Bill of Rights. (From the public domain.)

Last August, I wrote about  Brady v. Maryland, 373 U.S. 83 (1963).  In its key holding, Brady proclaims: “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady , 373 U.S. at 87. Therefore, Brady is a sword for the criminal defense in seeking exculpatory evidence, and a shield for seeking court relief when Brady is violated.

This week, Virginia’s intermediate appellate court determined that Brady had been violated in a criminal prosecution, but still affirmed after determining that the defendant had not suffered sufficient prejudice to merit appellate relief. Coley v. Va., ___ Va. App. ___ (Feb. 9, 2010).

Coley provides the following Brady law overview:

“A Brady violation occurs when the government fails to disclose evidence materially favorable to the accused.” Youngblood v. West Virginia, 547 U.S. 867, 869 (2006) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). The United States Supreme Court has held that Brady obligations extend not only to exculpatory evidence, but also to impeachment evidence, Bagley, 473 U.S. at 676, and that a Brady violation exists even when the government fails to divulge evidence that is “known only to police investigators and not to the prosecutor.” Kyles v. Whitley, 514 U.S. 419, 438 (1995). “[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, including the police.” Id. at 437.

“There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

Evidence is material “‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’” Id. at 280 (quoting Bagley, 473 U.S. at 682). However, it is not necessary to demonstrate “by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal.” Kyles, 514 U.S. at 434. A conviction must be reversed if the accused shows “that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Id. at 435.

Coley v. Va., ___ Va. App. ___.

Many prosecutors should be expected to define Brady much more narrowly than the defense, whether because of honest differences of opinion, insufficient understanding of the caselaw and professional conduct rules addressing exculpatory evidence, pressures from (and perhaps even incorrect training from) supervisory prosecutors and police, procrastination or overwork, disorganization, and failure to analyze and pursue potential exculpatory evidence. Hopefully dishonesty will not come into play with the non-disclosure of exculpatory evidence, but criminal defense lawyers must leave room for that risk from police and prosecutors.

In any event, it makes sense for criminal defense lawyers in each criminal trial matter not only to demand exculpatory evidence early on — and as frequently as needed thereafter — from prosecutors, in writing and orally, but also to provide prosecutors some written definitions of exculpatory evidence with citations to caselaw and applicable professional conduct rules. Jon Katz