Courts Are Impeding Fair Disclosure In Criminal Cases . of the late disclosure decisions. Of the 620 decisions. Courts sometimes suggest a continuance State-Originated (23) v. but we have no way of sense in the context of federal cases because the knowing how many there are who merely Jencks Act does not require disclosure of entered guilty pleas through bargains and government witness statements until after the never appealed as a result. only nine are decisions that originated agreements. … [O]nly about witness has testified on direct examination. statements are not exempt from rules of discovery that require information be turned over before Sometimes the late disclosure contains information trial. However. late Disclosure Conclusion 39 percent involved statements. the majority of the late Judicial tolerance of late disclosure enables disclosure decisions involving statements are in 27 prosecutors to pressure a defendant.162 See Figure 13. Most of those involved persons who had actually gone to trial.158 but that too risks disruptingFederal the flow of the case and jurors blaming the defense for State-Originated 72% prolonging the trial. See Figure 14. to disclose witness statements late.157 in federal court where the Jencks Act applies. When defense Figure 13 counsel fails to ask for a continuance. who would decisions that originated in state court where the otherwise exercise his right to a trial. This can undercut the value of the information and force the defense. As illustrated in Figure 13. of the late disclosure decisions involving trial and the balance are resolved by plea statements. approximately 3. Roughly 20 percent of those that have been exonerated confessed to the crimes with There is very little excuse for a prosecutor which they were charged and convicted. Federal-Originated (9) to give the defense time to pursue the witness for recall or to make use of other newly producedState Federal-Originated information as a proper remedy for late 28% disclosure.161 5 percent [of criminal cases] actually go to However.

known the essential facts permitting him to take .”165 courts almost never find the late atements disclosure of information a violation of Brady.167 In binding the defendant to this due statement would put the witness in jeopardy. on an assertion that the defense knew or justification. but could not Diligence ‘rule’ develop their case-in-chief without them. Due to the generally accepted No Statements 61% notion that there is no Brady violation if the information is disclosed in time for “its effective use at trial. they are taking advantage of judicial should have known about the relevant tolerance of late disclosure and unfairly information or could have obtained the disadvantaging the defense. Witness and necessary circumstances. When The Study Sample includes 19 decisions in which prosecutors exercise their discretion to delay the court denied the Brady claim based. b. Judicial indifference encourages the continued practice of late disclosure. it still prevailed on the Brady claim have obtained the information on his own. at least in disclosure of favorable material without part.164 Over 10 percent of the Study’s atements decisions involved the late disclosure of Statements 39% information. the practice is common. of the 65 late disclosure decisions in the ements Study Sample.166 statements are.168 in over 98 percent of the decisions — an These courts conclude that Brady simply is not implicated if “a defendant knew or should have almost perfect record.163 in Late Disclosure Decisions ements (379) The findings of this report demonstrate that. only one resulted in a Brady Statements 49% violation. with ements All Decisions 65 late disclosure decisions. the Due Prosecutors not only have access to witness statements early in the process. Thus. with rare exception. Except in unusual information through the exercise of its own due circumstances in which disclosure of a witness diligence. it still prevailed on the Brady claim in over 98 percent of the decisions — an almost Figure 14 perfect record. In tements (33) Late Disclosure Decisions 28 fact. even when the government failed No Statements 51% to disclose favorable information in a timely fashion. there is no justifiable basis for prosecutors to Statements Overrepresented disclose witness statements late.’ courts reason that the prosecutor’s failure to disclose the relevant or even when the government failed favorable information is not a breach of duty if to disclose favorable information in a timely the defendant with any reasonable diligence could fashion. recorded in the earlier phases of criminal investigations. which the data strongly suggests has evolved into a trial There is very little excuse for a prosecutor to tactic rather than an allowance for exceptional disclose witness statements late. diligence ‘rule.

upon arrest at the police station. incorrectly. Abdur’Rahman cried and banged his head against the majority washes its hands of the prosecution’s the table and the wall.advantage of any exculpatory information[. “[w]ith respect to the [] report. it minimizes the of Abdur’Rahman were withheld from the weight that a jury might give to the recorded defense.171 Specifically.]” then “he Sample Decisions likely should have discovered them through The majority of due diligence decisions in the further investigation.”174 The court reasoned further: “If [defense] counsel did not know the essential facts 1.]”169 When a court invokes the due diligence rule. and that after the detectives deliberate withholding of this evidence by insisting got him under control and relocated him to the that [defense] counsel knew the fuzzy contours of booking room. he again began banging his head the report and that through investigation he against the wall. that a defendant is capable of within police reports and government documents. information disclose the relevant or favorable information by that a prosecutor should disclose. emotional problems. and a defendant is alleviating the prosecution from its obligation to unfairly burdened to seek. rejected the defense argument: “[W]e are 2.”177 In that regard. but part of [the Detective’s] report does not which is almost always within easy reach of undermine our confidence in petitioner’s How Courts Are Impeding Fair Disclosure In Criminal Cases . telling his lawyer the statements he made and the 29 For example.”175 The court’s reasoning Study Sample involved information contained assumes. the court minimized a complete report to Abdur’Rahman. on its caused one or more jurors to vote in favor of a life face. was particularly susceptible to “[T]he fiction that the defense had the time and manipulation. imposing an obligation on the defense to seek out the information. issue[. Problems Created by the not convinced that. Due Diligence ‘rule’ of Abdur’Rahman’s head-banging[. sentence over death.172 The government offered no ‘should have discovered’ the essential facts that it explanation for the redactions and failure to provide contained. the weight of a detective’s written statement contained within a police report by equating it with The defense argued that the report could have an oral statement made by a defendant that. appears self-serving. at the time of the sentencing Due Diligence ‘rule’ phase. a prosecutor however. … The prosecution’s suppression of this that is not readily accessible to the defense. constitutional obligation to provide underpins the the redacted portions memorialized observations [court’s] dismissal of the exculpatory evidence at that. supported the central theme of Abdur’Rahman’s defense — that he was a man who suffered As acknowledged by Judge Cole in his dissent. Colson. in its majority opinion. in Abdur’Rahman v. and was not the calculated depraved aptitude to discover what the prosecution had a killer the prosecutor depicted at trial. sentence. Further. portions behavior he engaged in during an extreme of a police report documenting the erratic behavior emotional disturbance.173 The court.]”176 Further. Under the due diligence ‘rule’. it is engaging in burden shifting — is encouraged to hide.170 The information in these redactions observations of the defendant by a police officer. petitioner did not know the essential facts The due diligence rule puts unreasonable of the behavior described in [the Detective’s] expectations on defendants to obtain information report.

or just over three percent of the Study require the defendant to unnecessarily pursue an Sample. almost never leads to relief for reports. a The due diligence rule is contrary to due process prosecutor is encouraged to hide. 30 These rationalizations “are contrary to the Due Process Clause. This is upon the defendant and excused the prosecution’s especially so when the situation could easily have non-disclosure.181 by a lack of resources — resources that prosecutors readily have at their disposal. The inspiration behind This study illustrates the ramifications of courts Brady is the concept that justice prevails when all invoking the due diligence rule — prosecutors are the evidence is before the jury. it is extremely difficult for a defendant of criminal records.”185 The due diligence rule relieves the punished for failing to provide the defense with prosecutor of his obligation to “assist the defense facts or [information] that defendants or defense in making its case”186 and imposes an expectation counsel could have obtained themselves. And when in possession ineffective. as well as guilt. A defendant’s ability defendant can subsequently raise a claim of to actually obtain the information is often limited ineffective assistance of counsel. courts imposed the due diligence rule ineffective assistance of counsel claim. making the prosecution.”182 The first rationale runs contrary to ‘rule’ Conclusion the truth-seeking process.”180 on a defendant to access information that is often Second. It is a waste of government resources to decisions. an major categories: (1) witness statements.179 information that a requires that “evidence tending to show prosecutor should disclose. considered defendant’s own statements or conduct.189 (3) years after the information is withheld and years witness criminal records. be fully aired before on two grounds. The second incentivized to withhold relevant or favorable rationale. the not realistically within reach. Due Diligence progeny. prosecutors should not be the jury.190 and (4) police after conviction. The undisclosed information in been avoided had the prosecutor shared the most of these due diligence decisions fits into four information in the first place. Further. and a defendant and inconsistent with Brady jurisprudence. “First. not defendant might avoid the conviction the defense.187 In 19 reasons. rather than encouraged to abide by counsel claim as a fail-safe. the prosecution’s decision to claim to obtain relief under harmless error disclose that record to the defense should not turn analysis. prosecutors.”183 Even where counsel is found to be information’s existence. which is unfairly burdened to seek. The rule is rationalized innocence. .191 Witness statements and police reports the defendant and “is no substitute for having the are typically in the sole possession of the benefit of the evidence at trial when the prosecution team.178 Under the due diligence rule. the due diligence rule facilitates the sort of gamesmanship that undermines the intent of Brady. best positioned to know of the altogether. instituting an ineffective assistance of information.188 (2) ineffective assistance of counsel claim. is troubling for several their duty to err on the side of disclosure.184 on whether the record is publicly available — it should simply be disclosed. as interpreted in Brady and its 3. if a defense attorney is not diligent. For some prosecutors.

Despite what the court said was the within the 620 Study Sample decisions. the court said.For some prosecutors. capital cases.”194 In therefore not material. Cullen. prosecutors continue to rely on it heavily. courts witness’s true role only came to light more than routinely hold that such information is not two decades after William Payton was convicted How Courts Are Impeding Fair Disclosure In Criminal Cases .195 As reflected in Figure 15 on page 36. 45. Judicial reliance on the due diligence rule turns the Brady inquiry u Deal with Witness to testify away from the prosecutor’s obligation to disclose In Hunt v. testimony. it is worth noting that a discovery violation had occurred — that the that a recent Michigan Supreme Court opinion government had failed to disclose that a witness held “that a diligence requirement is not had been offered a deal in exchange for testifying.192 trial and conviction for second-degree murder.9 witness had been impeached at trial with percent of documented wrongful capital information of prior convictions. undermines the intent of Brady. witnesses received unexplained benefits.  a key prosecution witness information that a witness is testifying in testified that he was not working for a law exchange for government favors or has another enforcement agency “in any capacity. Incentive/Deal regarding whether the evidence of [the witness’s] Information proposed plea deal was favorable to petitioner or was suppressed by the government. the due diligence rule material and that its non-disclosure does not facilitates the sort of gamesmanship that amount to a Brady violation. 1. making “snitches the leading cause of the deal information was cumulative and wrongful convictions in U. and a mental health problem. pending convictions have been traced to false informant criminal charges.S.”197 According to Northwestern University Law Nonetheless. ultimately. interest to testify.198 spite of demonstrated proof that informant testimony is a leading cause of wrongful conviction. Cullen had a self-interested motive to testify. could have made a difference. supported by Brady or its progeny. “There is no dispute 31 C. the court held that because the School’s Center on Wrongful Convictions.”199 The incentive to testify against the accused. Incentive/Deal Information u Admitted Self-Interested Sample Decisions Motive to testify Notwithstanding the clear impeachment value of In Payton v. Galaza. These witness testimony.”193 In response to Hunt’s request for post-conviction relief. it rejected the notion that are decisions in which prosecutors made deals this additional impeachment evidence with witnesses. witnesses had an admitted self. or there was a suggestion that a witness — Payton v. decreases witness was disclosed only after Victor Hunt’s defense access to favorable information. evidence of a deal with a favorable information and. a total of “undeniably damaging” effect of the 101 involved incentive/deal information.196 Despite the prevalence of courts imposing the due The prosecutor informed Hunt’s defense counsel diligence rule on the defense.

. committed by . Richard Cooper. and for testifying in such a way as to testimony. which was because of ‘promise’ subject to disclosure. accepted the witness’s representation that his extraordinary opportunity to take a trip outside the prison to have dinner with his family was not “[P]rosecutors are adept at holding out a favor in exchange for his cooperation but rather hopes for leniency to a cooperating witness “was granted because he was not allowed the same contact visits as other inmates due to his without creating any legally cognizable solitary confinement. the prosecution.209 In that instance.W. of rape and murder. McNeil. The information. the court information not material and Brady not violated. [and] family. but the prosecution did not disclose any testimony”202 and affected the jury decision. Cooper argued its impeachment value . Payton argued that impeachment of defense knew of the witness’s past work as an the witness with these facts would have “changed informant.” security reasons[. it rejected the notion claim.211 James Prosecution Witness Young was prosecuted and convicted of murder In Cooper v. the shooting was to avenge a sexual assault of A. at the time of his testimony.]”210 u other Information — r..207 The court. a Florida in the gang-related shooting of two men near a inmate. he “was and had officer who had previously served as a jailhouse been for some time working for various police informant. was convicted of three counts of first. Michael Cassidy Suggesting Incentive u Unexplained benefits given to In United States ex rel.208 Lacking evidence well aware that the witness “had a motive for that tied these benefits directly to the witness’s testifying. By recounting a confession that agencies”201 and considered himself to be working Cooper allegedly made to him. Young’s girlfriend. Seeking provided the prosecution with damning relief for the prosecution’s failure to disclose this testimony in support of the death penalty.205 The court found the with his family. According to the degree murder. information on the benefits or incentives the witness had for testifying.200 The witness then admitted prosecution called an incarcerated former police that. and that he had a trip outside the prison to eat dinner with his recently pled to a felony robbery charge .”203 The court reasoned that the jury was exchange for his testimony. the witness as a government agent during that time... and a reduction of sentence hoped for leniency for testifying against in three grand theft cases — that were in Payton. [t]he jury knew that [the that the witness received a variety of benefits — witness] had prior convictions. conjugal visits. Chicago housing project. The one exception was the opportunity the that this additional impeachment evidence could witness had to leave the prison to have dinner have made a difference. the court dismissed Cooper’s claim as maximize benefit to himself.. The court found “a dearth of court said was the “undeniably damaging” effect evidence in the record” to support the defense of the witness testimony. Young v. however. found that “[w]hile it would 32 no doubt have been helpful to [Payton] because of Seeking post-conviction relief.”204 Despite what the mere speculation.206 During the penalty phase. McCann. and that information was shared with the calculus on the believability of his the jury.

214 the greater the witness’s incentive to tailor his testimony to please the government. Immediately after the 2. At trial. and with the different version of the events. attorney until after she was relocated out of the housing project. prosecutors rely noting that “[O]fficer Winstead testified that he heavily on the testimony of informants and informed A. Second.W. Problems Created killings.213 She said that she did not provide the According to Professor Cassidy.” Young argued that A. “the State very greatest of care and caution.W. Trott said.W.W. return for reduced incarceration. and failed to disclose that police had promised A.” 215 apparently credible witnesses. explained that her prior account had been untruthful and motivated by her fear at that time of Young and other gang members. Another prosecution witness leniency from the government by offering testified that a few hours later Young and his testimony in return for immunity.220 Young “had sufficient opportunity to explore any Moreover. ought not be passed upon by the jury that she would not be prosecuted for perjury if under the same rules governing other and she gave a different version of events at trial. A.rival gang members. “prosecutors are adept at holding out suspected bias on cross-examination. police interviewed A. however. She was later called as a witness before the grand jury where she again denied Former prosecutor and Senior Circuit Judge for involvement.’s testimony the Ninth Circuit Stephen S.W.”217 hopes for leniency to a cooperating witness without How Courts Are Impeding Fair Disclosure In Criminal Cases .”216 The court reasoned further that is receiving benefits in exchange for testimony. be received with suspicion.. It found no information to support the immunity claim.218 During her testimony. testified that she reported the have the best lawyer money can buy or the assault to Young and walked him and members court can appoint. A. who denied any by Withholding connection to Young and the events surrounding Incentive/Deal Information the shooting.219 The court rejected both defense claims and affirmed Young’s conviction. Although there are inherent risks. or in fellow gang members committed the murders.212 that a criminal charged with a serious crime understands that a fast and easy way out of trouble with the law is not only to Specifically. that he could make no guarantee sometimes fail to disclose the fact that the witness of immunity.’s trial account was motivated by favors she received from the State.W’s testimony about the use of informant testimony: changed only after the State relocated her out of the housing project. A. contradicted her earlier version of events — she implicated Young and four other gang members Never has it been more true than it is now in the murders. but to cut a deal at of his gang around the neighborhood to identify someone else’s expense and to purchase 33 her attackers. “true account” to the officer and assistant State’s “The more uncertain the inducement. Young also argued that [T]he evidence of such a witness ought to prosecutors failed to provide him with her new.W.W. Young pointed out that A. The Supreme Court has also raised concerns First.

there lists all the special circumstances. the U. According to Professor Cassidy. testimony to please the government. prosecutors in death penalty considered exculpatory evidence subject to cases in particular rely on informant testimony mandatory disclosure to the defense under the when they have little independent evidence Due Process Clause of the Fifth Amendment. the prosecutor makes no initial promises snitch used to supply the motive and to the witness. precisely and the prosecution is required to disclose that because the witness does not know exactly what benefit to the defense.”225 against the defendant: Despite the concerns and the attention that the use of informants has received from courts and I’ve noticed that in death penalty cases legal experts.” prosecutor’s satisfaction with his testimony.223 he will get for his cooperation.224 “[A] promise.) As to are three models of cooperation. Michael Cassidy prosecution’s case even if that means not being completely truthful. the prosecutor and the necessarily present simply from the raw defense attorney bargain for the appropriate facts of the crime. to the witness “the defense is handicapped in knowing that his fate depends upon the cross-examining the witness for bias. and/or (3) establish at prosecution and informant witnesses are made. At the conclusion of the witness’s intentionality requirements not testimony. the risk is that the witness. reward or inducement to a According to Michael Hersek. will conform his testimony to best support the — r. “The more uncertain the inducement. (2) show in which cooperation agreements between the premeditation.”221 an incentive in exchange for his testimony.227 In Model the special circumstances. creating any legally cognizable ‘promise’ subject to jury when a government witness has been offered disclosure. In Without discovery of the oral assurances made this scenario.2 Massachusetts Attorney General’s office. which if found true by the According to Professor R.222 charge and sentence based upon what the prosecutor assesses to be the value of the witness’s testimony to the prosecution’s case. makes a first degree murder eligible former Chief of the Criminal Bureau in the for the death penalty.”226 34 informant claims that the defendant This is best understood by considering the ways admitted the crime). (Pen.”228 In Giglio v. I’ve seen the One. Michael Cassidy. California State government witness in a criminal case is Public Defender. the guilt phase the special circumstance allegation. and hopes for the very best. Supreme Court held that a prosecutor must inform the . the “impact of Giglio in terms of snitch testimony is used to (1) bolster guaranteeing meaningful disclosure to defense shaky identity testimony (where the counsel has turned out to be largely illusory.S. Informants typically cooperate and provide the greater the witness’s incentive to tailor his information in exchange for some sort of benefit. however. jury. United States. Code § 190.

Thus.230 According to Three) and the partial falsity of these statements Professor Cassidy. hopes. the witness is allowed to plead with the prosecution’s theory of the case. in the agreement to “tell the truth” is really an Maryland without technically committing a obligation to testify to what the prosecution Brady violation. testify to what the prosecution wants. “the defense is handicapped in cross- his testimony.. but the disclosure obligations prosecutor.. decides cooperation of the witness.229 Of the three models. Having the witness enter a guilty plea prior to The prosecution. witness until after the trial concludes. the witness knows his fate depends upon the “tell the truth” is really an obligation to prosecutor’s satisfaction with his testimony and. and the prosecution testifying.e. The witness can testify that he is cooperating ‘because it is the Under Model Three.In Model Two. this in cases in which there is incentive to testify provides the greatest disadvantage to the untruthfully. In this way. At the same time. or expects the “truth” to be. the obligation in the agreement to accomplishes two things.g.232 that the witness will live up to his side of the bargain. under Without discovery of the oral assurances made Giglio the prosecutor is required to disclose to to the witness by the prosecution in Models One the jury that the witness is receiving a benefit for and Three. wants.”231 A critical fact to be by deliberately diluting the favorable aspect of underscored in this scenario is that the the benefit conferred while still ensuring the prosecution.”233 A mere hope or expectation of very clear (i. to best support the prosecution’s case. hopes. the what is “truthful” testimony. these agreements are written cannot be exposed successfully on cross- in such a way that the witness’s “obligation is examination. but the leniency by a cooperating witness or his counsel prosecutor’s obligation is open-ended (e. absent an prosecutor will consider whether to file a affirmative representation by the prosecution. This guilty to a lesser offense and is sentenced before raises serious concerns since these decisions are providing testimony. Not only must the prosecutor trust triggered by Giglio do not apply. the obligation prosecution is violating the spirit of Brady v. in Models One and Three. As in the first model. therefore. examining the witness for bias. the witness can honestly testify that no promises have been made in exchange for his testimony. and the prosecution alone. but delaying the sentencing of that alone. has incentive to conform his testimony or expects the “truth” to be. even though there is clear incentive for the witness to conform his testimony to align How Courts Are Impeding Fair Disclosure In Criminal Cases . the prosecution the witness’s level of cooperation known to the is able to circumvent the risk of a Brady violation sentencing judge). the witness pleads guilty right thing to do’ (Model One) or can testify that before testifying but sentencing is delayed until ‘what happens to me is up to the judge’ (Model 35 after the defendant’s trial. substantial assistance motion and/or will make Thus. but because a deal has been made. the does not trigger Giglio disclosure. decides what is “truthful” testimony. because the prosecution’s side of the bargain is open. Thus. to tell the truth).

Violent (70) Non-Violent Incentive/Deal Decisions Non-Violent 31% Types of Incentive/Deal Violent Information Violent 69% State Made Deals = 42 Admitted Self-Interest = 11 Unexplained Receipt of Benefits = 12 Evidence Suggesting Self-Interest = 14 Insufficient Detail = 22 Unexplained Receipt Figure 16 Of Benefits 12% Admitted Evidence Suggesting Self-interest 11% Self-interest 14% State Made Deals Insuffient Detail Evidence Suggesting Sel Unexplained REceipt of B Insufficient State Made Deals 42% Detail 22% Admitted Self-Interest Percentages do not Figure 15 total 100 due to rounding. prosecution-made deals with witnesses. Non-Violent (31) v. 12 involved prosecution Violent Crimes Overrepresented witnesses receiving unexplained benefits. Incentive/Deal Information The incentive/deal category of decisions reveals Conclusion certain interesting connections. The side- is ample evidence to suggest that there are a by-side pie charts in Figure 16 illustrate the significant number. which is noticeably higher than how many of the decisions in the Study Sample the percent of violent crimes — 55 percent — in are Model One or Model Three decisions. 11 contained witnesses admitting a self-interested reason to testify. Nearly 70 percent of the incentive/deal decisions involve While it cannot be determined from the record violent crimes. See Figure 16. Violent (340) Non-Violent a self-interested motive to testify.234 Out of the 101 overrepresentation of violent crimes in incentive/deal decisions identified. and 14 36 in Incentive/Deal Decisions included information suggesting the witness had Non-Violent (280) v. . 42 involved incentive/deal decisions. See Figure 15. there all the decisions in the Study Sample. Violent Non-Violent 45% Violent 55% Figure 15 shows the percentage of each type of incentive/deal information in relation to all 101 incentive/deal information decisions. 3. The existence All Decisions of incentive/deal information could not be substantiated in 22 decisions.

