A Return to Brady Basics By Solomon L. Wisenberg and Meredith A. Rieger BARNES & THORNBURG LLP

EXPERIENCE A Return to Brady Basics By Solomon L. Wisenberg and Meredith A. Rieger BARNES & THORNBURG LLP I. Introduction For nearly fifty years, the United States Supreme Court s decisions in Brady v. Maryland and its progeny have served as a constitutional guide map to the guarantee of a fair trial. 373 U.S. 83, 87 (1963). Under the Brady line of cases, prosecutors have a constitutional obligation to produce exculpatory and impeachment information known as Brady material. Due to several recent high profile cases involving Brady violations and related prosecutorial misconduct where courts have sanctioned prosecutors and/or dismissed cases altogether it has become increasingly clear that the failure of prosecutors to meet their Brady responsibilities is a significant problem in the federal justice system. On January 4, 2010, the Department of Justice responded to this problem by issuing three memos through outgoing Deputy Attorney General David Ogden (the Ogden memos ). 1 The Ogden memos included a Guidance for Prosecutors Regarding Criminal Discovery ( Guidance Memo ) and related training initiatives that outlined a methodical approach to consideration of discovery obligations that prosecutors should follow in every case to avoid lapses that can result in consequences adverse to the Department s pursuit of Justice. Guidance Memo at 1. 2 Additionally, on February 8, 2010 the American Bar association approved a resolution urging courts in felony and serious misdemeanor cases to hold a pretrial conference to address the disclosure obligations of both prosecutors and defense counsel. 3 1 See David W. Ogden, Deputy Attorney General, Memorandum for Department Prosecutors, Guidance for Prosecutors Regarding Criminal Discovery; Memorandum for Department Prosecutors, Issuance of Guidance and Summary of Actions Taken in Response to the Report of the Department of Justice Criminal Discovery and Case Management Working Group; and Memorandum for Heads of Department Litigating Components Handling Criminal Matters, Requirement for Office Discovery Policies in Criminal Matters, January 4, 2010. 2 The Guidance Memo is codified at Crim. Res. Manual 165 Guidance for Prosecutors Regarding Criminal Discovery. 3 The resolution states that the ABA urges federal, state, local and territorial courts to adopt a procedure whereby a criminal trial court shall conduct, at a reasonable time prior to a criminal trial, involving felony or serious misdemeanor charges, a conference with the parties to ensure that they are fully aware of their respective disclosure obligations under applicable discovery rules, statutes, ethical standards and the federal and state constitutions and to offer the court s assistance in resolving disputes over disclosure obligations. See http://www.abanet.org/leadership/2010/midyear/pdfs/daily_journalfinal.pdf

With the growing awareness surrounding the importance of ensuring that federal prosecutors meet their constitutional discovery responsibilities, the significance of understanding Brady and its progeny cannot be understated. At its core there are three elements of a Brady violation: 1) The evidence at issue must have been favorable to the accused because it is either exculpatory or impeaching of a government witness; 2) The evidence at issue must have been suppressed by the prosecution, whether willfully or inadvertently; and 3) The suppression of evidence must have resulted in prejudice to the accused. Note that these elements have been created in the context of post-trial litigation. The goal of the criminal defense practitioner is to obtain Brady material in time for its effective use at trial. This article is intended to provide a return to basics overview of the seminal United States Supreme Court decisions concerning the Brady doctrine to assist defense practitioners in understanding the government s discovery obligations so that they may better identify Brady violations and protect the rights of their clients prior to conviction. II. The Development of Brady Doctrine a. Brady v. Maryland In Brady v. Maryland, the Court held that prosecutors have an affirmative duty under the Fifth and Fourteenth Amendments to provide evidence favorable to a defendant upon request when such evidence is material to guilt or punishment, irrespective of whether or not the prosecutor acted in good faith. 