235 Whereas only 16 and other trial safeguards are necessary to assist percent of all decisions involve information of juries in evaluating witness credibility. As illustrated in the side-by-side charts in Figure Because of the inherent unreliability of 17. 36 percent of the Brady prosecutors fail to disclose the fact that they are violation decisions involve incentive/deal presenting a cooperating witness or a witness information. 37 notion that judges may find it more challenging And the defendants do not have the benefit of to view non-impeachment exculpatory the cautionary jury instruction to which they are information from the defense perspective than entitled. See Figure 17. rules requiring disclosure in Brady violation decisions. who expects to receive a favor. incentive/deal information is overrepresented informant testimony.239 Figure 17 How Courts Are Impeding Fair Disclosure In Criminal Cases . As Professor Cassidy recommends. Juries are left to The 20 percentage point difference shown in weigh the credibility of the informant testimony Figure 17 suggests that courts may have an easier without knowing the testimony should be viewed time appreciating the value of impeachment with suspicion.” 238 To address s the inherent problems in dealing with informant witnesses. despite disclosure rules and trial they do impeaching information. there needs to be a broader Other 84% construction of Giglio by the courts. safeguards. The defendants are denied the information than they do exculpatory opportunity to cross-examine these informants information. rewards. Thus. These findings also reinforce the about the self-serving nature of their testimony. there remains a high risk that cooperating witnesses will testify falsely.237 Overrepresented in Brady Violation Decisions Courts have acknowledged “the reality that the 9) Government has ways of indicating to witness’s All Decisions counsel the likely benefits from cooperation Incentive/Deal 16% without making bald promises. and wrongful Incentive/Deal Information convictions will result. defendants are denied access to these safeguards. juries will believe that testimony.236 When incentives or deals. and 4) Brady Violation Decisions inducements” under Giglio to capture any eal statement by a government agent to a witness Incentive/Deal 36% that the agent knows or reasonably should know ons may be construed by the witness to suggest Other 64% favorable consideration on a pending or anticipated criminal charge. courts should broaden their definition of “promises.

. In 188 decisions. 40% Figure 18 is a graph showing how 20% courts resolved the 210 decisions in 10% which favorable information was 0% No Violation withheld or disclosed late. . WItHHolDIng oF FAVorAble InForMAtIon n Strickler v. These decisions 100% turned on the question of materiality. The Violation (188) (22) defendant prevailed in only 10 percent of these decisions. VII. Exculpatory information tends to negate the guilt of the The 210 favorable information decisions accused or mitigate the defendant’s sentence.e. See Figure 18 Figure 18. the Supreme Court distinguished “real” Brady information from “so-called” I Brady information.240 “Real” Brady information is favorable information that would be deemed “material.245 The study identified 210 Information Decisions decisions in which favorable by Brady Claim Resolution information was withheld or disclosed late.243 The duty to disclose unknowable. 38 Favorable information includes both exculpatory and impeachment information. would change the outcome of a case. The true number is a government witness.241 One purpose of this study was to assess the extent to which Brady violation claims involve the withholding of favorable information. “So-called” Brady information is all other favorable information. Greene.242 represent a small fraction of all cases in Impeachment information tends to have a which prosecutors withheld information negative impact on the credibility or reliability of from the defense. impeaching information is the same as the duty to disclose exculpatory information244 and applies without regard to whether the information would be admissible at Withheld Favorable trial. the 80% 90% court deemed the information not y Violation material or concluded the late Violation 60% disclosure did not materially prejudice the defendant.” i.

For example.248 When this fact was moved straight to the question of materiality. not a Brady violation decision.247 Thus. Nonetheless. Sullivan. The Brady claim was based on the A. Courts expressly prosecution’s failure to disclose a composite State the Information drawing and its accompanying description of the suspect based on information furnished by the Is Favorable victim immediately after the attack. the trial court found the non- disclosure of this information constituted a Brady How Courts Are Impeding Fair Disclosure In Criminal Cases . prosecutor failed to disclose to the trial prosecutor critical information she learned at the time of the preliminary hearing regarding the Courts often skipped over the favorability eyewitness’s failure to identify the defendants at prong of the Brady analysis altogether and the post-arrest show up. many courts issuing defense.” they often used language that exculpatory or acknowledged the exculpatory or impeachment 39 character of the information. its information as “favorable.250 question of materiality. Salgado was charged with attempted independent analysis of favorability based on the murder and assault with a deadly weapon. but concluded it could be cured through information was being withheld. Decisions in the characterizing the information. Allison. Courts Acknowledge “favorable. the district court Study Sample rarely articulated whether a said that the failure to make an identification particular piece of information was favorable or “constituted evidence that was favorable to the not.”249 Despite finding the information decisions skipped the discussion of information favorable. central issue at trial was the identity of the perpetrator. What was remarkable about the composite drawing was that Of the 210 favorable information decisions.251 The facts. where value of the information. the Research Team looked to the court’s Rather than expressly characterizing withheld express articulation of favorability. the victim One example.” courts were more likely acknowledgment of the exculpatory or to acknowledge the exculpatory or impeachment impeachment value of the information. uncovered at trial. 22 of which were Brady violations. the court concluded that the failure to favorability altogether and moved directly to the disclose it was not materially prejudicial. the Research the testimony of a detective and an instruction Team found that looking to the courts for addressing the failure to disclose.246 Though many courts did not explicitly refer to information as b. police and Salgado’s appearance. In the Study Sample. or. is positively identified Salgado at trial as his Moya v. in order to Impeachment Value tabulate the total number of decisions within the of the Information Study Sample in which favorable information was withheld. in it portrayed a person very different in appearance only 45 did the court explicitly use the word from Salgado. In guidance was of limited use. in which the pre-trial attacker. researchers implemented an v.In assessing the frequency with which favorable violation. in Salgado the court was silent. despite the “favorable” in characterizing the withheld differences between the victim’s description to the information.

the court held that it “plainly has immediately after the attack. The court concluded that the non- exculpatory or impeachment value of information disclosure of this information was “not involves the non-disclosure of information that prejudicial to Gentry when considered calls into question prosecution efforts to present a collectively in the context of the evidence witness as neutral and disinterested.252 a carefully worded argument intended to suggest that Hicks received nothing in exchange for his testimony. the accompanying description of the suspect court found that Dyste had in fact acted as a paid were clearly exculpatory evidence that informant for Detective Pfitzer during the should have been disclosed to the defense. a notion that is clearly belied”257 by relying on the cumulative nature of the the evidence. presented at the guilt phase of the trial. . the court cited the strength of the prosecution’s Despite the court’s acknowledgement that the evidence to reject Salgado’s Brady claim. the court accompanied by a description of a suspect said. concerning Timothy Hicks. Brian Dyste and information. indisputable. it ultimately rejected Gentry’s Brady Another example of a court acknowledging the claims. Gentry was convicted of aggravated first. based on characterizing the undisclosed information as information furnished by [victim] favorable. undisclosed information had impeachment value. Although the reviewing court failed to use the evidence that included the testimony of two word “favorable” in reference to the withheld government informants. we agree with [petitioner] that that he was not given anything in exchange for the composite drawing and its his testimony[. In Gentry v. but its of the manner in which judicial reliance on responsibility to disclose the information is the Brady rule encourages non-disclosure. “[r]espondent’s insistence that Hicks that differs greatly from the description of received no ‘deal’ in exchange for his testimony is [petitioner]. the court said that “the information to deny a Brady claim is prosecution could dispute the materiality or logically flawed and is another illustration impeachment value of this information.]”254 Rejecting these claims.259 facts and finding the information exculpatory. relevant time period. Further.253 exculpatory and impeachment value by reference to the state court of appeals opinion: Regarding Brian Dyste. More importantly the composite drawing is Likewise.”256 from [petitioner’s] appearance.” the court clearly acknowledged the impeachment Despite agreeing with Salgado on the salient value of the information to the defense. shows a impeachment value” and Gentry could have used suspect whose appearance is very different it to “impeach Dyste’s credibility. it acknowledged the information’s Timothy Hicks. court affirmed Gentry’s conviction and death degree murder and sentenced to death based on sentence.”260 The Morgan.255 Without expressly 40 The composite drawing. the government stipulated that the “State had no relationship with Despite the People’s arguments to the any of its witnesses” and Dyste “testified at trial contrary.”258 Without specifically describing the withheld information as “favorable.

In one such example. an audiotape recording of a police interview with Brooks argued that the prosecution violated his Reaves in which the witness told police. The dissent said. Brooks had been convicted of first- prosecution’s case was witness Kelly Reaves. co-defendant made a subsequent inconsistent if he had received the audiotape. asserting that the present his most vigorous defense with that statement could have been effectively used “to audiotape supporting his client’s views. audiotape to be ambiguous. which led to the man being In contrast. “Mr. Thaler..”266 exculpate [petitioner] and challenge the credibility of the state’s witnesses against him in the guilt and penalty phases of his capital murder trial.267 During the post-conviction prosecutor in closing argument told the jury. Central to the information.C. .”265 This crucial key witness Michael Nelson.263 In that case. “It looked due process rights by failing to disclose this like [Stevenson] just wanted to turn off. skipped over the favorability prong of the Brady analysis altogether and moved straight to the The dissent disagreed. a third decision with man. He was subsequently convicted of aiding strong facts implying the favorability of the and abetting a murder. He punched instruments and perjury. Brooks learned Stevenson drove the car at them. Stevenson’s lawyer.”264 based on Nelson’s false testimony against another person years earlier. favorability of the information was implicit in the facts. you know. however. Stevenson was the driver of a truck from which a passenger shot and killed a And in Brooks v. after the trial. the prosecutor produced arrested and charged with attempted murder. the favorability of the information at issue “[O]ne might consider the language of the was implicit in the facts. a fact which undermines the deemed the information immaterial because the prosecution’s theory at trial. So crucial was this evidence that the Nelson. a prosecutor failed to disclose a in the province of the jury. Tennessee. … Such matters are Trevino v. The perjury charge was it and went directly at the victims in this case.”262 over 34 percent of the Study Sample decisions involved the withholding or late Stevenson v. evidence corroborated Stevenson’s testimony that How Courts Are Impeding Fair Disclosure In Criminal Cases . was entitled to statement. .261 The court turned the truck. proceedings well after the trial... and the reviewing court rejected his Brady claim on the In some decisions in the Study Sample. The dissent disagreed.. In many of these decisions. In either case. concluding this non- question of materiality. Yates is another decision in which the disclosure of favorable information. who degree felony murder and sentenced to life in testified that Stevenson drove his truck directly at prison based in part on the testimony of Michael the victim. The testimony that Nelson had a prior conviction for forged was it was driven directly at them. The trial court denied Information Implicit Stevenson’s motion for a new trial. it seems co-defendant’s written statement linking someone clear from the audiotape transcript that Stevenson 41 other than Trevino to the crime. disclosure was a Brady violation. Favorability of the he was trying to drive away and not aiming the truck at the victim. important impeachment information about its Turn into the lane and just take off. finding there in the Facts was nothing material in the tape recording. courts same basis.

the most important point is that valuable information that could have helped bolster the defense theory. when the prior information from the defense. from late disclosure Finally. it would not have made a conduct “a serious professional failing[. material favorable information is unimportant and need not be disclosed.”268 The court reasoned that “[a]s a Conclusion professional and ethical matter.”270 wide range of withholding. Brooks’ conviction. the court declared the prosecution’s and. Withholding of favorable. the court went directly to the question of materiality. the prosecution should have discovered this important The 210 favorable information decisions in the background information about Nelson before Study Sample represent a small fraction of all calling him as a witness. the undisclosed evidence flawed and is another illustration of the was not material under Brady. courts sometimes deny Brady claims based on the assertion that the information is cumulative Ultimately. it is not readily apparent court found that because Brooks impeached what or how much information a jury will find Nelson on other grounds. The true number convictions “were obtained by the very same is unknowable. the court admonished the prosecution to complete non-disclosure. led to a more effective trial strategy. Without explicitly finding this information D. the court concluded that Relying on the cumulative nature of the “although this issue is uncomfortably close to information to deny a Brady claim is logically the constitutional line. Affirming juror’s assessment of a witness’s credibility.]” but difference in the outcome of the case.”272 The the eyes of the jury.]”271 materially prejudice the defendant.”273 problematic nature of the materiality standard and the manner in which judicial reliance on the Brady rule encourages non-disclosure. One additional instance of providing false testimony in the past would only impeachment can make the difference in a have been cumulative in this case. When the withheld information is favorable.” the court stated. The 210 decisions include a prosecutor’s off ice as was trying Brook’s case.”269 “This is particularly cases in which prosecutors withheld true. or The judiciary’s almost unilateral focus on led to other material information was not materiality conveys a message that non- turned over to the defense. as such. Nelson’s conviction for persuasive. This conceded that “the Brady standard for reasoning ignores the fact that cumulative materiality is less demanding than the ethical information may still be critical information in obligations imposed on a prosecutor. While the courts in 42 for “failing to correct” Nelson’s “inaccurate nearly all these decisions ultimately decided the testimony at trial concerning the extent of his withholding of favorable information did not prior criminal history[. . which it characterized as “a close Favorable Information one.

See expressly calling it favorable. The side-by-side charts in Figure 20 material. favorability was found to be implicit in the facts. 23 penalty decisions. though not deemed never at all. and in 40 percent of these decisions the Research Team discerned Favorable Decisons favorability based on Withheld Favorable 53% the facts. through independent analysis. Other (28) Death Penalty Decisions information. 80 decisions in which the demonstrate that withheld favorable information court acknowledged the exculpatory or is overrepresented in death penalty decisions as impeachment value of the information without compared to all Study Sample decisions.The number of Brady violations uncovered In addition. Of the 620 Withheld Favorable Information 43 decisions in the Study Sample. was favorable. Favorable Withheld Favorable (210) Decisions v. Specifically. Other (410) All Decisions Figure 19 breaks down the 210 withheld favorable Withheld information decisions into OtheroneDecisions of the three Favorable 34% categories discussed above. over 34 percent Overrepresented in involve the non-disclosure or late disclosure of Death Penalty Decisions favorable information. which. in 38 percent of these decisions the court acknowledged the exculpatory or impeachment Othervalue Decisions of the Withheld Favorable (31) v. and 85 decisions in Figure 20. Other 47% Court Articulation of Favorability Express = 45 Figure 20 Acknowledge = 80 Implicit = 85 Acknowledges Favorability Value 38% Implicit 40% Express Statement 22% Figure 19 How Courts Are Impeding Fair Disclosure In Criminal Cases . information decisions. researchers identified a total of 59 death include 22 Brady violation determinations.274 Within the Study The 210 favorable information decisions identified Sample. See Figure 19. the Research Team found a correlation through this study cannot convey the full extent to between death penalty decisions and favorable which favorable information is being withheld. and in 31 (53 percent) decisions in which courts expressly articulated that prosecutors disclosed favorable information late or the withheld information. in 22 Other 66% percent of withheld favorable decisions the court expressly articulated favorability.

and (2) the thirds. In doing so. As a result. Despite the high stakes involved. prosecutors death penalty decisions. or “so-called Brady. of the 59 disclosure obligations. the prosecutor’s inquiry becomes not whether a piece of information is favorable. . Other (412) that non-material favorable information is Not Material All Decisions unimportant and need not be disclosed. courts found the conflate two distinct issues: (1) the obligation to information not material in 38 or nearly two. disclose favorable information pre-trial. instead fostering Other Brady. not material to the outcome. See Figure 21. only one-third of all court’s application of the materiality standard post- decisions were resolved with a finding that the trial. Where there is a greater volume of evidence. Resolution the current system of judicial review fails to Not Material 34% promote a culture of compliance.275 By comparison.276 Resolution 66% 8) v. judges are more likely to view the undisclosed information as cumulative in nature and.” violations. analyze Brady claims in the post-trial context. the data also The court’s reliance on materiality as the central shows that courts in death penalty decisions inquiry in a Brady violation claim has evolved into overwhelmingly find withheld information not a standard by which prosecutors measure their material. therefore. As illustrated in Figure 21. Taking cues from the way in which courts information was not material. The judiciary’s almost Death Penalty Decisions unilateral focus on materiality conveys a message ) v. but instead whether the Not Material Resolutions information would have made a difference in the 44 Overrepresented in outcome of the case. Other (21) solution Death Penalty Decisions aterial Not Material 64% Other Resolution 36% Figure 21 That death penalty decisions are more likely to result in a finding that the undisclosed information is not material could be related to the greater volume of evidence typically introduced in capital cases.

VIII. the withholding of favorable information is rarely found to violate Brady. Of all the decisions. the government has a nearly perfect record when defending late disclosure of favorable information. SUMMAry oF StUDy FInDIngS AnD ConClUSIonS u Application of the materiality standard produces arbitrary results. u Courts almost never find Brady was violated by the late disclosure of favorable information. The study demonstrates the arbitrary nature of the materiality standard. In those decisions where the prosecution failed to disclose favorable information. the defendant prevails on the question of materiality in only one of every 10 decisions — i. Of the 65 decisions that involve late disclosure of favorable information. And. u Statements are more likely to be disclosed late. with the court concluding the information was not material. this data demonstrates that the odds are almost always in the government’s favor.. u Disclosed late or never disclosed at all. The study identifies hundreds of decisions in which favorable information was disclosed late or never disclosed at all. Of the decisions involving the late disclosure of favorable information. the prosecution wins 90 percent of the time. nearly half involved statements. On the issue of materiality. This means that.e. for the decisions in this Study Sample. only one resulted in a Brady violation finding. different courts may ultimately resolve a Brady claim differently. 45 u Materiality determinations overwhelmingly favor the prosecution. How Courts Are Impeding Fair Disclosure In Criminal Cases . it still won 86 percent of the time. in similar factual contexts. Even when evaluating the same information. and applying the same articulation of the materiality standard. only four percent result in a court finding that the prosecution violated Brady. within this group.

Nearly two-thirds of the death penalty decisions resulted in a finding that the withheld information was not material. The statistical analysis reveals a strong correlation between Brady violation decisions and incentive/deal information. and instead focus on the defendant’s efforts to find information. u Favorable information is more likely to be disclosed late or withheld entirely in death penalty decisions. In just over three percent of the decisions. but only 34 percent of all the decisions studied. courts shift the inquiry away from the prosecutor’s obligation to disclose favorable information. u Some courts engage in burden shifting by denying Brady claims upon a finding that the defense could have obtained the information on its own with due diligence.  By comparison. By employing this due diligence rule. courts excused the prosecutor’s failure to disclose favorable information by imposing a due diligence obligation on the defendant. only one-third of all the decisions studied were resolved with a not material finding.   u Death penalty decisions are more likely to be resolved with a finding that the information is not material and almost always upon a finding that the information is cumulative. 46 u Brady claims involving information on incentives or deals are more likely to result in a Brady violation finding. Favorable information was never disclosed or disclosed late by the prosecution in 53 percent of decisions involving the death penalty. . 36 percent of the Brady violation decisions involve incentive/deal information. Whereas 16 percent of all the decisions involve incentive/deal information.

disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor. 1.”279 “It relies on state law.8(d) states that “the prosecutor in a criminal case shall . but it would bind every state and federal prosecutor”280 and has been adopted in every state but California. The first reform mechanism can be initiated by criminal defense lawyers in their current practice and by individual judges..8(d) may overlap with prosecutors’ other disclosure obligations.” 282 Materiality. it is “separate from” any imposed under the “Constitution. in connection with sentencing. is not a factor for prosecutors to consider when making the Whether through the judicial or legislative decision of whether or not to disclose favorable information. statutes. court rules.8(d) of the ABA Model Rules of Professional Conduct. Special Rules of a Prosecutor. or court orders. information would be admissible at trial. Court order for Disclosure of Favorable Information in Criminal Proceedings On Jan. under the rule. Whether through the judicial or legislative process. and prosecutors from using the materiality standard prosecutors need not assess whether the to limit pre-trial disclosure obligations. MeCHAnISMS For InCreASIng FAIr DISCloSUre hile acknowledging the role that prosecutors play in establishing policies and cultures W affecting disclosure.281 Model Rule 3. 2010. A. these reforms would prohibit forward-looking.. 47 Federal and state courts could amend court rules and policies to mandate disclosure of favorable information. such reforms would prohibit prosecutors from using the materiality standard to limit the extent of pre-trial disclosure obligations. is broader than the constitutional obligation established by Brady v.278 The ABA explained that although the disclosure obligation under Rule 3. This section offers three different proposals for addressing the problems identified in this report. procedural rules. not retrospective.Ix. The rule is also process. The other two mechanisms require action by the judiciary or the legislature through their respective rule and lawmaking functions. the American Bar Association (ABA) officially clarified that Rule 3. and. Maryland and its progeny. make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense. State and federal lawmakers could also enact legislation requiring prosecutors to disclose favorable information.283 How Courts Are Impeding Fair Disclosure In Criminal Cases .277 this report focuses on the role of courts in fostering a culture of non-disclosure.