373 U.S. 83, 87 (1963). The petitioner and a companion were convicted of felony murder and sentenced to death in separate trials by a Maryland state court and both defendants convictions were affirmed by the Maryland Court of Appeals. Id. at 84. In Brady s trial, which occurred first, the petitioner took the stand and admitted to participating in the crime, but alleged that his companion had committed the actual killing. Id. Through his counsel, Brady admitted his guilt of the crime charged but asked that the jury return a verdict without capital punishment. Id. After his conviction had been affirmed, the petitioner discovered that the prosecution possessed an extrajudicial statement by his companion admitting to the actual homicide, which had not been disclosed to petitioner despite an affirmative request by his counsel for all of the companion s statements. Id. The petitioner was granted certiorari after the Maryland Court of Appeals, upon appeal for post-conviction relief, held that the suppression of the evidence by the prosecution deprived petitioner of his due process rights, but remanded the case for retrial on the question of punishment only. Id. at 85. The United States Supreme Court granted certiorari to decide whether petitioner was denied a federal right when the Court of Appeals restricted the new trial to the question of punishment. Id. Noting that our system of the administration of justice suffers when any accused is treated unfairly, the Court held that allowing the prosecutor to withhold evidence tending to exculpate a defendant would cast the prosecutor in the role of an architect of a proceeding that does not comport with the standards of justice, even though, as in the present case, his action is not the result of guile... Id. at 87-88. Because the suppressed statement would not have changed the finding with respect to the question of guilt or innocence, but would likely impact the penalty for the crime,

the Court affirmed the lower court s ruling and remanded the case for retrial on the issue of punishment. Id. at 90-91. b. Giglio v. United States The Court expanded the scope of Brady material in Giglio v. United States, 405 U.S. 150 (1972), in holding that prosecutors must disclose impeachment material related to the credibility of government witnesses under the standards of Brady. At 154. After his conviction for passing forged money orders, Giglio s counsel discovered that the prosecution had failed to disclose an alleged promise not to prosecute if the government s key witness testified. Id. at 150-51. The key witness was the sole witness linking petitioner to the crime, and although he was named as a coconspirator he was never indicted. Id. At trial, petitioner s counsel had unsuccessfully cross examined the coconspirator regarding any promises of leniency and the prosecutor affirmatively represented to the court that the coconspirator was not promised immunity in exchange for his testimony. Id. at 151-52. On petition for a new trial based on the newly discovered evidence, the government filed an affidavit confirming that a government attorney, who did not participate in the original trial, had made a promise of immunity to the coconspirator in exchange for his testimony before the grand jury and at trial. Id. at 152. The United States Supreme Court found that under the facts of the matter, a promise made by the assistant attorney must be attributed to the government and is therefore the responsibility of the prosecuting attorney to disclose under Brady. Id. at 154 ( The [coconspirator s] credibility as a witness was an important issue in the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know about it. ). c. United States v. Agurs For evidence to be material under Brady, a defendant must show that it is the type of evidence that might have affected the outcome of the trial. United States v. Agurs, 427 U.S. 97, 104 (1976). However, the government need not disclose evidence which is neutral, irrelevant, speculative, or inculpatory under Brady. Id. at 109-10 & n.16. In Agurs, the petitioner was convicted of second-degree murder in the stabbing death of a male companion in a motel room. Id. at 99. The decedent had checked into the motel wearing two knives and, shortly after this, motel employees responded to Agurs cries for help and found the decedent on top of Agurs struggling for possession of one of the decedent s knives. Id. Circumstantial evidence indicated that the struggle may have resulted after Agurs attempted to take $360 from the decedent. Id. After surrendering to the police the day after the incident, Agurs was found to have no physical injuries whereas the decedent suffered multiple defensive wounds and deep stab wounds to the abdomen. Id. at 100. At trial, the petitioner offered no evidence, but her counsel asserted that she had acted in selfdefense after the decedent attacked her with a knife. Counsel offered in support that: petitioner had screamed for help; decedent was on top of her when help arrived; and that the decedent was prone to violence as evidenced by his possession of two knives. Id. After conviction, petitioner sought a new trial on the basis that the decedent had a prior criminal record for assault and two charges of carrying a deadly weapon, and that the prosecution had failed to disclose this evidence despite the lack of a request by the defense. Id. at 100-01. The United States District Court for the District of