District Judge Emmett G. governing that have the legal authority to hold the prosecutors particular jurisdiction.285 in contempt because their actions did not constitute a specific violation of the contempt statute 18 U. and make it possible for judges to hold in defense attorneys should file a pre-trial motion contempt prosecutors who willfully fail to asking the court to issue an ethical rule comply with the order of the court to disclose order requiring the prosecutor to search his favorable information.S.8(d) — made at the outset of the case — would bind prosecutors To most effectively enforce Model Rule 3. attorneys U. This should “generally makes strategic sense. which requires federal accountable for their deliberate failure to 48 prosecutors to abide by the state laws and rules. after fails to turn over the statement “as soon as granting the Department of Justice’s motion to reasonably practicable” as required by Model set aside the verdict and dismiss the Rule 3.C. which stating that “willful and deliberate failure to allows witness statements to be withheld until comply” with Rule 3. the court should state with the exception of California. attorneys should be specific in requesting the and malicious Brady violations. In that case. Model prepare and sign an order in each case plainly Rule 3. the attorney could also and specifically deter ‘bad apple’ prosecutors lay out the defense theory of the case and because it is not subject to many of the practical describe the kind of information that would be and procedural hurdles that have obstructed favorable and tend to negate guilt. intentional. which requires the The court should issue an order in each case intentional violation of a clear and plainly stating that “willful and deliberate unambiguous court order. Such an order would avoid Thus.8(d) supersedes the Jencks Act. then the federal prosecutor would indictment.8(d). failure to comply” with rule 3.287 prosecutors who deliberately and willfully . Judge Sullivan did not and local federal court rules.S. to put on the record or reduce to writing all there is a growing consensus that the favorable oral witness statements.”286 The motion should cite the relevant widespread use could have a deterrent effect on rule in the local jurisdiction. To the extent it willful non-disclosure. § 530B(a). The presumption that file and disclose all information that “tends to most lawyers will comply with ethical rule negate the guilt of the accused or mitigates the orders creates a reasonable probability that offense. Defense punishment even for deliberate. As a recently enacted statute adopted in every To ensure enforcement. disclose information. A carefully worded order requiring a prosecutor to comply with Rule 3. if a federal prosecutor withholds a the problem that faced the court in the case of favorable statement under the Jencks Act and the late Senator Ted Stevens. § 401.”288 court to order prosecutors to search the files of law enforcement or other agencies where Based on recent discussions with leaders in the favorable information is likely to be found and prosecutorial community and the judiciary.8(d).C.8(d) will be viewed as after the witness testifies for the prosecution. Sullivan be in violation of federal code provision 28 was unable to hold the assistant U.284 contempt of court.S.8(d) will be viewed as contempt of court.

the ACTL proposal died before mitigates the offense. How Courts Are Impeding Fair Disclosure In Criminal Cases .withhold favorable information should be sanctioned for the deterrent value alone.296 While significantly. McGhee.”295 While the American Bar Association requires that all prosecutors disclose information “that Faced with fierce opposition from the Justice tends to negate the guilt of the accused or Department.S. including information material to guilt or sentencing. the American College of Trial threat of bar discipline. in recent years federal judges have also prosecutors to disclose only “favorable begun calling for Rule 16 reform. support of its proposal. do a great deal to prevent reoccurrence of the kind of problems discussed in this report.” state and federal rules reaching the Judicial Conference’s full Advisory governing disclosure obligations vary Committee on Criminal Rules. favorable information without breaking the District Court for the District of Columbia.”294 In 49 bar and individual judges to recognize and counter the problems identified by this study. and. Federal NACDL has long championed discovery Criminal Procedure rule 16 obligates reform. if governing Disclosure so. criminal prosecution.289 In a levels. even if Judicial rule changes.292 Under state systems. In the federal system.” in particular requiring disclosure of all favorable information order is a direct mechanism for both the defense without requiring a finding of “materiality. at the state and federal levels. prosecutors underscored the effectiveness of In 2004. courts are encouraging prosecutors guidelines to improve defendants’ access to to withhold favorable information. would do a great deal to prevent recent amicus brief filed by the National reoccurrence of the kind of problems Association of Assistant U. National District Attorneys Association in the case of Pottawattamie County v. the ACTL explained that “[b]ecause the prosecutor alone can know and weigh what is undisclosed.”293 Clear and consistent materiality. disclosure The findings of this Study lend hard evidence obligations range “from bare compliance with to what supporters for reform have been saying constitutional minimums to more expansive — by focusing solely on the question of disclosure requirements.290 Increased Rules of Criminal Procedure to “codify the rule requests for and imposition of an ethical rule of law first propounded in Brady. seeking to address problems within the consequences and the deterrent value of the federal system. would achieved through judicial rule and policy reform.”291 Ninth Circuit Judge Alex Kozinski and Judges allowing federal prosecutors to withhold other Paul Friedman and Emmet Sullivan of the U. at the state and federal the withholding is deemed harmless. Amendment of Judicial and potentially conflicting responsibilities: to rules and Policies decide whether information is exculpatory. Attorneys and the discussed in this report. he is faced with serious b. whether and when it should be disclosed to the accused.S.297 rule. Lawyers (ACTL) proposed amending the Federal and political embarrassment. Rule favorable information are needed and can be changes.

including the common practice of late disclosure. Under this Act. Compliance with the language of prosecution” with respect to the determination this Act would require that information be of guilt.298 Senators Lisa Murkowski (R-AK) agency. along with a could be detrimental to witness safety. defendants would have increased access to may reasonably appear favorable to the favorable information.305 In those instances where disclosure and Daniel Inouye (D-HI). or Sixty-five decisions.299 The Act would require 50 prosecutors to disclose all information “that If legislation such as this were enacted. 303 The disclosure obligation if its existence is not known. evidence. 306 and exempts all classified Act of 2012. over 10 percent of all the objects that may reasonably appear to be Study Sample decisions. or “by the exercise of due diligence would any guilty plea[. the Act bipartisan group of co-sponsors. The Fairness in Disclosure of evidence Act is a model for sensible and comprehensive The enactment of this legislation would also discovery reform that this study address the major problems discussed in this demonstrates is critically needed. “as soon as is would apply to that which is “within the reasonably practicable upon the existence of [it] possession. custody. to be imposed. that act on behalf On March 15.”300 effectively prohibiting the litigation system-wide. including law enforcement.301 it assessment of whether the information would would address the major problems identified make a difference in the case without the and detailed in this report and it serves as a benefit of hindsight. When prosecutors use government from using the Brady materiality the Brady rule to determine pre-trial disclosure requirement to narrow its disclosure obligation. or the sentence disclosed “without delay after arraignment” or.]”309 it would better inform the . documents. any preliminary matter.” known to the prosecution timing requirement applies “before the entry of team.302 decision-making — the favorability of the information alone would trigger the duty to disclose. the imposition of the due diligence rule. the Fairness in Disclosure of evidence protective order.”308 Moreover.307 standard governing the prosecution’s disclosure obligation. includes a fair mechanism for seeking a 2197. 2012. C. because this prosecution team. obligations. or control of the becoming known. they engage in a subjective Although the bill has not yet been enacted. introduced S. in direct response to the or under the control of the government or that flawed prosecution of the late Senator Ted jointly investigate with the prosecuting Stevens. that model for bringing about sensible discovery assessment is removed from the prosecution’s reform through legislation. and the frequency with which The Act would require prosecutors to disclose incentive/deal information is not disclosed. involved late favorable to the defendant in a criminal disclosure. legislation Codifying become known” to the prosecution team. data. to provide a clear and meaningful information from the disclosure obligation. report. all “information. thereby reducing Brady defendant.304 The Act defines the term “prosecution team” broadly Fair Disclosure to include all individuals and agencies.

the favorability defendants to plead guilty. the Act does not base the prosecutor’s disclosure obligation on the defendant’s knowledge or access to the information. On its face. 51 such as witness statements. This legislation would also significantly reduce. statements by the defendant.310 of the information alone would trigger the duty to disclose. Providing clear standards aimed at ensuring compliance would remove much of the gamesmanship that is commonplace in the discovery process and result in less litigation and a fairer process. The Act would also set forth broad definitions of the covered information and the prosecution team. and possibly eliminate. and incentive/deal information.defense on the strength of the government’s case. This legislation would mandate a comprehensive disclosure obligation that should foreclose attempts to impose the due diligence rule on the defense. Prosecutors would be required to disclose favorable information that previously would have been subject to the due diligence rule. The Fairness in Disclosure of Evidence Act is a model for sensible and comprehensive discovery reform that this study demonstrates is critically needed. and place a due diligence requirement on the prosecutor to seek out the information. thereby reducing the pressure on innocent Under the Act. criminal records. How Courts Are Impeding Fair Disclosure In Criminal Cases . the imposition of a due diligence requirement on the defense. police reports.

FInAl tHoUgHtS n Brady v. Whereas the courts are charged with applying the Brady analysis to protect defendants’ due process rights. as well as other courts. the Supreme Court recognized that criminal defendants have a due process I right to favorable. are not asking whether the prosecution has fully met its disclosure obligation. material its parsimonious application of that standard. The purpose of the Brady decision was not to limit a prosecutor’s disclosure obligations by the constitutional parameters articulated in the decision. obligation is measured solely by the defendant’s are not asking whether the prosecution has fully due process rights. even as some courts encourage disclosure of more than what is constitutionally required and what ethical rules dictate.” Yet. but whether the prosecution withheld favorable. Maryland. as such. at the “earliest feasible opportunity. 52 These two separate questions are often conflated. and prosecution withheld favorable. As explained by constitutional right to due process. according to the ABA Criminal Justice Standards. many other courts disregard these directives and continue to analyze and resolve Brady claims in a way that reinforces the incorrect assumption that the prosecutor’s Courts. since the obligation extends beyond Brady. when properly analyzing Brady claims. but whether the materiality to assess disclosure obligations.8(d)311 to disclose favorable information “as soon as reasonably practical” or. The courts’ reliance on met its disclosure obligation. the disclosure decisions made by prosecutors are not so constrained — the prosecution’s disclosure obligation extends far beyond Brady and. The Supreme Court. The American Bar Association has expressly articulated that prosecutors have an obligation embodied in ABA Model Rule 3. x. Ninth Circuit Judge Alex Kozinski. Courts. has repeatedly stated that prosecutors should err on the side of disclosing more than the constitutional minimum. thereby violating a defendant’s have resulted in a rigid materiality rule with a bar set dangerously high. material information and that the prosecutor has an obligation to make that information available to the defense. . Brady has no role in determining that obligation. thereby violating a defendant’s constitutional right to due process. information. Courts have made clear that prosecutors are bound by ethical rules beyond Brady that require the disclosure of favorable information without regard to materiality. when properly analyzing Brady claims. material information. misleading courts and prosecutors to conclude that prosecutors are not obligated to turn over favorable information unless it is deemed material.

More addition to these 22 decisions. In favorable information is a common problem.313 Compounding the unduly narrow construction of The current system’s reliance on prosecutors “materiality” is the unworkable nature of the to make these decisions does not materiality standard itself. disturbing issues arise within Brady jurisprudence that can effectively relieve prosecutors of their The 22 Brady violation decisions identified in the disclosure obligations and deprive defendants’ study represent just a small fraction of all decisions access to favorable information. 188. violation was not found. in that fulfillment of that obligation is not important. judges of a due diligence requirement on the defense. as this study demonstrates. in which courts imposed a due diligence requirement. material to the outcome of the case. held that the interferes with the truth-seeking process. secure in the belief that. it sends a message favorable information was withheld. but favorable information Despite the large number of late disclosure was withheld or disclosed late. may have an easier time appreciating the value of impeachment information than of exculpatory Moreover. 36 percent involved system. researchers identified 101 decisions that the entire record is complete. Out of 210 decisions where have obtained the information. only one high. Of the 22 Brady violation responsibility to an opponent in an adversarial decisions in the Study Sample.312 percent of all the decisions. [courts invite] prosecutors to avert resulted in a Brady violation finding. Agurs. accurately assessing what information is incentive/deal information. “the significance of an item of informant testimony and wrongful convictions. In evidence can seldom be predicted accurately until this study. researchers than 10 percent of the Study Sample decisions uncovered another 188 decisions in which a Brady involved late disclosure of favorable information. their gaze from exculpatory evidence. When a The findings in this study support Judge Kozinski’s court refuses to hold the prosecution to its conclusion that the materiality bar is set disclosure obligation because the defense could unreasonably high. and 53 information or timing of the disclosure was not unfairly burdens the defense. Thurgood Marshall as “a pretrial standard that virtually defies definition. This study shows How Courts Are Impeding Fair Disclosure In Criminal Cases . several information. if it turns up after A second troubling issue is the court’s imposition the defendant has been convicted. By raising the materiality bar impossibly decisions identified in the Study Sample. suggesting that courts material poses a significant challenge.”314 For a prosecutor involved the promise or insinuation of favor in poised to try to win a case while meeting his exchange for testimony. the court. or 90 percent of the decisions. As incentives offered in exchange for informant Justice John Paul Stevens pointed out in United testimony — despite the strong link between use of States v. described by Justice facilitate fair disclosure. or three immaterial.” The materiality standard requires prosecutors to predict what Perhaps most troubling of the issues identified by information will be relevant to the defense’s case this study is the prevalence of government before the defense’s case is known or developed. Late disclosure of where favorable information was withheld. will dismiss the Brady violation as Researchers identified 19 decisions.

As Ninth Circuit Chief To bring clarity to this issue. the prosecutor has to be applying an overly stringent definition of completely neutral. that the manner in which courts review Brady In deciding whether favorable information is claims fosters a culture of non-disclosure by: (1) material to the defense.8(d) to disclose favorable in the outcome of a case and on that basis decides information that “tends to negate the guilt of the whether or not to disclose it.8(d) of the ABA ethical rules advocate with the pressure to prosecute and win governing disclosure. “[o]nly judges can put a stop rights they deserve. reform should come through passage. That to. of a statute consistent with The prosecutor is a minister of justice but also an Model Rule 3. if withheld. and there are real consequences for Until the materiality standard is removed as withholding favorable information.” unilateral. our favorable information. there needs to be reform. provide prosecutors Judge Kozinski acknowledged. (3) failing to remind appreciates about the case. 54 system. and (4) discovery of exculpatory evidence through regularly excusing the prosecution’s late disclosure additional investigation — may appear only or non-disclosure of favorable information. The prosecutor’s accused or mitigates the offense. would make a difference ABA Model Rule 3. disclosed. He must be in a position to understand the favorable information by failing to make specific defense perspective — what the defense knows and reference to its favorability. He decides whether a single piece of individual judges can order prosecutors to abide by information. non-transparent application of an unworkable materiality standard may explain why “Society wins not only when the guilty are otherwise ethical prosecutors fail to turn over convicted but when criminal trials are fair. the system will a barrier to fair disclosure. Reform also could be cases.”315 While prosecutors bear some responsibility.”316 The current system’s reliance on prosecutors to make In light of the adversarial nature of the justice these decisions does not facilitate fair disclosure. the system will remain unaccountable to defendants. which as an advocate he cannot materiality. at the state it is also true that they are in a conflicted position. “What may appear prosecutors of their ethical obligation to disclose exculpatory to a defense attorney — or lead to the non-material favorable information. and federal levels.”317 Until the materiality standard is removed as a barrier to fair disclosure. and there are real remain unaccountable to defendants. it is unreasonable to rely on prosecutors alone to fix the problem. In the meantime. consequences for withholding favorable information. in his view. system of the administration of justice suffers when any accused is treated unfairly. (2) minimizing the importance of be. tangentially relevant to a prosecutor. He is tasked with controlling information attained through amendment of state and federal and playing gatekeeper to what information is judicial rules in the same manner. . and ensure that epidemic of Brady violations abroad in the land” those facing criminal charges are accorded the which. “[t]here is an and courts with clear guidance.

this report may specifically refer to the information at issue as “exculpatory.” or “mitigating” information. Harmful Error: Investigating America’s Local Prosecutors. 14. Id. Innocence Project. Research Director. the District Attorney’s Office initiated grand jury proceedings to investigate the non-disclosure of the lab report on the blood. See American Civil Liberties Union of New Jersey. at 1372. defines “favorable” to include information that is “exculpatory. depending on its precise nature. 2014) (on file with recipient).pdf. 10.innocenceproject. at 1356. Id.S. including that which would reduce the penalty.com/news/washington/judicial/2010-12-08-prosecutor_N. Investigative Series. to Kathleen “Cookie” Ridolfi. USA TODAY. Id. See Peter Goldberger. Id. West. 1371 (Ginsburg. Bagley. 419.enDnoteS 1.innocenceproject.php. Ellen Yaroshefsky. CHI.amlaw. In all such instances.pdf. Id. Court Findings of Prosecutorial Misconduct Claims in Post-Conviction Appeals and Civil Suits Among the First 255 DNA Exoneration Cases (2010). at A1. inversely. 6. the Supreme Court has further clarified that the prosecutor’s duty extends to not just exculpatory information but to all favorable information. J. when discussing the type of information that prosecutors must disclose under Brady. 17.S. REV. http://www. 5.” “impeachment. How Courts Are Impeding Fair Disclosure In Criminal Cases . Greene. 9. 1999.” “impeaching. “[i]n order to comply with Brady. 7. The Innocence Pr o j e c t . 11-14. 263. http://usatoday30. available at http://digitalcommons. including the police. 16.org/docs/Innocence_Project_Pros_Misconduct. Emily West.’” Strickler v. 280-81 (1999) (quoting United States v. 131 S. Northern California Innocence Project. 667. available at http://www. Id.publicintegrity. 563 U. Since its decision in Brady. ‘the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf[]. 1375. Trial and Error: A Comprehensive Study of Prosecutorial Conduct in New Jersey (September 2012). “the duty encompasses impeachment evidence as well as exculpatory evidence” and thus. 1350. 15. Id. rather it extends to mitigating information. 676 (1985) and Kyles v. Brady v. Codifying the Brady Rule. Ct. at 4-5. 1943 (2010) (summarizing the purpose and work of the two-day symposium). 18. 4. Ridolfi & Maurice Possley.. Foreword: New Perspectives on Brady and Other Disclosure Obligations: What Really Works?.scu. Thompson. May 2013. Id. Professor of Law.” and “mitigating” information as types of “favorable” information and. West. Emily M. Ken 55 Armstrong & Maurice Possley. THE CHAMPION.S. when exploring individual decisions or data sets. 12. However. The Innocence Project standard for exoneration is rigorously confined to cases where there is conclusive evidence of innocence established as a result of DNA testing. Id.” However. therefore. Connick v. Jan. Maryland. Innocence Project. Id. 11. 13. 8. supra note 2. Email from Dr. dissenting) (2011). Trial & Error: How Prosecutors Sacrifice Justice to Win (Parts 1-5). based upon the spurious reasoning that “the lab report would not be Brady material if the prosecutors did not know Thompson’s blood type. Specifically. at 1372-74. Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009 (2010). 437 (1995). This duty is not limited to that which goes to guilt. Kathleen M. As such. After the trial court vacated the carjacking conviction. this report defines “exculpatory. TRI. Whitley. Connick at 1375.com/nj/aclu_report09-12. 514 U. at 9 (noting that the Brady decision dealt with sentencing mitigation and that the majority never actually used the word “exculpatory”).org/Content/Holding_Prosecutors_Accountable. Id. 373 U.” Id.edu/ncippubs/2/. 473 U. this report generally uses the term “favorable. http://www. 31 CARDOZO L.” and/or “mitigating” in nature. 3.law. Holding P r o s e c u to r s A c c o u n ta b l e .org/accountability/harmful-error. see generally The Center for Public Integrity. 527 U.S.S.. 2. 83 (1963). Misconduct at the Justice Department. ___.htm#.” “impeachment. Santa Clara University School of Law ( Jan.usatoday. the District Attorney terminated these proceedings after just one day. available at http://pdfserver. 27.

available at http://www. Case No. The Texas Tribune. Id. 122-25. April 1. 32. Id. 19. which was appointed in February. See Statement of Attorney General Eric Holder Regarding United States v. 393. 33. at 1. AP-76663 (Tex. Texas Monthly. 22.texastribune.statesman.washingtonpost. 46. 09-0198 at 2 (D. . Id. WASH. 4 Cir.com/2012/07/08/us/exonerated-in-wifes-killing-father-renews-bonds-with-son. 25. 395-96. Probable Cause Order at 13. Feb. 26.com/news/news/anderson-court-of-inquiry-set-to-begin/nWFRp/. 34. 2013) [hereinafter Probable Cause Order]. containing the Methodology and Guidance Document. the phrase “Study Sample” refers to the complete set of 1. 44. 2011). at 1357 (citing State v. at 6. 8..justice. Id. 38. Lawyers Spar Over Documents in Anderson Inquiry. Schuelke Report at 4. Ex Parte Morton. dated April 7. see also Sullivan Order at 54. It is noteworthy that the prosecution. 390-91. 12. Schuelke Report at 12. Cause No. Department of Justice (April 1. Brandi Grisson. 2012) [hereinafter Sullivan Order]. 2013. Memorandum Opinion. Dist.C. March 15. a Father Renews Ties With Son. Stevens. 2012. March 27. 2012. POST.2d 552 (La.statesman. available at http://www.. at 1376. 2013. 9. Id. No.D. 2012) [hereinafter Schuelke Report]. Feb.com/wp- dyn/content/article/2009/04/01/AR2009040100763. 30. See Chuck Lindell. Chuck Lindell. 4. 29.”). Exonerated in Killing of Wife. Oct. available at http://www. See also Carrie Johnson & Del Quentin Wilber.”). STATESMAN. 4. 2009). App. 37. 36. 39. Nina Totenberg. Holder Asks Judge to Drop Case Against Ex-Senator Stevens. Seeks to Void Stevens’ Conviction. 2002)). The Texas Tribune. STATESMAN. at 5. Feb. 42. Case No.html. Id. App. provides a detailed explanation of the criteria and methodology used to identify this set of decisions. 24. Brandi Grisson. April 2. at 6-9. Theodore F. 47. Justice Dept. 21. AM. Mark Norwood Indicted in Second Austin Murder. 56 32. Id. 107-08. 38. 497. Lawyers Spar Over Documents in Anderson Inquiry.org/2012/11/09/mark-norwood-faces-grand-jury-second-austin-murder/.org/templates/story/story. Emmet G. Williamson Cty. 23.php?storyId=102589818 (Holder decided to drop the case “rather than continue to defend the conviction in the face of persistent problems stemming from the actions of prosecutors” and the “straw that apparently broke Holder’s back” was the discovery of more undisclosed prosecutorial notes “by the new prosecution team. TX. 28. See generally In re Honorable Ken Anderson (A Court of Inquiry). available at http://www. As used in this report. 31. 2009. Id. Id. See generally Probable Cause Order. 2009. 40. 45.texasmonthly.npr. available at http://www. 2013.html. 500. at 5. see also Pamela Colloff. See generally Schuelke Report. 28.” In particular.D.nytimes. Id. 09-0198 at 2-3 (D. which was eventually determined to be flawed and rife with misconduct. available at http://www. at 3.gov/opa/pr/2009/April/09-ag-288. underscoring that the problem of withholding favorable information is institutional in nature. available at http://www. April 19. Thompson. 20. Id. 43. available at http://www. 12-0420-K26 (26th Jud. Ct. 27. Appendix A.497 federal court decisions analyzed by NACDL and the VERITAS Initiative researchers for this study.com/news/news/anderson-court-of-inquiry-set-to-begin/nWFRp/. Id.com/story/mark-alan-norwood-found-guilty-christine-mortons-murder. NPR. Id. Mark Alan Norwood Found Guilty of Christine Morton’s Murder. 41. In re Special Proceedings. 35. Stevens led the Executive Branch. Sullivan of Investigation Conducted Pursuant to the Court’s Order.html (“Holder assigned a team of top department lawyers to review the case” and “he made the decision [to dismiss the indictment] after a thorough review of the evidence. Probable Cause Order. In re Special Proceedings. 825 So. 2009. Crim. at 3. Nov.C. July 7. AM. was conducted by the Justice Department at a time when the same political party as Sen. the “discovery [of notes contradicting testimony of a key witness] by a fresh team of lawyers and their acknowledgment that the material should have been shared with Stevens’ defense team led Holder to conclude [the case] could not be salvaged. Sullivan Order at 54. Report to Hon.

there is no constitutional right to discovery in a criminal case. 1998) (“[T]here is a reasonable probability that had the evidence been disclosed to the defense. Maryland.3d 102.S.S. it is not a “preponderance of the evidence” standard and the term “material” is not synonymous with the Federal Rules of Evidence definition. 1788-89 (2007).S. 74.N. 59. 141 (2d Cir. REV. Singh v. and Napue v. THE CHAMPION. Whitley. Gardner. 142 F. this report refers to this articulation as the Kyles standard. Favorable information includes exculpatory as well as impeachment information. see also United States v. the test for materiality is whether the suppressed evidence ‘creates a reasonable doubt that did not otherwise exist. 51.3d 1157.S. 263. Bursey. Levenson. developed by skilled counsel … could have induced a reasonable doubt in the minds of enough jurors to avoid a conviction. 373 U. Maryland. 373 U. Codifying the Brady Rule. 514 U. Bagley. at 85. Brady v. Kansas. 2005) (“[T]here is no reasonable possibility that had the evidence been disclosed.” “significant chance of reasonable doubt. May 2013. 373 U.’”) (quoting Agurs. 1364 (2d Cir. 109 (2d Cir. in Weatherford v. 2009) (“[A] materiality showing does not require demonstration by a preponderance of the evidence that disclosure of the suppressed evidence would have resulted in acquittal[. 527 U. See supra note 3. the result would have been different. at 9 (“The Brady majority itself never used the term ‘exculpatory’ to describe the limits of its concern. In 1977.Y. Instead. In addition. 57 55. 527 U. 267 F. in United States v. Ortega v. “Justice Douglas’s constitutional analysis relied on a line of due process cases involving prosecutors soliciting or willfully failing to correct false evidence and a quote inscribed on a wall in the Department of Justice. 52. Id. when articulating the materiality standard.3d 132.” and a “different view of the testimony. 1780. evidence that has some probative tendency to preclude a finding of guilt of lessen punishment. 545. 527 U. THE CHAMPION. 77 (2013). 77. REV. 427 U. at 87. United States v. 2003) (“We also consider ‘whether there was a significant chance that this added item.’” Christopher Deal. 667. Maryland. . Mooney v. 610 F. Scott Sundby.2d 1296. 1975)). 527 U.S. at 434-46). however. accord. ‘[T]here is never a real “Brady violation” unless nondisclosure was so serious’ that a post-trial review leads judges to conclude that it undermined their confidence in the verdict. Fallen Superheroes and Constitutional Mirages: The Tale of Brady v. had set a low floor for fairness at trial.S. Seijo.A.S. United States v.S.’ using the term ‘favorable’ three times to capture the essential characteristic of the covered material. 429 U. Coppa. . cf. 61.”) (alteration in the original) (quoting Strickler v. 514 F.S. 1980) (“Assuming that appellants have established [a suppression by the prosecution after a request by the defense]. 611 F.2d 825. Laurie L. 311 (5th Cir. Holohan. 83. 401. 87-88 (1963). 473 U. Prunty. L. 60 UCLA L.3d 295. one or more members of the jury could have viewed [the witness’s] testimony differently. 832 (2d Cir. 54. Expanding Stare Decisis: The Role of Precedent in the Unfolding Dialectic of Brady v.2d 1213.2d 1357.S. 1969))). 46 LOY. Brady Materiality Before Trial: The Scope of the Duty to Disclose and the Right to a Trial by Jury. [] (1976).”) (footnote omitted). 53. Green. REV. see also Kyles v. 419. Pyle v.D. at 88. 682 (1985) (defining a “reasonable probability” to be “a probability sufficient to undermine confidence in the outcome”). 583 F. Beyond Brady: Using Model 3. 2005 WL 2180467 at *16 (N.’”) (quoting Agurs. 491 F. Maryland. EVID. Id. 411 F. 1975) (citing Shulder v. 49. Strickler.” See Banks v. 427 U. this report refers to this articulation as the Bagley standard.”). 1980) (“In a case in which a general request for exculpatory evidence is made. 2001) (“In this sentence. Brady v. 1223 (5th Cir. Brady. 83. to obtain a conviction. 97.” “reasonable likelihood. Miller.e. they have not shown [the evidence’s favorable character for the defense] and [the materiality of the evidence] because there is no reasonable likelihood that ‘the suppressed evidence might have affected the outcome of the trial. 56.’ The inscribed quote taught that ‘[t]he United States wins its point whenever justice is done its citizens in the courts. while Brady provides an avenue for discovery. Lutes v.S. the Supreme Court clarified that. see also Peter Goldberger. 514 U. 522 F. 774 (9th Cir. For the purposes of discussion. Agurs. Thirteen years later. Strickler v. 60. at 104). Illinois. Strickler.]”) (citing Kyles. Wolff. 643 (2002). 1163 (9th Cir. it referred to material which ‘would tend to exculpate [the accused] or reduce the penalty. 57. Greene. 822 (8th Cir. For the purposes of discussion. 82 N. at 289 (internal quotation marks omitted).’”) (quoting United States v. These alternative articulations used such phrases as “reasonable doubt. 281-82 (1999)). 113-14 (2012) (discussing the creation and evolution of the Brady doctrine) (internal quotation marks and citations omitted). 559 (“It does not follow from the prohibition against concealing evidence How Courts Are Impeding Fair Disclosure In Criminal Cases . 434-35 (1995). United States v. i. L.S. 427 U. the Court appears to be using the word ‘material’ in its evidentiary sense. Colin Starger.8(d) in Federal Court for Discovery of Exculpatory Information.2d 770.U. some courts specifically stated what the standard is not. L. See also Irwin H.”) (internal quotation marks and citations omitted). 58. 33 MCGEORGE L. at 289-90.S. finding a due process violation only when the state ‘knowingly use[d] false evidence . 333 F. Wainwright.S. 263. Ogden v. The cases. REV. Aguiar. FED. at 112). 1974) (quoting United States v. Schwartz. 50. 1305 (5th Cir. 48.” “reasonable possibility.Y. 289-90 (1999). Ricks. March 2010. R.”) (italics and alteration in the original). the Court began a process that would result in the word ‘material’ in the Brady context having an entirely different meaning. Thaler.2d 816. 87 (1963). Duncan. Discovery from the Trenches: The Future of Brady.. at 34 (“Brady is applied retrospectively.

62.2d 1056. 2000) (“Even if evidence is material and exculpatory. courts have created a variety of 58 arbitrary barriers to limit the application of the Brady rule. including the police. 1993) (when “the defendants might have obtained the evidence themselves with reasonable diligence . See United States v. 1356 n.3d 1258. 1998) (“government has no Brady burden when the necessary facts for impeachment are readily available to a diligent defender”). 147 (1st Cir. 565 F. 1996) (holding inadmissible information is “as a matter of law.g. United States. as the Court wrote. 667 (1985) (holding “[i]mpeachment evidence. courts may excuse non-disclosure when (1) the information at issue is “equally available to a diligent defendant[. 1997) (to state a Brady claim a defendant must demonstrate that “discovery of the allegedly favorable evidence was not the result of a lack of due diligence”) (citations omitted). Callahan. L.”) (citations omitted). 120 F.]” (2) the information at issue is “known by the defendant himself and he could have or should have told his lawyers about it[. Hoke. or should have known. Whitley. 1993). UNDERSTANDING CRIMINAL PROCEDURE.S. 928 F. Netherland. 1019 (7th Cir. 1998). United States v. 604 (8th Cir. Dimas. even when the government knows that its key witness has a criminal record and fails to disclose this fact to the defense.3d 1015. Rector v. Kennedy. Clark. 1190 (1st Cir. 1059 (9th Cir. “[s]everal courts have construed the Brady rule to require that. it need not be disclosed. Vol.’”) (quoting Berger v. REV. 514 U. 1991) (“No Brady violation exists where a defendant ‘knew or should have known the essential facts permitting him to take advantage of any exculpatory information. the twofold aim of which is that guilt shall not escape or innocence suffer.S. 473 U. or the wisdom of amending those Rules to enlarge the defendant’s discovery rights. 138.S. See United States v.”) (internal quotation marks and citations omitted). 434 (1995). at 647. Ranney. falls within the Brady rule”) (citing Giglio v. 412 U. We are dealing with the defendant’s right to a fair trial .. 208 F.2d 733. 1983) (“Inadmissible evidence is by definition not material. Id. 701 (2006) (citing Madsen v. favorable to the accused that the prosecution must reveal before trial the names of all witnesses who will testify unfavorably.3d 551.3d at 1355 (“The strictures of Brady are not violated. 150. 92 F. Yet. if the defense could have discovered the criminal record through a search of public records. United States v. United States. 102 (2d Cir. 78. e. Defendants Seek: The Erosion of Brady Through the Defendant Due Diligence Rule.S. the trend now is for the court to rely on the due diligence rule to avoid finding Brady violated. 111 (1976) (reasoning that “there are situations in which evidence is obviously of such substantial value to the defense that elemental fairness requires it to be disclosed even without a specific request[]” because the prosecutor “is the ‘servant of the law.’ Specifically. Sundby. 427 U. United States v. if the information allegedly withheld by the prosecution was reasonably available to the defendant. Bagley. TEX. See also Hoke v. 1277 (11th Cir. 64. Zichittello. 154 (1972) (reversing conviction where government failed to disclose information relevant to the credibility of one of its witnesses)).2d 1183. 269 (1st Cir. at 438-39 (“[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. .S. but it fails to acknowledge the fact that evidence may be inadmissible for some purposes but admissible for others or under certain exceptions. United States v. 1989) (“To be material under Brady. Maryland. at 154. Reflections on Brady v. in the decisions following Brady v. then the evidence was not ‘suppressed’ under Brady and they would have no claim”). 63. it is not suppressed by the government within the meaning of Brady if the defendant either knew. United States v. 154-56 (2012). see also JOSHUA DRESSLER & ALAN C. Agurs. Rodriguez. 3 F. 1981)). REV. and Brady did not create one. 137 F. Parker v. 738 (6th Cir. undisclosed information or evidence acquired through that information must be admissible.S. courts apply the due diligence rule “not just to situations where the defendant had actual knowledge. ‘immaterial’ for Brady purposes.’”) (quoting Wardium v. Maryland.S. 719 F. MICHAELS.2d 1330. but also to situations where the defendant could have obtained the knowledge through due diligence” and impute the knowledge of the defendant to defense counsel. There is no general constitutional right to discovery in a criminal case. United States v.]” or (3) even if the information at issue “is in the exclusive control of the government.3d 72. see. 659 F. 2009) (“there is no suppression if the defendant knew of the information or had equal access to obtaining it”).3 (4th Cir.”).2d 254. 2006). Gershman. Zeigler v. 65. 67. ‘the Due Process Clause has little say regarding the amount of discovery which the parties must be afforded. 47 S. 890 F.”). unless the evidence would be admissible. United States v. 405 U. 295 U. 92 F.’ … or where the evidence is available to defendant from another source. 419. so long as the relevant facts are accessible to a diligent defendant. 1335- 36 (D.S. Generally there are three variations of the so-called due diligence ‘rule. 97.. Thus. 685. 66. [] as well as exculpatory evidence. of the essential facts permitting him to take advantage of any exculpatory evidence. courts frequently refuse to apply Brady to situations in which the defense could have obtained the undisclosed (or late disclosed) information through reasonable due diligence. This admissibility rule not only ignores the role that inadmissible information can play in leading to admissible evidence. 2: Adjudication 145 (4th ed. 990 F. Derr. Dormire. because it never would have reached the jury and therefore could not have affected the trial outcome. 427 U. Agurs. 470.” Kate Weisburd. 514 U.”). 60 UCLA L. Prosecutors Hide. In sum. 162 F. see also Kyles v. In addition to this admissibility rule.” Bennett L.”).C.”). 474 (1963)). however. Kyles. see supra note 58. For example. Johnson. Oregon.3d 602. 558-59 (5th Cir.3d 1350.3d 135. Allen. Brady does not discuss the undisclosed information in terms of admissibility nor does it declare admissibility a precondition for a due process violation. Cir. at 107 (“We are not considering the scope of discovery authorized by the Federal Rules of Criminal Procedure. . 88 (1935)). In addition to narrowing the definition of materiality.

the department doubtless hopes to forestall demands for changes to Rule 16 [of the Federal Rules of Criminal Procedure to expand the government’s disclosure obligations. Id. 2014) (http://www. See Press Release. of the existence of all evidence or information which tends to negate the guilt of the accused or mitigate the offense charged or which would tend to reduce the punishment of the accused’). Soffer explains that “[t]he department’s newest guidance does not address materiality head-on. but in prescribing more rigorous methods for the collection. available at http://www. Notably. Nation’s Criminal Defense Bar Filed Federal Suit Today (Feb.S. but as a narrow exception to a prosecutor’s general right to withhold evidence from the defense. Greene. Professor Burke explains: “Brady’s progeny have made clear that prosecutors are not constitutionally obligated to disclose all exculpatory evidence. Deputy U. 436 (1995). Joy & Kevin C.justice. Dept. 76. 73. 68. Kyles v.nacdl.]” Id. 2011 WL 190331 *5 (2011). 79. L. Cone v. Further. to make this guidance available to the public. Peter A. at 2. 514 U. See ABA. Att’y Gen. at 470 n. 1984) (‘A prosecutor should not intentionally fail to make timely disclosure to the defense.” 514 U. 21.16 (citing Cone. 449. NACDL filed a Freedom of Information Act (FOIA) lawsuit to obtain the guidance and is currently engaged in litigation over the matter. 72. 281 (1999). the prudent prosecutor will resolve doubtful questions in favor of disclosure.S. Revisiting Prosecutorial Disclosure. 81.americanbar. Attorney’s How Courts Are Impeding Fair Disclosure In Criminal Cases . a prosecutor can constitutionally withhold all evidence.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/alpha_list_state_a dopting_model_rules. 1321. Jr. McMunigal. Id. at 1 (2009). DOJ Opposes Legislating Discovery Reform. ABA Formal Opinion 09-454 at 4. which call generally for prosecutorial disclosures of any information tending to exculpate or mitigate. the definition of ‘material’ exculpatory evidence is so restrictive that it is probably best articulated not as a duty of the prosecutor to disclose.S. one commentator wrote: “Consistent with Bagley. ABA Standing Comm. Do No Wrong: Ethics for Prosecutors and Defenders 145 (ABA 2009). except for exculpatory evidence that ‘creates a reasonable doubt that did not otherwise exist. 84 IND.” Gil Soffer. at 2 (emphasis added). Id. The text of Rule 3. Annotated Model Rules of Professional Conduct 375 (ABA 2007). on Ethics & Prof ’l Responsibility. Strickler v. Agurs. 419.”).8(d) (1984) (‘The prosecutor in a criminal case shall … make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense’). Following the release of the Ogden Memo. Memorandum from David W. at *4-5.htm.15. 263.8(d) does not contain a materiality requirement and a “review of the rule’s background and history indicates that Rule 3.S. DOJ has declined. see Ellen Yaroshefsky. The Court discussed this juxtaposition of duties in Kyles v. Under Brady’s progeny.gov/dag/discovery-guidance. and production of exculpatory and impeaching information. 75. 419. 78. but Declines to Disclose Its Own Federal Criminal Discovery Blue Book.15 (2009). Whitley. Formal Op. 09-454. In December 2012. of Justice. however. 74. 427 U. some degree of materiality. U. Id.aspx?id=31999). 2010). Bell. at 108.J.S.’” Id. The ABA opinion explains that although the “obligation may overlap with a prosecutor’s other legal obligations[.mandated by the Due Process Clause of the Fifth Amendment to the Constitution.8(d). 481. Recent Changes in DOJ Discovery Policies: The Ogden Memo. 80. at 108 (“Because we are dealing with an inevitably imprecise standard. Alafair S.S. In fact.8(d) does not implicitly include the materiality limitation recognized in the constitutional case law. see also Agurs. 70. DOJ has asserted that its policies regarding disclosure of favorable information are protected from public disclosure by attorney-client and work-product privileges. 77. every state but California has adopted ABA Model Rule 3. Id.”). 2009). Burke. The Law of Lawyering § 34-6 (3d 2001 & Supp. and because the significance of an item of evidence can seldom be predicted accurately until the entire record is complete. Prosecutorial Disclosure Obligations. 437 (1995).” Id. [DOJ’s] guidance has required. 4. 82. Hazard. See ABA Standards for Criminal Justice. 556 U.S. 556 U. 427 U.org/NewsReleases. Whitley. at the earliest feasible opportunity.S. Guidance for Prosecutors Regarding Criminal Discovery ( Jan. William Hodes.11(a) (3d ed. in Brady) requires less of the prosecution than the ABA Standards for Criminal Justice. hence. National Association of Criminal Defense Lawyers.. & W. http://www. stating: “We have never held that the Constitution demands an open file policy []. 483 (2009). ABA Model Rule of Professional Conduct 3. 2 Geoffrey C. 69. Prosecution Function and Defense Function 3-3. State Adoption of the ABA Model Rules of Professional Conduct.S. Id. 527 U. 62 HASTINGS L. review. 470 n. Ogden. at 4 n. and continues to require.]” it would be “inaccurate” to describe this rule as merely “codifying” Brady and “incorrect” to assume it requires “no more from a prosecutor than compliance” with Brady and its progeny.html [hereinafter Ogden Memo].The Department of Justice Office of Legal Education has also published a “Federal Criminal Discovery Blue Book” for use by federal prosecutors.S. and the rule in Bagley (and. or even all relevant exculpatory evidence. In her article advocating for a prophylactic rule to effectuate Brady. 59 71.J. 1336-37 (2011) (Under the U.

16 (D.” United States v. “the DOJ adheres to the materiality standard[]” and “federal prosecutors are likely to continue to adhere to the [manual] when in conflict with the ABA Criminal Justice Standards until courts decide otherwise. and appended magistrate judge’s decision. any applicable legal or evidentiary privileges. Cal. Sudikoff. As used in this report. Safavian. 850 F. Ogden Memo at Step 3. the Ogden Memo sets forth the following considerations regarding the scope and timing of disclosures: Providing broad and early discovery often promotes the truth-seeking mission of the Department and fosters a speedy resolution of many cases. including. with “[n]inety-seven percent of federal convictions and ninety-four percent of state convictions [] the result of guilty pleas. 2d 1196. Judge Friedman stated that the “only question before (and even during) trial is whether the evidence at issue may be ‘favorable to the accused’.” the criminal system “‘is for the most part a system of pleas. Osorio.htm [hereinafter USAM 9-5. 1999). . 2005). Id. A detailed description of the methodology is available at Appendix A — Methodology [hereinafter Methodology Appendix].C. United States Attorneys’ Manual 9-5. 57 (D. The Study Sample included only decisions made by federal courts. 357 F. 929 F. 2001). Mannarino. Sudikoff. in United States v. 83. (citing United States v. It also provides a margin of error in case the prosecutor’s good faith determination of the scope of appropriate discovery is in error. In the end. protecting privileged information. 92.. However. the court concluded that.The ambiguity raised by this judicial double-speak and the difficulty applying the materiality standard pre-trial inspired a number of federal courts to conclude that the Brady materiality standard is unworkable in the trial context. if so. For example. Supp.Nev. 2004)).S.’” Missouri v. because it was unable to determine whether the information the government was trying to withhold would create a reasonable probability of a different outcome at trial. available at http://www. United States v. United States v. 924- 25 (E. at 1206. 2d at 1237. it must be disclosed without regard to whether the failure to disclose it likely would affect the outcome of the upcoming trial. Manual.2d 753 (1st Cir. in United States v. the idea that pre-trial discovery requires broad disclosure of favorable information is a position taken by many. If a court discards the Brady claim on procedural grounds.S. Supp. protecting the trial from efforts at obstruction. Id. also citing United States v. 85. enhancing the likelihood of receiving reciprocal discovery by defendants.001 (updated June 2010).D. 90. 36 F. § 2254. See.C.S. a case that arose out of the Jack Abramoff scandal. NACDL Counsel for White Collar Crime Policy Tiffany M. 1198 (C. only those decisions that resolve a Brady claim on its merits were subjected to extensive analysis. Finally. e. protecting the integrity of ongoing investigations. Federal District Court Judge Paul L. Friedman characterized the materiality standard as requiring the trial court to “look at the case through the end of a telescope an appellate court would use post-trial. 2d 1196. Supp.D. but not all. 566 U.D. Supp. VERITAS Initiative Pro Bono Research Attorneys Todd Fries and Jessica Seargeant. United States v.” Id. U. 1999). Supp. 89. The phrase “Project Supervisors” refers to Ridolfi. 2d 921. 36 F.3d 132 (2d Cir. 267 F. “[the materiality] standard is only appropriate. ___. But when considering providing discovery beyond that required by the discovery obligations or providing discovery sooner than required. As discussed in the Methodology Appendix. See 28 U.” and concluded that the materiality standard is unworkable in the trial context. Acosta. United States v. and thus applicable.D. and six law student volunteers from the Santa Clara University School of Law. Supp.001]. courts.R. 1991). but not limited to: protecting victims and witnesses from harassment or intimidation. 2005). protecting national security interests. Those decisions originating in state courts generally reached the federal courts through a petition for a writ of habeas corpus. 313 F. Id. Safavian. then the decision was coded as “non-merits” and no further analysis or coding was conducted for it. not a system of trials. In addition. 12.D. 1233 (D. these decisions resolved Brady claims from cases that originated in both federal and state courts. 91. Prosecutors are encouraged to provide broad and early discovery consistent with any countervailing considerations. the court ordered the government to disclose all favorable information before trial. Coppa. protecting the privacy interests of witnesses. USAM 9-5. 1198-99 (C. Rather than wrestle further with the materiality standard. United States v. 87. Carter. Mass 1994). prosecutors should always consider any appropriate countervailing concerns in the particular case. Frye. Cal. Similarly. and Fries. Joslyn.g. Dep’t of Justice. Part A (emphasis added). 20-21. Joslyn. The Guidance Document is part of the Methodology Appendix.justice. 86. investigative agency concerns. As the Supreme Court has explained. 2d 1228.gov/usao/eousa/foia_reading_room/usam/title9/5mcrm. Wis. 233 F. This group includes VERITAS Initiative Director Kathleen “Cookie” Ridolfi. 84. supra note 83. the Sudikoff court ordered the government to disclose all favorable information before trial.001. the phrase “Research Team” refers to the group of individuals who developed and executed the study discussed in this report. in the context of appellate review.”). Further. 60 and other strategic considerations that enhance the likelihood of achieving a just result in a particular case. Sudikoff. 357 F. 88.