Columbia denied petitioner s motion finding that the evidence was not sufficiently material but rejecting the government s assertion that it had no duty to disclose unless requested by the defense. Id. at 101-02. On appeal, the decision was reversed and the United States Court of Appeals for the District of Columbia held that the prior criminal record constituted material evidence the nondisclosure of which required a new trial because it impacted on the question of guilt or innocence. Id. at 102. On review, the United States Supreme Court concluded that there is no significant difference between cases in which there has been merely a general request for exculpatory matter and cases, like the one we must now decide, in which there has been no request at all. Id. at 107. In again rejecting the sporting theory of justice standard of materiality as the Court had done in Brady, it held that the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of a defendant s right to a fair trial. Id. at 108. Thus the mere possibility that an undisclosed piece of evidence might have helped the defense or impacted the trial outcome does not rise to the level of materiality required under the Constitution. Id. at 109-10. Importantly, the nondisclosure of exculpatory or impeachment evidence must be viewed in light of the entire record. Id. at 112. Thus, in an open and shut case the nondisclosure of evidence will not likely result in a due process violation requiring a new trial. Id. at 113. Such was the petitioner s case and therefore the Court reversed the holding below and upheld the conviction. d. United States v. Bagley Bagley addressed the standard of materiality required under Brady and confirmed that the prosecution s constitutional disclosure requirements arise even when the accused has not specifically requested exculpatory or impeaching evidence. 473 U.S. 667, 682 (1985). The Court held that favorable 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. In other words, to satisfy the reasonable probability standard under Bagley there must be a probability sufficient to undermine confidence in the outcome. Id. The respondent was indicted on charges of violating federal narcotics and firearms statutes and prior to trial requested discovery regarding promises or inducements made to government witnesses in exchange for testimony. Id. at 669-70. The prosecution disclosed signed affidavits by the two principal government witnesses that stated that the affidavits were signed without threats or promises of reward. Id. at 670. After waiving his right to a jury trial, respondent was convicted of the narcotics charges, but found not guilty on the firearms charges. Id. at 670-71. Nearly three years after his conviction, respondent discovered new evidence demonstrating that the two principal government witnesses had been paid $300 for their participation in the undercover investigation and for their testimony. Id. at 671. Bagley moved to vacate his conviction under Brady, alleging that the promise of payment could have been used as evidence to impeach the government witnesses. Id. at 672. The United States District Court for the Western District of Washington denied the motion, finding that the witnesses had primarily testified on the firearms charges, of which Bagley was acquitted, and that their testimony on the narcotics charges tended to be favorable to respondent. Id. at 673. Therefore the District Court held that the suppressed evidence would not have impacted the outcome on the firearms charges. Id. at 673. On review the Ninth Circuit reversed, finding the disclosure failure prevented Bagley from effectively cross examining the government witnesses and thus had impaired respondent s right to confront adverse witnesses. Id. at 674. The Ninth Circuit