2004). 1376. 100. adopted by. Procedural postures in the “other” category include: an application for a stay and abeyance of habeas proceedings.3d 382. 423 F. 1378 (2012)). only one was a pro se decision. 112 involve statement or testimony information. 392 F. 101. and any other information used in this decision comparison come from Willis v. Of the 176 decisions involving multiple forms of information. In 1996.132 S. a petition for a writ of coram nobis. 2011). No. and an application for a certificate of appealability. Kott. 104. following the revelations in the Stevens case. and United States v. the identity of a particular person. Owens v. 105. or when the Research Team could make such a determination based on a reasonable reading of the facts. United States.C. the totals for the information form exceed 620 because 176 decisions involve multiple forms of information.S. 132 S. 103. 97. 454 F.”). the government’s key witness in both the Kott and Kohring prosecutions. and 50 involve information categorized as “other. 2011 WL 4504739 (E. Alaska 2010). despite the fact that pro se decisions represented 54 percent of the Study sample. L. 2011). 566 U. As detailed in the Methodology Appendix. § 2254 and set a new “standard of review” for habeas relief in prosecutions originating in state courts. Kott. Kott and Kohring appealed How Courts Are Impeding Fair Disclosure In Criminal Cases . See United States v. Information in the “other” category includes. Whereas in both Kott and Kohring. Decisions are not coded as favorable if the information does not exist.” or that it was based on an “unreasonable determination of the facts in light of the evidence presented in the State court proceeding. the quantity of decisions coded as favorable is conservative and may be understated. 483 F. these numbers do not speak to the type of representation at the time of plea or conviction. was also the government’s key witness in the prosecution of Senator Stevens discussed in the introduction of this report. 1407 (2012) (quoting Lafler v. 2011). Cooper. as determined by the Supreme Court of the United States. App’x 736 (9th Cir. in accord with the Guidance Document contained in the Methodology Appendix. Infante. quotations. Mich. 13 (2013) (“[Today] over 96% of convictions in the federal system result from pleas of guilt rather than decisions by juries. 2011). 61 96.3d 376. United States v. Dervan & Vanessa A. rather than the unfolding of a trial. District Court for the District of Columbia vacated the conviction upon the request of the government after the Brady violations came to light. Howes.S. United States. 2:02-CV- 72436. The Research Team only looked at the representation type for the specific proceeding resolved by the decision included in the Study Sample — i. For additional explanation of the difference between a decision that resolves a Brady claim on the merits and a decision that does not. and United States v. information concerning the government’s trial strategy and intended witnesses. 94. quotations. App’x 624 (9th Cir. District Court for the District of Alaska rejected the defendants’ Brady claims. (discussing the method for determining the number of decisions involving favorable information). 380 F. Kott. Although a number of decisions involved multiple Brady claims. 2010 WL 148447 (D.D. Undisclosed favorable information is not information that the government actually disclosed or disclosed in an untimely fashion. Kohring. Espaillet. 637 F. 2010). United States v.” 99. 637 F. 109. Blanco. 2007).” Id. 40 involve incentive or deal information. 386 (5th Cir. 95. AEDPA altered 28 U.. The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem. See supra Section I. 2005). 604 F. and any other information used in this decision comparison come from United States v. As a result. United States v. the negotiation of a plea bargain. for example. The facts.3d 667. & CRIMINOLOGY 1.” the court implies the information is favorable by acknowledging its exculpatory or impeaching value. In Stevens. See also Lucian E. and unspecified assertions such as “everything the prosecutor knows. 671 (1st Cir. 1399. The facts. 2010). vacated.S. See id. As discussed above.3d 895. Parsley v. 404 F.” De novo is the standard of review for habeas claims that originate in federal court. the Research Team coded a decision as one involving favorable information only when the court explicitly states that the information is “favorable.S.3d 48. 103 CRIM.D. or involved an unreasonable application of. Of the 22 Brady violation decisions identified in the Study. For the purposes of this report. 02-CV-72436. therefore. Ct.3d 713. if there is insufficient detail about the information to make such a determination. the government opposed dismissal and the U. 48 involve physical information. 106. McDuffie. Kohring. 2010 WL 148447. See supra notes 54 and 55 (providing Bagley and Kyles standards). the phrase “undisclosed favorable information” refers to information that the Research Team determined to be favorable. Bill Allen.” 98. clearly established Federal law. Edkins. 93. 107. 2010 WL 7645642 (E. No. the U. 57 (1st Cir. 108. 102. Ct. As a result. see the Methodology Appendix. the federal habeas court determines whether the state court’s finding was either “contrary to. As a result.C. 3:07-CR-056. the Court recognized that “[i]n today’s criminal justice system.e. researchers coded and analyzed only one Brady claim per decision— the claim that was the central focus of the court’s decision. 143 involve documentary information. Under AEDPA. ___. 718 (2d Cir. No. Mich. or if the claim is not relevant or is frivolous. and not disclosed to the defense. 2004). 387 (9th Cir. is almost always the critical point for a defendant.3d 895 (9th Cir.

Yaacov Trope & Nira Liberman. Dissenting in United States v. Univ. citing Kohring. S.3d at 900. in the context of appellate review. supra note 69. Kott appealed the Alaska District Court’s decision to the Ninth Circuit and. 2 REV. 175 (1998). Why Do Brady Violations Happen?: Cognitive Bias and Beyond. Decisions were not coded as favorable if the information did not exist. 637 F. Despite the identical procedural history of these two cases — a ruling for the government at the district court level and a reversal in favor of the defendant at the circuit court level — the inclusion in the Study Sample of the conflicting circuit and district court decisions. 120. this number jumps to 210 decisions and. available at http://ssrn. Maryland during a set five-year time period. and it imposes on prosecutors the burden to identify and disclose evidence pursuant to a pre-trial standard that virtually defies definition. 113. the quantity of decisions coded as favorable is conservative and may be understated. Stevens came from U. Findley. in Conviction of the Innocent: Lessons From Psychological Research (B. if there was insufficient detail about the information to make such a determination. 423 F. Sudikoff. 121. See generally Ellen Yaroshefsky. the Research Team coded a decision as involving favorable information only when the court expressly found the information to be favorable or implied the information to be favorable by acknowledging its exculpatory or impeaching value or when the Research Team could make such a determination based on a reasonable reading of the facts. 700 (1985) (Marshall. dissenting). 118. Kruglanski. Cutler. vacated their convictions.S. See United States v.D. when the Research Team includes decisions involving the late disclosure of favorable information. JOHN GRISHAM. PSYCHOL. 113. SOCIAL HYPOTHESIS- TESTING: COGNITIVE AND MOTIVATIONAL MECHANISMS. at 495. however. was not included in the study’s random sample. Nickerson. 112. 2197. or if the claim was not relevant or was frivolous. 2010). 637 F. Kott. 124.S. Confirmation Bias: A Ubiquitous Phenomenon in Many Guises. 115. see infra Section IX. supra note 58. it reversed the district court. and thus applicable. Whether disclosure would have influenced the outcome 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. “[the materiality] standard is only appropriate. 125. Cal. Tunnel Vision 6. ed. J. based on nearly identical facts. and remanded both cases for new trials. 123. Supp. Keith A.W. THE CHAMPION. Higgins & A. Ultimately. in the Study Sample. 110. of Wisconsin Legal Studies Research Paper No.S.) (1996). the Study Sample included only the decision of the Ninth Circuit in Kohring and the decision of the U. at 302. Agurs.. eds. 116. As discussed in Section VI. Bagley. 427 U. Court of Appeals for the Ninth Circuit. Human Inference: Strategies and Shortcomings of Social Judgment (1980). May 2013 at 12. The Ninth Circuit decision in Kott. See supra note 113 (explaining how the decisions from these two different courts. As a result.S. 97.” 473 U. THE INNOCENT MAN: MURDER AND INJUSTICE IN A SMALL TOWN 288 (2006). App’x 736.T. 2d 1196. 1116. “the Court permits prosecutors to withhold with impunity large amounts of undeniably favorable evidence. 2197 and other reforms. District Court Judge Harry Pregerson explained. As detailed in the Guidance Document contained in the Methodology Appendix. See also discussion supra note 86. U. Rejecting the use of Brady’s materiality standard for determining the government’s pre-trial disclosure obligations.The Stevens indictment was dismissed in April 2009 and the Ninth Circuit vacated Kott’s conviction in January 2010 and Kohring’s 62 conviction in March 2011. 122.. 112th Cong. 36 F. which reversed the district court. selected at random. Id. Ultimately the decision to dismiss the indictment against Sen. 2010 WL 148447. For additional discussion of S..com/abstract=1604658. but only included a portion of those decisions. Kott. . were included in the Study Sample). Sundby.S. 1198-99 (C. the district court’s decisions to the U. 117. 104. at *2. This study identified all federal court decisions citing Brady v. Kohring. OF GEN. Richard Nisbett & Lee Ross. 1999). Burke.S.3d at 900. See supra notes 44. 90 percent of these decisions. 667. Kohring.” United States v. As a result.e. 2011). 114. in cases that followed identical procedural paths. See The Fairness in Disclosure of Evidence Act of 2012. (2012) (proposed legislation effectively prohibiting the government from using the Brady materiality requirement to narrow its disclosure obligation by requiring prosecutors to disclose all information “that may reasonably appear favorable to the defendant” and appellate courts to employ a “harmless [] beyond a reasonable doubt” standard of review for disclosure violation claims). 126. IN SOCIAL PSYCHOLOGY: HANDBOOK OF BASIC PRINCIPLES (E. Attorney General Eric Holder following a review of the case by a new team of Department of Justice lawyers. United States v. Raymond S. 737 (9th Cir. serves to demonstrate the unpredictability of the materiality standard. 108 (1976). 111. Justices Marshall and Brennan explained. 119. See supra note 44. the court found the information not material in 188 — i. of those 210 decisions. This analysis obviously cannot be applied by a trial court facing a pretrial discovery request. District Court for the District of Alaska in Kott. at 656.

Jennifer E. For offices with an open file policy. then the decision is not included in the late disclosure decision total. the prosecutor must obtain “all information about the case from police and all agencies involved” and disclose “all case-related information to the defense [with narrow exceptions]. Some may have little in the file thus the term ‘open file’ does not provide meaningful access to information. Democracy and Criminal 63 Discovery Reform After Connick and Garcetti.” which have been interpreted to mean “within a sufficient time for its effective use” by the defendant. places it in a file. A View From Inside the Ropes: A Prosecutor’s Viewpoint on Disclosing Exculpatory Evidence. Thompson. the statute specifically requires disclosure of “the complete files of all law enforcement agencies. 136. RES. See Bennett L. prosecutors typically make a distinction between what is required under discovery rules. 25 GEO. 470 n. See id.” Bennett L. L. investigatory agencies. and Policies: Report to the Advisory Committee on Criminal Rules of the Judicial Conference of the United States (2004). Gershman.S.” and. see Yaroshefsky at n. How Courts Are Impeding Fair Disclosure In Criminal Cases . in a “full open file discovery” system. access to its files. 543 n. BULL. there is a wider disparity among states than there is among federal districts. 1561-63 (discussing various ways prosecutors and law enforcement can evade fair disclosure in an open file system). 133.” Ellen Yaroshefsky. Id.e. Treatment of Brady v.” For districts without specified time requirements. like that adopted by North Carolina.” These rules apply to all information favorable to the defendant with the exception of witness statements governed by the Jencks Act. Maryland.” Id. See Laurel L. JCAC found that the federal districts varied significantly but all required disclosure before trial.” Id. 1372. Marsh & Brian Yeh. 132. L.” “before the trial.” or “after defense counsel has entered an appearance. but “even under the most expansive open file policy.67-70 (2007). REV. United States v. Maryland Material in United States District and State Courts’ Rules.e. The phrase “late disclosure” covers a wide range of time. One office “might invite defense counsel to view all information gathered in a case..” Id. STAT. New Orleans Prosecutorial Disclosure in Practice After Connick v. The most common time frame permitted disclosure “within 14 days of arraignment” followed by “within five days of arraignment. J. Late disclosure decisions are only those decisions involving the late disclosure of favorable information — i. 1329. 130. The JCAC was able to obtain rules and procedures for 30 of the 94 United States federal districts and quantified what it found. LEGAL ETHICS 913.C. 25 GEO. 77 BROOK. but not total. On the other hand. REV. (internal citation omitted). 134. Bagley. with some exceptions.15 (2009). and what is required under Brady. 131 (1986). New Orleans Prosecutorial Disclosure in Practice After Connick v.The breakdown of the time of late disclosure adds up to more than 65 because a number of these decisions included late disclosure of multiple pieces of information at different times during the proceeding. at 23-26.” N. GEN. “the definitions vary considerably. See also Brady’s Bunch of Flaws. the Judicial Conference Advisory Committee on Rules of Criminal Procedure ( JCAC) published a comprehensive study of federal and state court rules that addressed the disclosure obligations set out in Brady v. from shortly before trial and during trial. L. 137. favorable information decisions involving a late disclosure. Orders. If the decision involves the late disclosure of information that is not favorable. 129. 939 n. LEGAL ETHICS at 939. however. Fred Klein. REV. 57 CASE W.167 (2012). Implicit in any open file system. Times range from “[w]ithin 10 calendar days after arraignment” to “[n]ot later than 7 days prior to trial. Bell. Regarding timetables for disclosure of Brady material. REV. According to the JCAC study. requires all oral statements to be in “written or recorded form. to long after conviction. 473 U. 128. 131. State courts have emphasized that disclosure must not constitute “unfair surprise.” Janet Moore. See id. timing was characterized as “as soon as reasonably possible. The phrase “open file discovery” refers to a system in which the prosecution gathers all the information in the case. 1533. is an obligation to ensure that the file is complete — i.]” provides an extensive definition of the term “file. § 15A-903(a)(1). & LEE L.”). Why Prosecutors Misbehave. Open file discovery should eliminate or at least minimize gamesmanship. statutory mandates provide clear guidance and are “short and simple. 667. and thus the precise contours of case file content and defense access can differ substantially. See supra note 116 (defining “favorable information decision” and explaining the methodology used to evaluate favorability). In addition. J.169 (“The combination of provisions in the North Carolina statutes qualify North Carolina’s reform as ‘full’ open file discovery. This group does not include any decision involving information that is not favorable. Some states rely on undefined terms such as “timely disclosure” or “as soon as practicable. Prosecutorial Ethics and the Right to a Fair Trial: The Role of the Brady Rule in the Modern Criminal Justice System.. In 2004. The system may be a statutory mandate or merely an office policy. For example. 869 (2010). Thompson. 702 (1985). Judicial Ctr. 135. and then makes the file available to the defense prior to trial. Fed. 449. (internal quotation marks omitted). 67 WASH. disclosing the former but not the latter.. 867. Gershman. 127. 531. Cone v.S. while another office may simply give the defense substantial.” Ellen Yaroshefsky. 38 HOFSTRA L. the prosecutor has an affirmative duty to seek out all relevant information from all those involved in the investigation and prosecution and place it in the file. when assessing the timing of Brady material disclosures. Hooper. 22 CRIM. 556 U. and prosecutors’ offices involved in the investigation [or prosecution.

. 138. LEGAL ETHICS 997. as well as any matters which are within a valid exclusionary rule. Warden of Mansfield Corr. 07-3515-cr. of the 65 late disclosure decisions identified within the Study Sample.” Powell v. 153. 85-981 at 1862 (1957). Ohio Oct. “The Supreme Court has never expressly held that evidence that is turned over to the defense during trial has been ‘suppressed’ within the meaning of Brady. 14. when a prosecutor without fault is unable to provide more timely disclosure. 2011). of government witnesses touching the subject matter of their testimony at trial. Rep.. tolerance is understandable. ABA Standards for Criminal Justice. a federal rule allowing federal prosecutors to disclose witness statements after they testify. 264 A. United States. District Court Judges at 174-75 (6th ed.]” Congress drafted the Jencks 64 Act with the intent to “protect[] the files of the FBI and of the government from danger of the disclosure of irrelevant and incompetent matter. REV. Absent intentional avoidance of knowledge or possession of the information. 1984). Chinn v. Although the Court did not state when the prosecution must disclose the statements. 2011 WL 5338973 (S. 2009) (late disclosure of electronic database diminishes the value of the information to the detriment of the defense).S. Id. available at http://news. but there is no consensus on whether Brady supersedes Jencks’ timing provisions. “[C]ircuits are split about which law trumps when they conflict” and the “split comes down to a disagreement about how much time the defense needs to use exculpatory evidence effectively. See Federal Judicial Center. much of which resulting “from court decisions that read Jencks liberally. For example. § 3500(a). 18 U. only one resulted in a Brady violation finding. 1984). 729 F.8(d) as a tool for expanding discovery rights). 03 Civ. Despite the harm late disclosure causes for the defense. at 1000. Id. 2012) (“Brady generally does not apply to delayed disclosure of exculpatory information.N. Jackson v. at 336 (“We have held that a defendant is not prejudiced if the evidence is received in time for its effective use at trial. at *6. judicial tolerance is justified in some limited circumstances. Rep. Podgor. Jackson. the Jencks Act further insulates the exercise of that discretion “because it explicitly forbids courts from ordering disclosure of witness statements until relatively late in the trial. Id.3d 885. at *6-7 (citing People v.A. United States v. or even inspection of.” Jencks v. See also United States v. 145. All courts agree that Brady material contained within Jencks material must be disclosed. 2012 WL 3079192 (S. See Schwartz. See United States v.D. Qunbar.2d 256. 128 F.Y.”) (citations omitted).” S. circuit courts tend to excuse late disclosure so long as the defendant was able to use the evidence or information effectively at trial. For example. 353 U. this further diminishes access and impairs the ability to prepare an effective defense strategy. at 34 (discussion of using Model Rule 3.” Id. Benchbook for U. Taking the position “that misapplication of the Jencks doctrine can mean an irretrievable loss to the government’s case[.3d 856. but only to complete failure to disclose. 683-84 (N. 657. Starusko. No. For the defendant. App. at *7. a statement made by a witness “until said witness has testified on direct examination in the trial of the case. the decision was met with significant criticism. 148. 672 (1957). L. 653 (1999) (citing S.uscourts.Y. at *71. Whereas prosecutors already exercise broad discretion over what to disclose. 146.C. 139. 651.. 760 F. 1999) (citing People v. Smith Grading & Paving. Prosecution Function and Defense Function 3-3. O’Keefe. 15 GA. No.S.D. No. 998. supra note 51. 2009 WL 1874339 (2d Cir.S. 703 F. Quarterman. See supra Section II. . at *70. that courts cannot afford the defense access to. at *71. 637 N. the rigid dictate of the Jencks Act can conflict with Brady’s requirement that information be disclosed in time for the defense to use it effectively. ST.2d 683.2d 527.3d 325. 140. late disclosure may be justified when a prosecutor does not gain possession of information until late into the investigatory process or during the trial itself. 147.2d 1995) (setting forth the facts underlying Jackson’s Brady claim in detail))). In addition. Inst. 262 (3d Cir. Criminal Discovery of Jencks Witness Statements: Timing Makes a Difference.” 18 U. See also United States v.Y. 335 (5th Cir. Div. See id. 2737. 3:02-cv-512.D. 150. The result is a statement. 85-981 (1957)).Y. 536 F. Senkowski.gov/updated-edition-benchbook-now-available. 141. Id.11(a) (3d ed. Id. and others finding that Brady sometimes or even generally requires earlier disclosure than the Jencks Act permits. No. U. When statements contain favorable information. Inc. 1985). § 3500 (1994) (prohibiting federal courts from ordering disclosure of witness statements until after the witness has testified). Ross.”). see Ellen S. Prosecutorial Disclosure Timing: Does Brady Trump the Jencks Act?. 1004 (2013) (“some courts find[] that the later disclosure on the Jencks Act’s terms always conforms to Brady. 2008).2d 158 (N. March 2013). 154. July 30. 149. 26 GEO.” Id.S. J. See infra note 154 (discussing the judicial standard for excusable late disclosure). United States v. 2012). 144.D. at 8-9. 151. Id.” Cara Spencer. Id. 143. judicial tolerance is mandated when the delay is based on the Jencks Act. 152. 532 (4th Cir. Congress enacted the Jencks Act in response to a 1957 Supreme Court decision holding that the defendant is entitled to production of “relevant statements or reports .C. As a result. Jackson. 142.S.. 881 (6th Cir. 898 (5th Cir. 1997). in no uncertain terms.

United States ex rel. United States v. 2009 WL 899428.com/judge-h-lee-sarokin/innocent-people-guilty-pleas_b_1553239. 2008 WL 2568385 (W. 397 F.Y. United States v. Oct. 309 F. 2008) (exculpatory statements by victim and witness disclosed during trial). HUFFINGTON POST (May 29. Cephas. 536 U. 506 (2d Cir. 4023(PKC). Minn. Okla. 2007 WL 4224214 at *3 (D. United States v.3d 221. Garrett. Perez-Ruiz. See also Brandon L. however. 441 F. or some other limiting order from the judge. Why Do Innocent People Plead Guilty?.”). (Chi Square statistic . 164. No. Cir. 664 (8th Cir. 200-03 (2011) (defendants in 29 of the first 250 DNA exoneration cases raised Brady claims). Prof.”) (internal quotation marks and citations omitted). Brandon L.N. 162. Houston. Parson v. 622. on a case-by-case basis through judicial in camera review of the statement and a remedy tailored to the particular facts. 2d 183. Of those decisions. App’x 428.. Caine.3d 653. CIV-07-994-M.”) (citing United States v. e. 161. Quinones v. 2012). a redacted disclosure.”) (citations omitted). 937 F. 353 F. 1:09CV2427. McCann. 2007) (“the Government must make disclosures in sufficient time that the defendant will have a reasonable opportunity to act upon the information efficaciously. The discovery rules in the majority of these 23 state-originated decisions do not follow the Jencks Act and require disclosure of witness statements pre-trial. 188 (E. at *6-*7 (N. [E]ven tardy disclosures of Brady material do not violate the defendant’s constitutional rights unless he can demonstrate the delay denied him a constitutionally fair trial. Ill.3d 806. No. Almendares. he could have sought time to prepare his cross-examination and/or answering case.D. Kirkpatrick. Statements are overrepresented in late disclosure decisions. 823 (2d Cir. 2011) (“there is no Brady violation so long as the exculpatory or impeaching evidence is disclosed at a time when it still has value) (citations omitted). United States v. 157. 2010) How Courts Are Impeding Fair Disclosure In Criminal Cases . 633 (2002). Within the Study Sample. United States v. 631. 2003) (“When Brady or Giglio material surfaces belatedly.html. 28. 2011) (witness statement exculpating defendant turned over during trial). 10 Civ. ‘the critical inquiry is not why disclosure was delayed but whether the tardiness prevented defense counsel from employing the material to good effect. cert. June 24.3d 1. http://www.” that is. 2008) (“Cuevas was granted a continuance during trial to determine whether [the witness] had been convicted of murder in Mexico. Judging Innocence. 5. 1971) (“[T]he absence of surprise is highlighted by appellants’ failure to request a continuance when the court ruled the evidence admissible. Late disclosure may be justified when providing the witness statement could put the witness in danger. Supp. See United States v. at *30 (S.” United States v. 2008) (“Although Mordi complains mightily about material disclosed shortly before the original trial date.N. No. Collins v. the “Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant. Mordi.”) (citations omitted). nine originated in federal court and 23 originated in state court. 277 F. 158. No. App’x 613.Y. Nov. 496 F. Any risk of danger can be averted. 2009) (57-page witness statement turned over on first day of trial). Brandon Garrett identified nine cases in which the defendant pled guilty and was later exonerated. 74 (2008).D. denied. at least strong proof that the party was not in fact surprised by the ‘new’ evidence. 2005) (“Under the rule in our circuit Brady does not require pretrial disclosure. App’x 271 (10th Cir. 2010) (“the critical point is that disclosure must occur in sufficient time for defense counsel to be able to make effective use of the disclosed evidence”) (citations omitted). Civ. 456 (2d Cir. App’x 504. 108 COLUM... Navarro. June 27. 2007) (expert witness statement that coat on videotape did not match defendant’s coat turned over after expert testified).”). W. REV.D. 155.2d 454.”)). and due process is satisfied if the information is furnished before it is too late for the defendant to use it at trial. Rodriguez. March 26. A total of 32 late disclosure decisions involved statements. Celis.D. No. 5:06-cv-00072. 2007 WL 2915634 (N. Ennis v. 2008) (police report of interview with witness disclosed during trial). 06-4407. Keith.D. Gardner v. and there is no Brady violation. he was not prejudiced by the late disclosure of [the witness’s] criminal history.huffingtonpost. 226 (2d Cir. Shewalter. While a prosecutor must disclose information that would establish that a defendant was innocent prior to acceptance of a guilty plea. 2011 WL 2555994.Va. 2009) (“We have previously stated that the failure to ask for a continuance when allegedly new evidence is introduced at trial is. Ruiz. 813 (9th Cir. Judge Lee Sarokin. See supra note 141. there is a correlation between late disclosure decisions and statements. 160. 608 F. 310 F. The Jencks Act is a federal statute that allows disclosure of witness statements only after the witness testifies. L. … Because Cuevas had time to investigate and put the information to effective use at trial. Colbert v. 1991) (“If [the defendant was] truly surprised by the testimony. he cannot plausibly argue that those disclosures hindered his trial preparation because the district court gave him a one-month continuance.S. United States v. Rittweger. 836 (D. if not a waiver of any later unfair surprise claim. 556 F. in order to ensure that those factually innocent of crimes do not nonetheless plead guilty.C. Minnesota. 07 C 1100. United States v. United States v. Ohio July 7. Garrett. 263 F.D. 55. 648 F.070). See. at *1 (S. 163.2d 816. In a study of the first 200 DNA exoneration cases. such as “attorney’s eyes only” disclosure. Rubenstein. 159. 2007) (witness recantation disclosed during trial).”) (internal citations omitted). Young v.3d 818. 65 156. 8 (1st Cir. 2010 WL 3603147. No. Fisher. 617 (7th Cir. Convicting the Innocence: Where Criminal Prosecutions Go Wrong 169.g. 2009). “in a manner that gives the defendant a reasonable opportunity either to use the evidence in the trial or to use the information to obtain evidence for use in the trial”). 429 (5th Cir.

App’x 133. 696 (2004) (“A rule [] declaring ‘prosecutor may hide. 486 F. the Supreme Court articulated a variation of the Brady test that described information that was withheld as “unknown to the defense. 738 (6th Cir. 174.The due diligence rule emerged from an out-of-context phrase taken from Kyles v.3d 883. No. at 476.D.3d 885. Litigating Brady v.C. 2009 WL 1220493. 181. See United States v. See also supra note 154 (discussing the judicial standard for what constitutes an excusable late disclosure). 696 (W.2d 733.”). Abdur’Rahman v. Qunbar. 344 (6th Cir. La. Id.1997).D.” The prosecution therefore cannot be held accountable for not disclosing the information. 427 U. this phrase has evolved into a rule being followed in every federal court of appeal with the exception of the Tenth and D. Although the phrase “unknown to the defense” is not part of the Brady definition. Agurs. 898 (5th Cir. 891 (6th Cir. 655 F. In addition. This reference in Kyles is the only time the Supreme Court mentions that the information must be unknown to the defense. 180. 2011). at 475-76. 178. 1984). Feb. Bell v. Id. at *11-*12 (W. 1991) (per curiam) (internal citations and quotation marks omitted).”) (internal citation omitted)). should have. . United States v. Maryland: Games Prosecutors Play.. 262 (3d Cir. United States v. 380-1 (5th Cir. 05-cv-2187. 165. Colson. and United States v. Weisburg.S. 928 F. 168. Id.” This simple phrase has since been interpreted so as to impose a burden that if the defendant could have. Id.2d 256. 514 U.S. the prosecutor denied having information that was in her possession. Clark. But the prosecution. at 479 (Cole. supra note 66.S. 335 F. 532 (4th Cir. 52 F. 531 (2007). without more. Barraza. 419 (1995). 2011 WL 533584.3d 223. See supra note 167 (discussing the origin of the due diligence rule). J. or actually did know about the undisclosed information. O’Keefe. Yates. 170.1985). 649 F. United States v. at 141. There are two generally accepted case precedents for the Brady defendant due diligence rule. 2009) (police officer’s prior false arrest affidavit disclosed after officer testified). 2007) (“Where. supra note 127. Whitley and United States v. Banks v. 1:10-CV-01270. 514 U. the government is under no duty to supply that information to the defense. defendant must seek. the Supreme Court said. 235 (6th Cir. 2009) (income and expense database in tax fraud case disclosed four days into trial). Id. like here. supra note 66. which alone can know what is undisclosed. Gershman. Bell. Smith Grading & Paving. Id. 161 F. ‘the factual basis’ for a claim is ‘reasonably available to’ the petitioner or his counsel from another source. 176. See also Weisburd. See Tice v. despite a specific discovery request by the defense. 668. Coe v. United States v. two Supreme Court decisions. United States v. 175. 11. RES. Stitt v. lower courts sometimes cite other criminal procedural due diligence requirements to justify a defendant due diligence requirement for an alleged Brady violation. 760 F. There is no mention of imposing a burden on the defendant to prove there was no other way he could have obtained the information.” Id.D. Cal. March 12. 2011) (photographic lineup disclosed during trial). 135-36 (2d Cir.2d 527. at 142-143. 179. 2d 676. 2008) (holding no violation of Brady where the sentencing records of a prosecution witness were publicly available and the witness “mentioned a pending charge as a reason for his incarceration” to the defendant while in jail together) (citing Matthews v. 173. In concluding that the prosecutor did not withhold the information. See Bennett L. 57 CASE W. Pa. Weisburd. 128 F. supra note 66. Circuits. REV. 66 In Kyles. 1998) (There is no Brady violation where information is available to the defense “because in such cases there is really nothing for the government to disclose. 172. 729 F. Agurs. 166. 169. Whitley. Dretke. at 437. Black v. 167. Warden. 2011) (witness inconsistent statement disclosed during trial).3d 375. (police report containing witness statement provided after she testified). at *6 (E. Bell. showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation.’ is not tenable in a system constitutionally bound to accord defendant due process. at 476. 540 U.S. Ishee. Starusko. 177. 2006). at 143. dissenting). In Kyles v.3d 320. No. then the information could not have been “unknown to the defense. Courts have taken this phrase to mean that “there is no Brady violation if the defendant knew or should have known about the evidence at the time of trial.3d 468 (6th Cir. see also Gershman.. Id. 425 F. Inc. L. 97 (1976). Id. Wilson. Supp.”). must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of “reasonable probability” is reached. 171.

g. CIV S-03-1723. 662 F. 07-11389.D.S.northwestern. Bradshaw. e. Id. No. 196. Abdur’Rahman v. 2009 WL 388284 (E.. Feb. 2012) (statements by multiples witnesses that the defendant was not present at the motel the evening of the crime and a statement by one of the victims that he may have broken one of the assailant’s fingers). Rob Warden. 3:04-cv-187. 18 (1999).g. 6 ( Jan. 2012 WL 2126551 (D. Nov. 2012). the conviction is allowed to stand.3d 1027. 10-70004. Chenault. whose interest . No. Ohio March 9.. 895 (9th Cir. 1. 2011 WL 4544021 (N. 2010) (government omitted from debriefing reports exculpatory statements of two witness. In a new statement dated July 13. 658 F. United States v. 649 F. June 11. Colson. 419. Mich. June 8. 78. 473 U. 188. 2012 WL 2979035 (W. Blalock v. Elso. Rhoades v. 2009). No. 08 Civ. 192. Thaler. 201.D. Civ. 2007) (Of the 117 death penalty appeals pending in the California State Public Defender’s Office. 2009 WL 649581 (S. of the sovereignty . See. Agurs. 439 (1995) (ellipses in original) (quoting Berger v. No. 2d 835 (E. Beyond Unreliable: How Snitches Contribute to Wrongful Convictions. 2009). Morgan.edu/wrongfulconvictions. Washington v. dissenting).3d 468 (6th Cir. 199. Roberson v. e. 2012) (statements from a witness interview concerning the events involving the decedent prior to her death). 11-1086. 2009 WL 3806224 (E. Trevino v. Colson. Tex. 295 U. 184. 107 (2006). 189.” The Innocence Project.2d 731 (Mich. Cal. If the answer is yes.S.. People v. in a criminal prosecution is that it shall win a case. 187. 2011). 845 N. Id. Id. No. 2011) (internal quotation marks omitted).17 involved testimony by in- custody informants and six by informants in constructive custody. 1040 (9th Cir. Bethany v. 2009) (existence and contents of interview with another individual observed in the vicinity around the time of the crime). http://www. 2010 WL 770223 (N. Gershman.g. 649 F. Northwestern University School of Law. 97. 2009 WL 1605553 (E..W. supra note 166. United States.D. Ky. 2011) (fact that defendant invoked his right to silence en route to the police station). Weisburd. Id. Brown. 13. 195. Cullen. 2011) (statements made by co-defendant who ultimately testified for the government). Quarterman. 2009). 638 F. 2006. 2009) (information that the police coerced two witnesses into making police statements about the events leading up to the assault).D. Id. 638 F. California May Crack Down on the Use of Jailhouse Informants: Commission Advises Law Requiring Corroboration. App’x 595 (11th Cir.. See. Understand the Causes: Informants. United States v. 2011). Center on Wrongful Convictions. Payton v. Bozsik v. United States. Ohio June 4. 2011 WL 5554816 (5th Cir. See. Tex.J. United States v.D. 116 (1976) (Marshall. Alexandra Natapoff. How Courts Are Impeding Fair Disclosure In Criminal Cases . Thaler. 3:09-CV-288-N.D. Jeffries v. No. at 895-96. See. Cal v. Post-conviction analysis of DNA exoneration cases reveals that “[i]n more than 15 percent of wrongful conviction cases overturned through DNA testing. Ford v. 2014). See also Vesna Jaksic. at 142. “[S]uch disclosure will serve to justify trust in the prosecutor as the representative . 2007 WL 4373267 (N. at *17. No. Abdur’Rahman v. 590 F. Harmless error analysis refers to a doctrine of appellate review that analyzes whether evidence of guilt is so strong that error would not have made a difference in the outcome of the case. 1. 190.. 2009 WL 5183835 (E. Mich.D. available at http://www. 2011) (information on defendant’s self-destructive behavior while in police custody). 1:03CV1625. No. but that justice shall be done.innocenceproject. 2009).3d 890. despite the error. e. 88 (1935). 2009). 2009) (contents of notes produced by the defendant and the defendant’s family history).. 2011) (police reports documenting that a witness confessed to the crime multiple times). Are.org/understand/Snitches-Informants.. an informant testified against the defendant at the original trial.3d 468 (6th Cir.3d 1027. No. the witness described the full extent of his relationship with and work for law enforcement when he testified at Payton’s trial in 1981. 3-07-CV-0339-B. Henry. 200. at 178. 191. which is deemed harmless. Bagley. L. CIV S-05-0944. 12. Thaler. both of whom refused the defendant’s pre-trial requests for interviews and invoked their Fifth Amendment privilege against self-incrimination at trial). United States v. Hunt v.D. 186. No. 31. No. supra note 66.g.. Whitley. 2007) (statements by multiple witnesses that the defendant did not assault his daughter). 05-CV-66. 29 NAT ’L L. No.N. 37 GOLDEN GATE U. Id. Warren. Aug.N. J. Aug. Bradshaw. 514 U. 2010).S.Y. Supp.D. 182. 09-CV- 544. Smith. REV. 1037 (9th Cir. 183. 198. Rhoades v. Henry. 2009 WL 4891836 (E. The Snitch System: How Snitch Testimony Sent Randy Steidl and Other Innocent Americans to Death Row (2004). Md.D. Dec. Civ. Bell v. Weisburd. Carey. 21.php. No.D.).D.S. 193. 7528. SA-09-CA-930-XR.. 2012 WL 3283439 at *9 (S. Warren. Franklin v. 197. 194.” Kyles v. Cal.3d 499 (7th Cir. 364 Fed. 202. Simpson v. e. supra note 66. 427 U.Y. Galaza..law. 185. Tex. 203. Vasquez 67 v. 13.

S. Young v. 26. Oct. Cal. 2009 WL 3806224 (E. 183. For additional examples of decisions in which there is other information suggesting a motive to testify.D. Berbary. 2008). Giglio v. No. 2013) (on file with recipient). Nov. 31. Ford v.. United States v. 22. Armendariz v. No. Santa Clara University School of Law (Oct.D. 1095-96 (9th Cir. 207. Ill. Id. Breedlove v. L. 1. and court found no information that a deal had been made. No. Cassidy. 07-10143. Bowie. C99-0289L. 212. No. California State Public Defender. 2007 WL 2852443 (E. March 8. Kan. Cain. Fla. 05CV1485. For more examples of decisions in which witnesses admitted self-interested motives to testify. Id. false friends. at *7.D. 2008 WL 4162998 (W. 19. 236 F. Id. Nov. Id. 12. 2010 WL 890998 at *4 (E. Accomplice Witnesses and the Problem of Implied Inducements. 8:04-CV-1447-T-27MSS. 2011 WL 3439261 at *3-*4 (W. Graham. 2007 WL 2915634 (N. Wash. see Mannino v. Fla. 2011 WL 7020919 (W. Commw. July 15. but following his testimony against petitioner the court sentencing the witness struck one charge and reduced the sentence for another). Pa. 17. 2011) (witness admitted he hoped for state favor in exchange for cooperation and that the state had helped in the past). 217. 2008 WL 5252267 (M.N. 28 PEPP. to Kathleen “Cookie” Ridolfi. 2010) (defense witness had previously been an FBI informant). United States. accomplices.S. of Corrs. 204 (1909). 2009 WL 1953133 (S. at *8. (internal quotation marks omitted). 07 C 1100. Brooks v.. at 896. No. No. Higgins v. Secretary Dept. 747.Y. No. 07-1302. CV 05-7599. 222. 2009). Light-Roth v.3d 878 (6th Cir. 219. see also On Lee v. Knowles.D. REV. Crawford v. Harris.”).3d 1083. 68 Cal. 211.S. CIV S-05-0944.D. 224. Id. at 1144-47. 227. Carey. of N. No. see Green v. leniency in exchange for his testimony). Oct. ex rel. U. 206. No. Professor of Law. 12. at *8. 209. Sept. No. 53-55 (2000). La.D. but just before sentencing the prosecutor disclosed fact that witness did act as a police informant). No. 213. Galaza. Id. Oct. 215. 20. 216. 2009 WL 4059388 (D. Aug. 226. 10- 11562. 1166 (2004). 208. No.3d 573 (6th Cir. 2009) (witness testified that no promises had been made but that she hoped for leniency in her upcoming sentencing). Id. 06 CV 6371. 626 F. 4. 2009 WL 2058791 (E. 5. 2010) (status of witness as a recurrent snitch and the perks of snitching). No. 205. Tennessee. 221. Williams v.D. United States v.D.’”).S. Secretary Dept. 2011) (witness had two drug cases nol prossed before testifying). Id.D. Nov. Id.N. 2011 WL 3862082 (N.D. see Morgan v. 5. Cal. Sinclair. 218. Id. 2011) (prosecutor argued in closing that “his office turned down a plea deal with” the witness. Morgan. Sept. 2011 WL 3420610 at *19 (C. Hardy. 4. Higgins v. 2009) (witness testified that he hoped for. United States. United States. See George C. Aug. 8:06-cv-1330-T-17MAP. 2. 2009) (witness had felony charges dropped while awaiting defendant’s trial). 2011) (witnesses were given consideration at sentencing on open cases based on their cooperation as government witnesses). Dec. 2009) (at sentencing on an open case. 212 U. Id. or any of the other betrayals which are ‘dirty business’ may raise serious questions of credibility. Harrison.D. Nish. Mariana Islands v. For other examples of unexplained benefits given to government witnesses. . supra note 221 at 1131. 09-CV-6297. Id. 662 F. No. 220. see Gentry v. 223. witness first asserted he was offered a promise for leniency in exchange for his testimony then recanted that statement). 343 U. accessories. 2010) (eyewitness Brown was arrested for battery on a police officer but never charged). vacated and remanded by Smith v. Civ. 98 NWULR 1129.D. Id. of Corrs. 09-2632. 800-01 (7th Cir. 2009 WL 3416775 (M. R. 2007).Y. 2011) (witness admitted he was motivated to cooperate by fear of returning to prison). McNeil. 204. 2001). 225. 405 U. ‘Soft Words of Hope:’ Giglio. Aug. 2007) (witness testified that he had no special relationship as an informant. Cal. 614 F. and ultimately received. at *58. No. Michael Cassidy.D. Smith v. Faulkenberry. at 1132. July 6. 210. 2011) (affirming the state court’s conclusion that the petitioner’s unsupported allegations of favor are “‘based upon nothing more than the release of the prosecution’s witnesses from jail following [petitioner’s] trial. 757 (1952) (“The use of informers. McCann. Harris. Wash. Id. 214. C 07-00264. C11-0313-JCC. 150 (1972). Cooper v. Email from Michael Hersek. Testimony for Sale: The Law and Ethics of Snitches and Experts. For other decision examples of unexplained benefits given to government witnesses. 2008) (status of witness as a paid informant who had an ongoing relationship with the detectives and prosecutors involved in the case). 2011 WL 4810173 (11th Cir. at *2.3d 790. Civ.

No. McNeil. 17. Fla. given reduced sentence for three grand theft charges and allowed to leave the prison to go out to dinner with family). No. 676 (1985) (explaining that impeachment evidence is evidence “the defense might have used to impeach the Government’s witnesses by showing bias or interest. United States. see also Holmes v. No. Strickler v. 238. Id. Punishment. 527 U. 10-213. but if you really come through at trial I will recommend in my substantial assistance motion that the judge give you the street. 2010 WL 5375951 (E.”). and the Department of Justice maintains. (citing The Innocence Project at Cardozo Sch. Nov.D. CV 05-7599. 09-CV-6297.g. 1999)). 10. at 1145. 2009 WL 4059388 (D. 2009 WL 3004008 (E. United States v. See. It is impossible to say with certainty which decisions fall under Model One and Model Three because the appellate record does not reflect negotiations between the government and the government’s witnesses. Causes and Remedies of Wrongful Convictions. ABA Model Rule of Professional Conduct 3. that any deal actually existed at the time of the witnesses testimony. See Peter Westen. Eight percent of all incentive/deal decisions were Brady violations. 229.2d 1261. 2010) (government witness offered favorable treatment for his testimony). Oct. April 27. at 1148. Cassidy. Failure to disclose this information may foreclose access to the admissible information necessary to proving that an accused is innocent.D. or give context to the open-ended terms used in the written instrument (e. Ramirez. 281 (1999). 2009) (“the government is free to reward witnesses for their cooperation with favorable treatment in pending criminal cases without disclosing to the defendant its intention to do so. REV. 667. Bell. Bagley.”). No. Dec. 260 (2005). 241. 2008) (witness was allowed conjugal visits. L. there are instances in which inadmissible information is nevertheless required to be admitted under the compulsory process clause of the Sixth Amendment. Id. No. 192 F.S.D. Flores v. Sept. of Law. No. Some courts hold. Greene. 230. Retribution for Rats: Cooperation. 228.g.N. Should Prosecutors Be Required to Record Their Pretrial Interviews with Accomplices and Snitches? 74 FORDHAM L. 17.org/understand/factors_74_chart. Cal.” (9th ed. 2009) (“The mere fact that this witness’s hopes later came true does not establish. Morgano v. 235. at 1166.S. of Corrections. Cain.There was a strong statistical correlation between Brady violations and incentive/deal information. Alegria. See supra note 3 (Brady requires disclosure of impeachment information as well as exculpatory information). 2d 472 (E. Berbary. Harris. 257. Kan. 2008) (government witness expected some benefit in return for his testimony). ‘We’ll just have to see how it goes. Bouchard. for example. 2011 WL 3439261 (W. Bell v. No. La. 243. Dec. REV. 17-19 (2003). Sinclair.9 (9th Cir. No. 2011) (government 69 witness’s sentence reduced based on cooperation in petitioner’s case). 2011) (government witness’s cooperation in petitioner’s case was presented to judge at witness’s sentencing hearing). Galaza. Such reasoning fails to appreciate the critical role inadmissible information can often play in leading to admissible information. 15. 603 F. Id. 73 MICH. However. 18. 233. 236.D. 231. “Even when an agreement under Model Three is formalized in writing. United States v. 239.8(d) (1984). Id. 245. Wash. 2008 WL 2977350 (M. Cassidy.N. James v. there are a substantial number of decisions in the sample in which government witnesses received benefits after testifying for the prosecution. Compulsory Process. at 1146. 232. 263. Id. Aug. 237. 234. No. United States v. Simons. 547 How Courts Are Impeding Fair Disclosure In Criminal Cases . supra note 221. Supp. 2008 WL 5252267 (M. See supra note 66 (discussing the consideration of admissibility by courts resolving Brady claims and DOJ policy). 184-85 (1st Cir. e.D. Mich. that admissibility of information is a precondition of a prosecutor’s disclosure obligations. the government may make oral statements to the accomplice witness that augment. Id. See also United States v. 2011) (prosecution witness released from jail following petitioner’s trial). 120-21 (1974). 1979). 20. 512 F. 1. (citing Michael A.Y. 2009) (government witness given subsequent lenient treatment following testimony in petitioner’s case).. 2010 WL 606503 (D. Black’s Law Dictionary defined “impeachment evidence” as “[e]vidence to undermine a witness’s credibility. provided that it does not promise anything to the witnesses prior to their testimony.J. 8:06-CV-1756-T-30-TGW.3d 179. L.. 2. 05-CV-70616-DT.N. 1266 n. Separately. 5.D. define. Sam Roberts. 2008) (government witness promised the possibility of a transfer to a prison facility closer to his family). Breedlove v.php (listing the testimony of informants and snitches as a major factor in 14 of the first 74 wrongful convictions to be overturned by the results of post-conviction DNA testing)). 2011 WL 3420610 (C. at 1154. http://www. 244..D.innocenceproject. REV. 08-1524. Jones v. 608 F. in the absence of any further evidence . Fla. 240. 56 VAND. Williams-El v. South Carolina. 71. Feb. and Atonement. at 1148-49.D. C11- 0313-JCC. Higgins v. Cooper v.’”). 2010) (plea agreement with government witness made after petitioner’s trial was complete). Ricci. supra note 221.Y. 2009). 07-10143-JTM. Secretary Dept.”). such as in most federal cooperation agreements. 242. 473 U. supra note 221. Light-Roth v.3d 223 (6th Cir. 8:04-CV-1447-T-27MSS. Cassidy. 2011 WL 7020919 (W. Nov..