further analyzed the Brady violation as error and noted that the resulting conviction must be automatically reversed unless the error was found to be harmless beyond a reasonable doubt. Id. at 673. On this point, the Ninth Circuit disagreed with the lower court that the government witnesses testimony was exculpatory on the narcotics charges. Id. The United States Supreme Court reversed and remanded the case to the Ninth Circuit to determine whether there was a reasonable probability that the trial result would have differed if the contracts had been disclosed to the defense. Id. at 684. It held that the prosecution is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial Id. at 675. It went on to find that there was a significant likelihood that the nondisclosure of the contracts for payment may have induced the defense to believe that the government witnesses could not be impeached on the basis of bias or interest. Id. at 683. Importantly, the Court stated that the more specifically the defense requests certain evidence the more reasonable it is for the defense to assume from the nondisclosure that the evidence does not exist, and to make pretrial and trial decisions on the basis of this assumption. Id. at 682-83. This holding instructs defense practitioners to be as specific as possible in their request to obtain the original discovery sought and for the purposes of building a record if evidence is later found to have been withheld. e. Pennsylvania v. Ritchie Pennsylvania v. Ritchie held that the prosecution s Brady obligations continue throughout the proceedings, but confirmed the holding in Bagley that [a] defendant s right to discovery does not include the unsupervised authority to search through [government] files. 480 U.S. 39, 59-60 (1987); see also Weatherford v. Bursey, 429 U.S. 545, 559 (1977) ( There is no general constitutional right to discovery in a criminal case, and Brady did not create one ). Ritchie was convicted of rape, involuntary deviant sexual intercourse, incest and corruption of a minor resulting from assaults on his minor daughter. Id. at 45. Ritchie sought review after being denied access to statutorily protected confidential information contained in a file maintained by Children and Youth Services, which he alleged may have contained names of favorable witnesses or other exculpatory evidence. Id. at 43-44. The Pennsylvania Supreme Court vacated the conviction based on the Confrontation Clause of the Sixth Amendment and ordered the lower court to provide the defense with full access to the file on remand. Id. After granting certiorari, the United States Supreme Court affirmed in part and reversed in part. Id. at 61. It held that Ritchie was entitled to know whether the file contained exculpatory information that could have impacted the trial outcome, but was not entitled to have his counsel review the file in light of the confidentiality interests served by the state agency s policy. Id. The case was remanded for in camera review by the trial court to determine the existence of exculpatory material. Id. f. Kyles v. Whitley In Kyles v. Whitley, the Court held that the government has an affirmative duty to search for, learn of and disclose Brady material in the possession of the prosecution team, which includes prosecutors, police and persons and agencies working on behalf of the government. 514 U.S. 419, 437-38 (1995). Although a defendant must show that the materially favorable evidence was in the possession of the prosecution team, the defendant need not show that an acquittal would have

necessarily resulted with the disclosure of the withheld evidence. Id. at 434. Significantly, the materiality of the suppressed evidence must be considered collectively, rather than item by item. Id. at 435-36 ( One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing 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. ). Kyles was convicted of first degree murder and sentenced to the death penalty by a Louisiana state court. Id. at 421. After a lengthy appellate process, the United States Supreme Court granted certiorari of petitioner s federal habeas claim based on newly discovered undisclosed Brady evidence and reversed the holding of the Fifth Circuit and remanded for further proceedings. Id. at 455. The Court found that the withheld exculpatory evidence raised a reasonable probability that its disclosure would have resulted in a different trial outcome. Id. at 441-54. The suppressed evidence comprised several contradictory statements given by key trial witnesses and a list of cars present at the crime scene. Id. The Court held that had this evidence been disclosed, the prosecution s case would have been significantly weaker and would have undermined the value of the prosecutions two key eyewitnesses. Id. Considering the materiality of the suppressed evidence in light of the totality of evidence in the case, the Court held that there was a reasonable probability the finding of guilt or innocence would be impacted by the evidence s disclosure. Id. at 554. g. Wood v. Bartholomew Under Wood v. Bartholomew, the Court held that the prosecution s failure to disclose inadmissible information does not amount to a Brady violation where there is only mere speculation about whether its disclosure would have led to admissible evidence. 