For example. Id. at 180-81. Id.S. 23. 253. 4. United States v. 4. Branker. App’x 816 (11th Cir. allowing prosecutors to make a unilateral determination on the admissibility of a particular piece of information is incongruous with the adversarial process. Id. 25.S. No. Washington v. 583 F. 261. 07-3259-CM. 2009) (“undisclosed impeachment evidence”). 2008). 2011 WL 3511816 (D. Butler. Oct.D. 6. 10. Id. Id. Fisher v. Jones. For more examples in which courts acknowledge the exculpatory or impeachment value of information without expressly calling it favorable. No. Dec. vacated and remanded by Trevino v. Mass. United States v. Hernandez. at 180. Id. at *7. Id. 2008 WL 2048388 (W. Md. 257. 95 (1979). 2011) (“statements constitute impeachment evidence”). 626 F. No.D. 2009 WL 5183835 at *17 (E. Id. in Wessinger v. Supp. Stevenson v. 337 F. 284 (1973). May 16. No. 2008 WL 4621838 (W. (Chi Square statistic . Ct. 2008 WL 50315 (6th Cir. Georgia. Thaler. 2011). DKC 08-1830. 2009) (“[t]here is no dispute 70 regarding whether the evidence of [the witness’s] proposed plea deal was favorable to petitioner or was suppressed by the government. 246. 247. Texas. 274. Ledingham.R. Id. Id. Sept.S. U. 271. App’x 23 (2d Cir. Id. Calderone. CIV S-03-1723. De Rosa.D. Shue v. at 435. 265. 270. 267. 273. See also Hunt v.3d 265 (4th Cir. 1911 (May 28. No. Civ No. 259. 2008) (non- disclosure of deal information that tended to reinforce the defense’s theory of the case). Salgado v. Tennessee. App’x 937 (9th Cir. 449 F. Moya v. Menei v. App’x 172 (9th Cir. United States v. Woodford. 254.D. No. Bell v. Green v. 2008 WL 2095526 (S. 2008).D. 545 F. United States v. CV 07-01598. 2008) (impeachment information not material). C99-0289L. Hamilton v. Ly v. United States v. McClure v. Sisto. an investigative report showing petitioner’s fingerprints were not on the gun or at the scene of . at *18. Bell. Id. Cal. Morgan v. 260. 133 S. Aug. Nov. 2011). Here. 312 F. 2009 WL 4508165 (D. at 181. Galaza. 407 F. P. 2d 113 (D.D. 6:07-CR-00007. App’x 816 (11th Cir. Even if admissibility were a legitimate precondition to disclosure. 272. No. 268. 2010 WL 6334518 (C. 2011). 2010).D. 2011) (“impeachment information relevant to an investigating officer”). 2011) (witness’s prior conviction for welfare fraud was impeachment information). Id. 410 U. Cal. Lewis. No. 22. Jan. Id. EDCV 10-1822-MMM. 2010 WL 1023940 (C. 258.3d 878 (6th Cir. 275 F. Dec. Kansas. Bowersox. 275 F. C 11-2515 JSW.”). May 13. Morgan.D. at *19. Admissibility is typically a question for the courts. Sullivan. 2009). 251. United States v. 2. Supp. Id. 21. Sept. Jan. 04-5523. 2011 WL 3564426 (C. Cal.D. 264. 248. Shell v. Va.C. 256. 250. at 894. Gentry v.D. No. No. Flores v. 2009 WL 3068092 (E. 4:06CV1601 CDP. Kan. 444 F. 2009). 2:09-cv-01516. 262. Butler.D. 249. Cal. W. 2008). 14 (1967). correlation exists between death penalty decisions and favorable information. at *12. 2010) (key government witness’s letter was “collateral impeachment evidence”). Id. Ind. Moseley v.Va. 2009). 388 U.N. 14. Brooks v. Ballard. See infra Section VII. Id. No. Id. App’x 415 (5th Cir. 2009). App’x 178 (9th Cir. Trevino v. Cal. 2008 WL 4162998 (W. 266.002). 442 U.3d 1100 (9th Cir. Cal. 17. 2008). 747 F. 319 (2006). decided only after each side is given an opportunity to make an argument. 5:04CR18-1-V. Id. 609 F.S. 11. 252. 2010). at 892. Allison. No. Armstrong. 2008) (The ATF claim form is exculpatory material). Ramos-Gonzalez. Aug. Id. Jan. 2012). 2013). 2011 WL 612808 (S. Jan. 263.  275. No. Wash. Mungro. see Quintana v. Mo. DeGonia v. at *2. at *6. Yates. Aug. Mississippi. at *8. 2008). 2010). 2012 WL 3235798 (N. United States v.D. Thaler. 2009) (witness statement was “plainly material exculpatory evidence”). 2011 WL 4529606 (C. Cain. CV 08-2729-DOC. (emphasis in original). Ayers. United States. Chambers v.A. 23. 1:07-cv-763-DFH-JMS. Favorable information is overrepresented in death penalty decisions. 2010). 255. No. 269. 2d 280 (D. ED CV 08-01470-RSWL.

Id. The Revised ABA Model Rules of Professional Conduct: Summary of the Work of Ethics 2000. 10-8145). 291. 2012). 281. 293. He is a proponent of a federal rule that clearly spells out the government’s obligation to turn over favorable evidence to defense lawyers. 3. McGhee. 627 (2012) (No. Had the defense in Brooks v.3d. at 101. 547 F. ___. 277. La.8. Department of Justice to disclose all favorable information). July 8. 925 (8th Cir. 278. it is not the policy of the U. governing attorneys in each State where such attorney engages in that attorney’s duties. supra note 51. or the cumulative effect of 13 pieces of withheld information. Wessinger v. In that decision. 276. to be material. e. The ABA Opinion has also received pointed criticism. Ct.S. 6. Pottawattamie County v. supra note 280. Id. supervision. May 2013.8(d).E. 1181 (2009) (mem. cert. 284. 2012).15 (2009).S. See The BLT: The Blog of LegalTimes. the court expressed clear “concern that so much evidence apparently did not make it to the hands of the defense team for trial. 565 U. Levin & Lynn Mather eds. § 530B(a) states that “[a]n attorney for the Government shall be subject to State laws and rules. No. Prosecutors’ Ethics in Context: Influences on Prosecutorial Disclosures. dismissed. The BLT: The Blog of LegalTimes. Yaroshefsky. The court said. L. Id. 286.. 923 N. ABA Formal Opinion 09-454 at 1 (2009). See also Ellen Yaroshefsky & Bruce A. at 44.2d 125 (Ohio 2010). Combatting Brady Violations With an ‘Ethical Rule’ Order for the Disclosure of Favorable Evidence. 132 S.g. Kellogg-Martin. Feb. the court did not find any single piece of withheld information. 469 (2002)). Green. 922. 15 GEO. American College of Trial Lawyers. 285. 1729. CRIM. in LAWYERS IN PRACTICE: ETHICAL DECISION MAKING IN PRACTICE 269 (Leslie C. See supra note 76. District Court for the District of Columbia wrote the committee in April urging it to re-examine amending Rule 16 to require How Courts Are Impeding Fair Disclosure In Criminal Cases . Supra note 76. Id. at 34. The Jencks Act. ABA MODEL RULES OF PROF ’L CONDUCT R. 61 AM.S. A prosecutor could conceivably parse through the discovery in a case and disclose only the information that in his judgment is material exculpatory information.S.S. at 34. See ABA Formal Opinion 09-454 at 1. 04-637. 297.S. 2012 WL 602160 (M. withholding all other favorable information to the detriment of the defendant’s case. 2009 (“Judge Paul Friedman of the U. Rule 3.. Proposed Codification of Disclosure of Favorable Information Under Federal Rules of Criminal Procedure 11 and 16. 95 (2004). Smith v.” Id. L. cert. See Schwartz. the prosecutor in the case would have been accountable for the professional failing noted by the court.). Brief of the National Association of Assistant United States Attorneys and National District Attorneys Association as Amici Curiae Supporting Petitioners at 13-15. REV. 556 U. at *15. to the same extent and in the same manner as other attorneys in that State. 283. For example.” Id. Nov. Despite the court’s criticism of the prosecution. and control mechanisms for managing information within prosecutors’ offices”). Schimpff. supra note 51.” See Schwartz. See supra notes 80 and 82 (as set forth in the Ogden Memo and the U. 2009 (“Judge Emmet Sullivan of the U. 1103 (2010) (mem.”). 289. 28 U. REV. 287. LEGAL ETHICS 441. See supra note 267 and p. 477 n. 279.S. the Ohio Supreme Court expressly rejected the ABA’s position in Disciplinary Counsel v.the crime was just one of 13 separate pieces of information withheld from the defense. 292. A state’s adoption of ABA Model Rule 3. Judicial Conference to Review Prosecution Disclosure Obligations. 280. “[i]t should have. 282. and How the ABA Created a Conflict Between Ethics and the Law on Prosecutorial Disclosure. Attorney’s Manual.). Nancy Gertner & Barry Scheck. Cain. 2008).41-42.D. The court also clearly explained that disclosure of the report “would no doubt have helped the defense’s case. supra note 277. Tennessee requested an order to comply with Rule 3.8(d) (2009). Kirsten M. See. District Court for the District of Columbia says he’s ‘radicalized’ when it comes to prosecution disclosure obligations. at 40 (outlining the elements of an effective ethical rule order and the best practices for obtaining judicial action and compliance). DOJ Pushes ‘Comprehensive Approach’ to Discovery Reform. 1767 (August 2012) (citing Margaret Colgate Love.S. 93. and local Federal court rules. 449. 290.” Id. See also Cone v.8(d) does not mean that the state has also adopted ABA Formal Opinion 09-454. See supra note 4 at 1959 (the two-day symposium examined “best practices to optimize effective training. U. Brief of the American Bar Association as Amicus Curiae Supporting Petitioner at 1. J. Gertner & Scheck. granted.C. 294. 295. 296. Civ. Bell. Id. 41 AM. 71 THE CHAMPION. The problem is exacerbated by contextual bias and the limitations of judging what is material in a case before the case unfolds. 558 U. Cain. 556 U. 288. 23.S.

see also Petition to Approve New California Rules of Professional Conduct and Repeal Existing Rules of Professional Conduct. Ethics Rules Get a Rewrite. 18 U. Id.aspx?id=23792&libID=23761 (“passage would represent a giant step forward in improving the fairness and accuracy of our criminal justice system”).” Id. the American Civil Liberties Union. at 26. 633 (9th Cir. available at http://www. available at http://ethics. Judiciary Split on Need for Rule 16 Changes.S.calbar. July 20. at proposed § 3014(e) (the court may issue a protective order when the information is favorable solely because it provides a basis for impeaching the testimony of a potential witness and only if the government “establishes a reasonable basis to believe” the identity of the potential witness is not known to the defendant and disclosure “would present a threat to the safety of the potential witness or of any other person.. See id. at proposed § 3014(b).C. 316.gov/news/TheThirdBranch/11-05-01/Judiciary_Split_on_Need_for_Rule_16_Changes.ca. that brings the criminal prosecution on behalf of the United States” and “(B) any entity or individual. Bipartisan Discovery Reform Legislation Introduced Today in the United States Senate (March 15.”).uscourts. See Dervan & Edkins.ca. NACDL. 2197 prior to the close of the 112th legislative session.S.. 737 F. Chamber of Commerce. 312. Id. Brady v. “3014. 83. App. United States v. THE CHAMPION. Olsen. at proposed § 3014(d)(2) (classified information remains under the purview of the Classified Information Procedures Act (CIPA). 298. See supra note 76.. the Constitution Project and the Institute for Legal Reform at the U. Id. at proposed § 3014(a)(2) (the prosecution team includes the “(A) the Executive agency .J. jointly with the Executive agency . Maryland. S. 299. but see The Third Branch News. even though many of these decisions involve multiple pieces of information. available at http://ethics. The Fairness in Disclosure of Evidence Act of 2012.3d 625. Daniel Inouye (D-HI) joining Sen. at 8-11 (providing a detailed section-by-section examination of the Act). Duty to disclose favorable information. CAL.”).calbar. Codifying the Brady Rule.The continuing duty to disclose also applies “without regard to whether the defendant has entered or agreed to enter a guilty plea.. Mark Begich (D-AK) and former Sens. available at http://www. See News Release. 2197 at proposed § 3014(a). (2012) (adding a new section. 317. or (iii) participates. . Id.nacdl. See id. 28. 97.The legislation is supported by NACDL. 87 (1963). 304. 373 U. 300. THE CHAMPION. See supra Section I (discussing the prosecution of Senator Ted Stevens). available at: http://www. 301. State Bar of California. Lisa Murkowski as a lead sponsor and Sen. As Judge Alex Kozinski points out in his recent dissent in United States v. (ii) acts under the control of the United States with respect to the criminal prosecution.org/NewsReleases. April 2010. ABA Model Rule 3. 311. Pursuing Discovery in Criminal Cases: Forcing Open the Prosecutor’s Files.aspx. 307. 2197.S.aspx. 737 F. 309. Id. a restrictive materiality standard poses serious risks that prosecutors inclined to practice close to the ethical line will cross it. Olsen. Olsen. May 2011. See Peter Goldberger.. 315. United States v. 427 U. where the California State Bar has prepared a proposal for adoption that will be submitted to the California Supreme Court for consideration. 2012). NACDL Applauds Sensible.gov/LinkClick.gov/Committees/RulesCommission/ProposedRulesofProfessionalConduct. Proposed Rules of Professional Conduct. at proposed § 3014(c). 305. 302. 314. B. Congress failed to enact S. State Bar of California (Cal. including a law enforcement agency or official.” to Title 18 of the United States Code). May 2013. that—(i) acts on behalf of the United States with respect to the criminal prosecution. 72 303. disclosure of any exculpatory information.S. 313. Kay Bailey Hutchinson (R-TX) and Daniel Akaka (D-HI) as original co-sponsors.8(d) has been adopted by all states except California. in any investigation with respect to the criminal prosecution. Agurs.”). 112th Cong.8(d). 308.com/April2010/TopHeadlines/TH3.3d at 626.aspx?fileticket=sOY6VmyQx7s%3d&tabid=2669. 2011).aspx. Mike Klinkosum. 310. Rule 3. 2013). The Fairness in Disclosure of Evidence Act of 2012 is bipartisan in nature with former Sen. the ABA. The ultimate ruling in these 210 decisions was based on the materiality of the most significant piece of allegedly withheld information.calbarjournal. May 2013. supra note 92 (empirical study examining the use of plea bargaining and its innocence problem). 108 (1976). S. 306. at proposed § 3014(a)(1). §§ 1-16).

and pulled a stratified random sample319 of those decisions to arrive at the Study Sample of 1. then the decision was coded as “merits” and it was subjected to extensive analysis. If a court discarded the Brady claim on procedural grounds. In order to ensure ultimate consistency. influence or underlie courts’ resolutions of Brady claims? 1 3. and reached a conclusion as to the merit of the claim. then the decision was coded as a “non-merits” decision and no further analysis or coding was conducted for it. The Guidance Document begins on page four.497 decisions in the Study Sample. As an initial matter. the Research Team developed an extensive Guidance Document providing step-by-step instructions for the analysis and coding of each of the 1. in order to ensure the study included a sufficient number of judicial decisions and that the decisions were randomly selected. Maryland” appeared in the text of the decision.497 decisions for a closer reading. How Courts Are Impeding Fair Disclosure In Criminal Cases . What other issues or factors. Are courts consistent in the use and application of the materiality standard when deciding Brady claims? 2. applied any portion of the Brady analysis to the claim. for each decision. The Guidance Document aligns with a coding spreadsheet used by the Research Team to code every entry in the Study Sample and describes each piece of information to be coded in the spreadsheet.APPenDIx A — MetHoDology n developing this study. the Research Team identified over 5. the researchers limited the universe of decisions to those made in federal courts over a defined five-year time period from August 2007 to August 2012. researchers determined whether the court addressed a Brady claim on its merits. using Westlaw. Specifically. if a court identified and/or acknowledged a Brady claim.320 In addition.000 decisions in which “Brady v. if any. and coding. NACDL and VERITAS Initiative researchers sought to obtain quantitative I answers to three questions: 1. without regard to any later treatment of the decision by a reviewing court.318 From that group. researchers coded each “merits” decision in a vacuum. Specifically. It includes detailed instructions for determining the proper code for each piece of information in each decision. To what extent is favorable information being withheld from the defense? The researchers established a variety of parameters to narrow the research into a manageable data set without compromising the possibility of statistically meaningful relationships. analysis.

that the court assessing the Brady describe the materiality test articulated by the claim was doing so under the actual risk of sending court when assessing materiality of allegedly the petitioner/appellant to be executed. 2 decision the researchers determined whether the incentive/deal. in which a petitioner/appellant had been facing the death penalty at one point. white collar and regulatory. The following categories: measures included. in every statements/testimony. (4) Brady violation. Every “merits” decision received one or more With regard to “type of representation. were not may have considered when assessing coded as “death sentence” decisions. procedural posture. the u Value of Information: exculpatory. insufficient detail. (2) not favorable. imposition of death material. both.” codes in the following categories: researchers made best efforts to distinguish between public defenders. petitioner/appellant appeared pro se or had some form of representation. court-appointed u Type of Information: physical. does not exist. every researchers coded every decision for a variety of decision received additional coding in the more subjective categories that required the favorability category to reflect the manner in researcher to apply certain principles to the court’s which favorability was determined. counsel. Regardless. opinion and ultimately make a determination as articulated in the Guidance Document.. materiality of allegedly withheld information. Every A variety of quality assurance measures were put “merits” decision received only one code in the in place to optimize coding consistency. u Disclosure/No Withholding: multiple codes immigration. type of withholding. documentary. other.” the Research Team selected from not relevant or frivolous. property. Decisions withheld information. and decision result. As outlined in the Guidance Document. weapon. (3) not representation. sex (violent and non-violent).e. For “crime type. the following options: violent (non-sex). and available to describe court’s rationale for other. the following objective characteristics: decision year.321 In addition. drug. the petitioner/appellant was in fact facing the death penalty at the stage of proceedings under u Materiality Test: multiple codes available to analysis — i. In addition to these objective categories. not favorable. type of crime. current jurisdiction. but were not limited to: . late disclosure. As described in the Guidance Document. information was not withheld or was researchers labeled decisions as “death sentence” if disclosed. origin u Brady Claim Result: (1) disclosure/no jurisdiction. The Guidance Document established concluding the allegedly withheld definitions for each crime type. trial year. and private counsel. researchers coded every “merits” decision by using impeachment. but the possibility of u Materiality Factors: various factors the court receiving the death penalty was removed. sentence. u Favorability: favorable.

supplemental coding. used to evaluate the level of statistical significance attained in a cross-tabulation. and in u Weekly questions and answers among all limited instances a post-trial motion. The chi-square calculation shows how likely it is that an observed distribution is due to chance. In addition to the above quality assurance measures. For a How Courts Are Impeding Fair Disclosure In Criminal Cases . u The ability of researchers to flag decisions for which make up more than 90 percent of all supervisory review. conducting a comparison of the coding results. u Supervisory review of over 65 percent of the the Study Sample includes less than one-third of decisions. it must meet a minimum level of conducting a comparison of the coding significance. In addition.u Coding of the first 150 decisions in the Study relationship to be considered statistically Sample by two separate researchers and significant.05 level. but rather were attributable to a specific cause. Statistical significance was determined by conducting a chi-square calculation. including code correction. if a chi-square calculation is less than the . raised 3 through a writ of habeas corpus. trend analysis. criminal cases. almost exclusively the result of a trial. there would be less than a five u Coding of the first 10 decisions of each percent probability that the correlation occurred researcher by a project supervisor and by chance. The study researchers and project supervisors. It is important to acknowledge the limitations of the study’s methodology. In results. reaching federal court. an appeal. code correction. therefore does not touch on the majority of criminal prosecutions resolved without trial.322 or those cases in which the information is yet to be discovered. the federal court decisions citing Brady during the selected five-year time period. Researchers analyzed the data for statistical significance to find issues that were not likely to occur randomly.05 in this study. which was set at . and it does include u External review of 250 decisions by criminal Brady claims that were abandoned before defense practitioners. and other edits. Project Supervisors conducted a significant review of the decisions and the coding for a variety of purposes. which are comparisons. other words. this u Adjustments and calibrations to the study only looks at decisions that stem from a Guidance Document based on the coding challenge to a criminal conviction. As discussed earlier.

for example. Supreme Court. then enter the ruling on the opinion of the highest court only. Only include the last name(s) of the party. Decision name — List the decision name provided by Westlaw.” and “United States” as “U. If there is absolutely no discussion of the Brady claim other than a flat denial. analyzing and coding. such as a Circuit Court and the U. for example. whether the opinion was affirmed or reversed. then type “N” and move on to the next case. Brady Merits Claim (y/n) — This category asks. . If the court does address a Brady claim on its merits. then list the federal reporter citation. If. Use Westlaw’s “Full History” and “Direct History” functions to determine the correct entry for this column. If the opinion was reviewed by more than one higher court. the opinion decides the case on another issue and does not reach the Brady claim. for example. if so.S. Abbreviate “versus” as “v. and “F” if there was no higher court review of the case. “R” for a reversed ruling. 4 Note: The phrase “the opinion” is used throughout this document to refer to the written opinion that you are reading. as an initial matter. then the opinion does not address a Brady claim on its merits. BRADY MAterIAlIty StUDy gUIDAnCe DoCUMent his document seeks to provide step-by-step guidance for the analysis and coding of every decision T reviewed as part of the Brady Materiality Study being conducted by VERITAS and NACDL. However. then the opinion does not address a Brady claim on its merits. Higher Court review of the opinion (A/r/F) — This category looks at whether the opinion was reviewed by a higher court and. then the opinion does address a Brady claim on its merits. the opinion dismisses the defendant’s Brady claim on the grounds that there was no suppression. If there is no Westlaw citation. if. This document aligns with the coding spreadsheet and describes each piece of information that must be listed on the coding spreadsheet. The goal of this document is to create and maintain maximum consistency throughout the entire coding process. then type “Y” and continue the analysis and coding. Mark “A” for an affirmed ruling. Please review this document in its entirety prior to coding. If.S.” Citation — List the Westlaw citation only. then the opinion does not address a Brady claim on its merits. there is no Brady claim at all or the opinion states that the defendant “has not exhausted state remedies” and thus the Brady claim is not ripe for consideration. whether this opinion addresses a Brady claim on its merits. If the court does not address a Brady claim on its merits.

D.S. n MS = Motion to Suppress Evidence concluded. and not a trial. For decisions [Note: This classification will require additional originating in federal district court. If the opinion is based on a motion.” “S.D. to suppress evidence) court’s number only (i. such as “E. Supreme Court.e.C. n COA = Request for Certificate of Procedural Posture — List the method in which Appealability the underlying case or decision reached the court 5 writing the opinion. then list the same year n CN = Petition for Writ of Coram Nobis as the opinion.Y. use the trial or proceeding u OTHER = Procedural postures listed below: referenced in the opinion. to For federal circuit courts. Please look at the history to find whether such as “E. or proceeding out of which the Brady claim arose.N.” How Courts Are Impeding Fair Disclosure In Criminal Cases . including opinions adopting all “State” for decisions originating in state court or or part of a Magistrate Judge’s Report and “Fed” for decisions originating in federal court.D. Recommendation origin 2 — This category looks at the very first n HRR = Habeas petition report and point of entry. list the follow-up to determine whether the recommendation commonly accepted abbreviation for that court.” etc.D. simply list the circuit dismiss. n MM = Motion for Mistrial trial year — If available.D. To the extent there were multiple trials or proceedings.S. and “SCOTUS” for the U. “Circuit” for federal circuit courts. for that issued the opinion. Cal.” “D. list the year that the trial. Supreme Court.. list the two- letter abbreviation of that state. “2” not “2nd”).N. the recommendation was adopted and include in the Notes section..C. for judgment of acquittal) list the commonly accepted abbreviation for that court. i. new trial. List the merits. into the criminal justice system. of recommendation. u HG = Appeal of Habeas petition grant Current Juris 2 — This category looks at the court u MPJ = Motions post-judgment (to vacate.. Use the following phrases: n ASHP = Application for Stay of HP n A = Appeal origin 1 — This category looks at the very first point of entry.e.year of Decision — List the year the opinion was n MD = Motion to Dismiss decided by the court.. See Notes for further instructions.S.” “D.” etc. For federal district courts.” “S. was adopted. Cal.] Current Juris 1 — This category looks at the court that issued the opinion. of n HP = Habeas petition to be reviewed on the case upon which the opinion is based. simply list “U.D. into the criminal justice system. List “District” for federal u HD = Appeal of Habeas petition denial district courts. u MTN = Motions during trial (for mistrial.. opinions of the case upon which the opinion is based.Y. For Magistrate Judges decisions originating in state court. For the U.

If the defendant is pro se. statements to or by violent or non-violent.. u Select (3) if Property = Crimes against u Select (3) if Documentary — Documentary property. trace material Select from the following: (such as fingerprints or firearm residue). such as arson or burglary. category includes statements or declarations of fact. u Select (6) if Other = Anything that does not type of representation — Mark the easily fit into the above categories. u Select (1) if Violent (non-sex) = Violent crimes. b). identify the accused. corruption. not the lower court underlying case. not sexual in nature. Mark “Y” or “N. such as a murder weapon).”323 proceedings. label each with a). c) . regulatory violations. either oral or written. misidentifications or failures to porn possession. such as murder u Select (2) if Statements/Testimony — This or assault. list the u Select (4) if Drug = Crimes involving complete name of the defense attorney(s) as it controlled substances. Mark crime is the most serious. Select from the following: type of Crime(s) — Mark the appropriate u Select (1) if Physical — This category number in the box according to the most serious includes physical items (any material object type of crime charged against the defendant. etc. u Select (2) if Sex (violent or not) = Sex crimes. paperwork or looks at the proceedings related to the opinion. appropriate number in the box according to the type of defense representation as it appears in the Death Sentence Imposed — This category asks opinion. etc. This includes transcripts. please consult a supervisor. by any person. u Select (2) if Pro Se. If there is more than one piece of information. leave this entry blank. specificity the information the defendant asserts the government withheld in violation of Brady. This category looks at the proceedings whether a death sentence was imposed in the 6 related to the opinion. then u Select (5) if White Collar and Reg = type the defendant’s full name. Defense Attorney name — If available. type of Information — Mark the appropriate Crime — Most serious charge — List the most number in the box(s) according to the type(s) of serious or leading criminal charge against the information the defendant asserts the defendant. as many types that apply to the information. etc. such as rape or child police. and biological material (such as DNA). appears in the opinion. If there is no name. not the lower court proceedings. This category Financial crimes. Use your best judgment on which government withheld in violation of Brady. information includes any media by which . Select from: nature of the Information — Describe with u Select (1) if Represented by Counsel. u Select (3) if Unknown. If you have a question..

testimony.. Select only one from the had a self-interested motive to testify. benefit. in exchange for his or her testimony. points to the defendant’s u Select (5) if Other — Information that is not innocence or mitigating defendant’s guilt. and writings and/or evidence. (2) for 7 witness. This category looks at the “statements/testimony” category. given impeachment. photographs. This includes information on criminal history. films. Select (1) for exculpatory. information can be preserved. prior bad acts and known but Information Code — This category asks whether uncharged conduct or bad acts. corresponding a). an incentive/deal decision designated by a (4) in the Nature of Information code. tape cannot be substantiated according to the facts recordings. impeachment include statements covered by the information. The court unexplained benefits. Consider these or may be given. on paper. If there are different results for different u Select (2) if the incentive/deal information pieces of information. as well as the information the defendant asserts the information on mental or physical government withheld in violation of Brady is impairments of the accused. and (3) for both. b). This does not exculpatory information. u Exculpatory: Information that is favorable to the defendant. If there is no involves a government deal with a witness. physical. or documentary in nature. impeachment of an agreement between the government and a both. etc. such as police u Select (5) if the incentive/deal information reports. statement or assistance. in which the witness is promised. If that happens. definitions as guidance: leniency. Please code this section only if this is agent of the government. then u Select (4) if the incentive/deal information code based on the actual ruling and not any involves information suggesting the witness additional discussion. u Impeachment: Information that calls into Incentive Deal Code — This category seeks to question the credibility of a witness against the code the different types of incentive/deal defendant. please denote that with the involves a witness with an admitted self. printed emails. c) from above. or both. interested reason to testify. medical records. as articulated in the opinion. some incentive. explanation of the court’s ruling. Select from: result of Brady Claim — Provide a short description of the court’s conclusions on the Brady u Select (1) if the incentive/deal information claim. may rule based on prong (1) or (2) but then engage in a discussion of materiality. including a police officer or other information. information from the perspective of the defendant and his or her asserted characterization u Select (4) if Incentive/Deal — Information on of the information as exculpatory. Brady result Code — This category asks for the u Select (3) if the incentive/deal information court’s ruling on the defendant’s asserted Brady involves a government witness receiving violation as articulated in the opinion. then note that here. following: How Courts Are Impeding Fair Disclosure In Criminal Cases .

u FI = Favorable Implicit (The court is silent on u Select (3) if the opinion concludes favorable the favorability of the information. The u P = Pre-trial decisions in this category are assessed from the perspective of the court as well as considering the u D = During trial stated facts of the case. but it was not favorability is implied upon a reading of the material. information not disclosure of favorable information. acknowledged by the court or implicit in the facts of the case. or (4) should be coded in this section. favorable u FW = Favorable information withheld. seeks to code decisions in which favorable 8 information was disclosed late. Select from the following: favorable. but information was withheld. “favorable. information not favorable. Please select one of the following: u A = After government received u FE = Favorable Express (The court expressly u E = End of trial calls the information “favorable”) Due Diligence Code — This category seeks to u FA = Favorable Acknowledged (The court code those decisions in which the court finds .” but does state that the information has either “exculpatory” or “impeachment” u Select (2) if the opinion concludes information value to the defense) was withheld. information was withheld) favorable information disclosed late Favorable late Disclosure timing — This u O = Other. u Select (1) if the opinion concludes there was does not expressly call the information no withholding. Select from the the favorability of the withheld information is following: expressly stated by the court. Please code withheld this section only if this is a favorable late disclosure decision designated by a FL in the Favorability Code — This category asks whether Favorable Late Disclosure Code. Please select one of the following: u O = Other (Information was not favorable. information was timely disclosed. “Withholding” in this category includes decisions in which favorable information was u FL = Favorable Late (Favorable information disclosed late. (3). category seeks to code the timing of the late information not relevant. facts of the decision by the Research Team) u Select (4) if the opinion concludes there was a Favorable late Disclosure Code — This category Brady violation. Only those decisions with Brady was disclosed late) result Code (1). Please code this Favorable Withheld Code — This category asks section only if this is a favorable withheld whether the information the defendant asserts the decision designated by a FW in the Favorable government withheld was actually withheld and Withheld Code. but it was not favorable.

section only if this is a due diligence decision in light of the whole record. information might have affected the jury’s ultimate judgment. precedent and standards of defendant knew about the information or review. Please select more than relevant or favorable to defendant’s claim one code if necessary: Due Diligence basis — This category seeks to u rD = reasonable Doubt: Whether the code the basis for the court’s imposition of the due withheld information creates a reasonable diligence rule upon the defendant. fill out the materiality analysis columns. Include any factors there is a reasonable probability that. If the court rules that have been different. the withheld designated by a DD in the Due Diligence Code. the information was disclosed to is or is not material. the reviewer should select which of could have obtained the information through the following tests most closely parallels or exercise of reasonable diligence accurately reflects the test/reason articulated by the court when declaring that the information at issue 9 u O = Other. the result would and/or found persuasive. Select from the following: court’s ultimate reasoning and conclusion on the materiality of the withheld information. Rather. but continues to do a materiality obtained the information through exercise of due analysis. information creates a reasonable doubt that did Select from the following: not otherwise exist. This u DD = The court finds relevant or favorable selection should not be based on the court’s general information not to be withheld because the recitation of case law. u K = Defendant knew about the information u rl = reasonable likelihood: Whether there no Withholding Details — Provide a description is a reasonable likelihood that the withheld of the court’s reasoning behind its finding of no information could have affected the judgment withholding. diligence. had the the court disregarded. Whether there is any is a no withholding decision designated by a (1) in reasonable likelihood that the withheld the Brady Result Code. considered but dismissed. Please code this section only if this is a no withholding decision designated by a (1) in the Materiality tests — This category seeks the Brady Result Code. Please code this section only if this of the trier of fact. information been disclosed. Possible variations on each test the defendant or the information is not have been provided below. Whether. Whether the withheld How Courts Are Impeding Fair Disclosure In Criminal Cases .information is not withheld because the defendant there was no withholding or the information was knew about the information or could have not favorable. u C = Defendant created the information u SCrD = Significant Chance of reasonable Doubt: Whether there is a significant chance u DD = Defendant could have obtained the that the withheld information would have information through due diligence induced a reasonable doubt in the minds of enough jurors to avoid conviction. Brady Materiality Analysis Details — Provide a description of the court’s Brady materiality analysis u rProb = reasonable Probability: Whether as articulated in the opinion. Please code this doubt that did not otherwise exist.

u Ft = Verdict Confidence/Fair trial: Whether the withheld information could reasonably put u DV = Different View of testimony: Whether the whole case in such a different light as to there is a reasonable probability that. but the possibility of receiving the death penalty was later removed. . Whether there is reasonable probability that u CC = Clear and Convincing: Whether the disclosure would have made any difference at defendant has shown. u rPoss = reasonable Possibility: Whether there is a reasonable possibility that.. and therefore could not be analyzed in the same manner as the “merits” decisions.500 targeted decisions / 5. § 2254. 6. Project Supervisors reviewed all the decisions coded as “death sentence imposed” in order to exclude those decisions in which a petitioner had been facing the death penalty at one point. where sub-populations. language in “Brady Materiality Analysis Details” category. researchers first found the percentage of the total: 1.There were some decisions in which the court resolved the Brady claim on the merits. can be isolated. that disclosure of the withheld information would have resulted in acquittal. Provide the test have been different. the members of the jury could have viewed the 10 defendant received a fair trial. trial resulting in a verdict worthy of confidence.500 decisions. u Pe = Preponderance of Information: Whether the defendant has shown. the group of death penalty decisions discussed in this report only includes those in which the petitioner was in fact facing the death penalty at the stage of proceedings under analysis — i. However. tendency to preclude a finding of guilt or lessen punishment. To get a stratified random sample of approximately 1. had the undermine confidence in the verdict. commonly called strata. these decisions resolved Brady claims from both federal and state prosecutions. Thus. 5. had the u ot = other: Any test that does not fit into information been disclosed. information would have made a difference of the withheld information would have great enough to show a reasonable probability resulted in acquittal. by a preponderance of the evidence. selected the corresponding number of decisions from the stratified sample calculation. information been disclosed.C. one or more in the absence of the withheld information.587 decisions were first grouped by year. 4.The Study Sample included only decisions made by federal courts. A stratified sample is obtained by taking samples from each stratum or sub-group of a population. the 5.S. 26. that the result would have been different. Using Microsoft Excel’s =Rand() formula. that the court assessing the Brady claim was doing so under the actual risk of sending the petitioner to execution. After the initial coding. these decisions were included in the “non-merits” group of decisions and did not receive any additional coding. 3. the result would one of the above categories. 2. but did so with either a flat denial or a discussion so limited that the researchers were unable to discern any meaningful information about the claim.587 total decisions between August 2007 to August 2012 = 26. Stratified sampling is generally used when a population is heterogeneous. To get a random sampling of these targeted 1. understood as a witness’s testimony differently. by clear and convincing the guilt or penalty stage of the trial evidence. Rather.e.500 decisions. they were not included in the “merits” group of decisions. that disclosure 1.8 percent of the decisions from each year. the decisions coded as “weapon” and “immigration” crimes were consolidated together and added to the decisions coded as “other” crimes for the purposes of data presentation and statistical analysis. See 28 U. Researchers then arranged the decisions in each respective year from smallest random decimal to largest random decimal and starting from the smallest decimal. Whether. Ultimately. each decision in each year was assigned a random decimal between 0 and 1.8 percent. Decisions originating in state courts generally reached the federal courts through a petition for a writ of habeas corpus. Whether we can be confident that the jury u Pt = Probative tendency: Whether the would have returned the same verdict had the withheld information has some probative information been disclosed. Because these decisions did not include a merits discussion. See supra note 92 (noting that 97 percent of federal convictions and 94 percent of state convictions are the result of a plea agreement).

This information includes both admissible and inadmissible evidence. which requires disclosure of information that “tends to negate the guilt of the accused or mitigates the offense. v Bagley. Supreme Court decision of U.” and states that “willful and deliberate failure to comply” with the mandate of Rule 3. Bagley Standard: The standard for assessing materiality articulated in the U. Favorable Information: Information that tends to negate the guilt of the defendant. Death Penalty Decision: Decision in which the petitioner/appellant was in fact facing the death penalty at the stage of proceedings under analysis — i. Maryland.8(d) or state law adopting the rule. or to have a negative impact on the credibility or reliability of a government witness. Fairness in Disclosure of evidence Act of 2012: U. This holding is sometimes referred to as the Brady rule. How Courts Are Impeding Fair Disclosure In Criminal Cases .S. Due Diligence Decision: Decision in which the court excuses the prosecution’s non-disclosure or late disclosure of relevant or favorable information by imposing the due diligence ‘rule’ on the defense. Supreme Court decision holding that the non-disclosure of favorable information 1 to the accused violates due process when the information is material either to guilt or punishment. Maryland: U.S.S. or actually did know about the undisclosed information. Brady v. should have. 83 (1963). 667. the court assessing the Brady claim was doing so under the actual risk of sending the petitioner/appellant to execution.S.APPenDIx b — rePort gloSSAry Brady Violation: A court resolves a Brady claim by finding that the prosecution withheld or failed to disclose favorable. or the essential facts permitting the defendant to take advantage of the information. to mitigate the defendant’s sentence. introduced by Senator Lisa Murkowski and others during the 112th Congress. 373 U. ethical rule order: Court order that requires prosecutors to comply with ABA Rule 3. Senate bill 2197. requiring prosecutors to disclose all information that may reasonably appear favorable to the defendant and appellate courts to employ a harmless beyond a reasonable doubt standard of review for disclosure violation claims.e. 702 (1985) (Specifically.S. Chi-Square Calculation: The chi-square calculation shows how likely it is that an observed distribution is due to chance.8(d) will be viewed as contempt of court. information is only material if there is a “reasonable probability” that the result would have been different had the information been disclosed to the defense)..S. material information in violation of Brady v. Due Diligence ‘rule’: Rule that excuses the prosecution’s failure to disclose information if the defendant could have. 473 U.

and information suggesting a witness had a self-interested motive to testify. etc. District Courts that establishes disclosure rules. Jencks Act: A federal statute codified at 18 U. statement or assistance. procedures.”). or may be given. understood as a trial resulting in a verdict worthy of confidence.S. some incentive.. Incentive/Deal Information: Information of an agreement between the government and a witness. in which the witness is promised. leniency. Supreme Court decision Kyles v. but whether in its absence he received a fair trial. when deciding materiality. 514 U. 434 (1995) (Specifically. The Guidance 2 Document is part of the Methodology Appendix and aligns with a coding spreadsheet used by the Research Team to collect data on every entry in the Study Sample. Kyles Standard: The standard for materiality articulated in the U. benefit. and obligations for both the prosecution and the defense in relation to a federal criminal prosecution. or the favorable nature of the information could be discerned from a reasonable reading of the facts. guidance Document: Document implementing the study methodology by providing step-by-step guidance for the analysis and coding of every decision reviewed as part of the study. Habeas Corpus: A habeas corpus petition is a petition filed with a court by a person who objects to his own or another’s detention or imprisonment.” the court implies the information is favorable by acknowledging the exculpatory or impeaching value of the information. information of a government witness receiving unexplained benefits. Federal Criminal Procedure rule 16: Rule for U. Federal-originated Decision/Case: Decision in which the underlying case originated in federal court. in exchange for his or her testimony. 419.S. Methodology Appendix: A detailed description of the methodology implemented by the Research Team in analyzing the Study Sample. Merits Decision: Decision within the Study Sample that addresses and analyzes a Brady claim on the merits. given. This also includes information that a witness had an admitted self-interest to testify. . among other things.S. “The question is not whether the defendant would more likely than not have received a different verdict with the evidence. § 3500 that.C. Whitley. Favorable Information Decision: Decision in which the court explicitly states the information is “favorable. late Disclosure Decision: Favorable information decision in which the disclosure of the favorable information was untimely.S. permits prosecutors to withhold witness statements until after the witness has testified on direct examination. The petition must show that the court ordering the detention or imprisonment made a legal or factual error.

non-Merits Decision: Decision within the Study Sample that does not address the defendant’s Brady
claim on the merits because the claim is not ripe for consideration, the opinion decides the case on another
issue and does not reach the Brady claim, or the opinion contains no discussion of a Brady claim.

not Favorable: The decision resolves the Brady claim by holding that the information at issue is not
favorable because it lacks exculpatory, impeachment, or mitigating value.

not Material: The decision resolves the Brady claim by holding that the information at issue is not
material because there is no reasonable probability that the result would have been different had the
information been disclosed and/or the withheld information cannot reasonably be viewed to put the
whole case in such a different light as to undermine confidence in the verdict.

no Withholding/not Withheld: The decision resolves the Brady claim by finding the information at
issue was not withheld, that it was disclosed, or that the prosecution had no duty to disclose it. 3
Project Supervisors: VERITAS Initiative Director Kathleen “Cookie” Ridolfi, NACDL Counsel for
White Collar Crime Policy Tiffany M. Joslyn, and VERITAS Initiative Pro Bono Research Attorney
Todd Fries.

research team: The group of individuals who developed and executed the study, including VERITAS
Initiative Director Kathleen “Cookie” Ridolfi, NACDL Counsel for White Collar Crime Policy Tiffany
M. Joslyn, VERITAS Initiative Pro Bono Research Attorneys Todd Fries and Jessica Seargeant, and six
law student volunteers from the Santa Clara University School of Law.

Statements: Information consisting of statements or declarations of fact, either oral or written, by any
person. This includes transcripts, statements to or by police, misidentifications, or failures to identify the
accused, and includes statements made by the victim, witnesses, co-defendants, and defendants.

State-originated Decision/Case: Decision in which the underlying case originated in state court.

Study Sample: The complete set of 1,497 federal court decisions analyzed by the Research Team.

theory of the Case: A theory of the case is an advocate’s position and approach to the undisputed and
disputed evidence that will be presented at trial. The theory of the case is usually developed before a trial
begins and sets out the factual support for the verdict an advocate is seeking.

Undisclosed Favorable Information: Information that the Research Team determined to be favorable
that was never disclosed to the defense.

Withheld Favorable Information: Information that the Research Team determined to be favorable that
was never disclosed to the defense or was withheld by the government and then disclosed in an untimely
manner.

How Courts Are Impeding Fair Disclosure In Criminal Cases

AU tHor bIogrAPHIeS

KAtHleen “CooKIe” rIDolFI is a Professor of Law at Santa Clara University
School of Law and the cofounder and former Director of the Northern California Innocence
Project. In 2004, she co-founded the Innocence Network, an affiliation of organizations dedicated
to pursuing exonerations on behalf of wrongfully convicted prisoners and working to redress the
causes of wrongful conviction. She was lead researcher and co-author of Preventable Error, A
Report on Prosecutorial Misconduct in California 1997-2009. From 2004-2008, she served on the
California Commission on the Fair Administration of Justice tasked with the study and review
of the administration of criminal justice in California.

In 2010, Professor Ridolfi launched the VERITAS Initiative, a research and policy program at
Santa Clara University School of Law committed to pursuing data-driven justice reform. She
remains committed to educating law students by teaching in the areas of criminal law, wrongful
conviction, and legal ethics. Professor Ridolfi has been the recipient of numerous awards, including
California Lawyer Magazine Attorney of the Year, Women Defenders Annual Award, and the
ACLU’s Don Edwards Civil Liberties Award. She has also been recognized by the Daily Journal
as one of the top 75 women litigators in California.

tIFFAny M. JoSlyn serves as Counsel for White Collar Crime Policy at the National
Association of Criminal Defense Lawyers (NACDL). In this capacity, she tracks and analyzes
criminal legislation in order to prevent overcriminalization, overfederalization, and the further
erosion of mens rea. Ms. Joslyn works on various advocacy and education initiatives in these areas
and criminal justice reform generally. She has authored papers and articles on white collar and
criminal justice litigation, legislation, and policy. Ms. Joslyn served as NACDL’s lead researcher
on two intensive research studies and is co-author of Without Intent: How Congress Is Eroding the
Criminal Intent Requirement in Federal Law. She regularly collaborates with an ideologically
diverse coalition of organizations in support of a bipartisan reform agenda and works with the
nation’s top criminal defense lawyers to develop and execute two national seminars annually.

Prior to joining NACDL, Ms. Joslyn clerked for the Honorable John R. Fisher of the District of
Columbia Court of Appeals. She graduated with honors from George Washington University
Law School, where she co-authored the 2006-07 Van Vleck Constitutional Law Moot Court
Competition Problem and served as Co-President of Street Law. Ms. Joslyn graduated summa cum
laude from Clark University, where she majored in American Government with concentrations
in Law, Ethics, and Public Policy.

toDD H. FrIeS is a Pro Bono Research Attorney with the VERITAS Initiative at the Santa
Clara University School of Law and the Operations Director for the Northern California
Innocence Project (NCIP). His work on behalf of the VERITAS Initiative began in 2011, when
he coordinated a multi-state research effort and national speaking tour focused on prosecutorial
misconduct. As Operations Director for NCIP, Mr. Fries is responsible for enhancing the
organization’s internal processes and infrastructure to increase its efficiency, effectiveness, and
sustainability. He joined NCIP in 2010 as a Research Attorney focusing on policy initiatives to
help prevent wrongful conviction.

Prior to working at the VERITAS Initiative and NCIP, Mr. Fries worked as an Employment
Litigation Associate at Paul Hastings LLP in Palo Alto and as an attorney at the Santa Clara
County Superior Court Family Law Self-Help Office. He graduated cum laude from Santa Clara
University School of Law in 2009 with a certificate in Public Interest and Social Justice after
receiving a Bachelor of Arts from the University of California, Los Angeles.

How Courts Are Impeding Fair Disclosure In Criminal Cases

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org/discoveryreform/materialindifference .nacdl.This publication is available online at www.

DC 20036 Phone: 202-872-8600 www.org .nacdl.N ATIONAL A SSOCIATION OF CRIMINAL DEFENSE LAWYERS 1660 l Street nW. 12th Floor Washington.

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