516 U.S. 1, 6 (1995). Bartholomew was convicted of felony murder after admitting at trial that he had committed the robbery, but alleging that the victim was accidentally killed during the commission of the robbery. Id. at 3. Bartholomew filed a federal habeas petition alleging a Brady violation after discovering that the two principal government witnesses had taken polygraph tests, which were inadmissible at trial and not disclosed, and that the test of one witness indicated deception. Id. at 4-5. The District Court denied the writ finding that Bartholomew had failed to show that evidence was withheld because of the inadmissibility of the polygraphs, and had failed to show the there was a reasonable likelihood that the disclosure of the inadmissible information would have affected the trial outcome. Id. at 5. The Ninth Circuit reversed, holding that the polygraph information was material and could have led to admissible evidence that may have been used in cross examination. Id. The United States Supreme Court reversed, relying in part on the testimony of defense counsel from the habeas proceeding in which counsel admitted that the disclosure of the tests would not have affected the scope of his cross examination. Id. at 7. The Court held that it was not reasonably likely under the Kyles standard that the disclosure of the inadmissible polygraph tests would have impacted the trial result where the admissible evidence against Bartholomew was overwhelming. Id. at 8. However, it is important to point out that the federal circuits are split on whether a Brady violation occurs when the nondisclosure of inadmissible evidence would directly lead to admissible evidence. 4 4 See The Georgetown Law Journal, Annual Review of Criminal Procedure, 38 Geo. L.J. Ann. Rev. Crim. Proc. n.1104 (2009) ( Compare Ellsworth v. Warden, N.H. State Prison, 333 F.3d 1, 5 (1st Cir. 2003) (assuming without deciding that inadmissible evidence "could be so promising a lead to strong exculpatory evidence that there could be no justification for withholding it"), U.S. v. Gil, 297 F.3d 93, 104 (2d Cir. 2002) (memo of questionable admissibility must be disclosed

h. Strickler v. Greene In Strickler v. Greene, the Court articulated the three elements of a Brady violation: 1) the evidence at issue must be favorable to the accused because it is either exculpatory or impeaching of a government witness; 2) the evidence at issue must have been suppressed by the prosecution, whether willfully or inadvertently; and 3) the suppression of evidence must have resulted in prejudice to the accused. 527 U.S. 263, 281-82 (1999). Prejudice results only if the suppressed evidence is material. Id. at 289. The Strickler Court articulated the materiality standard required under Brady by holding that materiality will only exist if there is a reasonable probability that the verdict would have differed had the suppressed evidence been disclosed. Id. at 289. Petitioner s death sentence for capital murder and other crimes was affirmed by Virginia s highest court. Id. at 265-66. Petitioner s subsequent state habeas proceeding based on the failure of defense counsel to file a Brady motion was denied and affirmed by the reviewing court. Id. After filing a federal habeas petition, petitioner was granted access to exculpatory materials and the District Court vacated the murder conviction and death sentence on the grounds that the prosecution failed to disclose exculpatory information contained in police files that cast doubt on portions of a key witness testimony. Id. at 278-80. The Fourth Circuit reversed, holding that the defendant had procedurally defaulted on his Brady claim and finding the claim without merit due to lack of a showing of prejudice. Id. The United States Supreme Court affirmed the Fourth Circuit decision, but disagreed with the lower court s analysis of the prejudice standard. Id. at 296. Initially, the Court noted that under the cause and prejudice standard required to obtain habeas review, the petitioner had established cause for his failure to assert the Brady claim in the state proceedings because he had reasonably relied on the prosecution s representations and open file policy that no Brady material remained undisclosed. Id. at 289 & n.23 ( [I]f a prosecutor asserts that he complies with Brady through an open file policy, defense counsel may reasonably rely on that file to contain all matters the [government] is constitutionally obligated to disclose under Brady. ). However, on the issue of prejudice the Court explicitly rejected the Fourth Circuit s analysis in holding that [T]he materiality inquiry is not just a matter of determining whether, after discounting the inculpatory evidence in light of the undisclosed evidence, the remaining evidence is sufficient to support the jury s conclusions. Rather, the question is whether the favorable evidence could reasonably be taken to put the whole case is such a different light as to undermine confidence in the verdict. Id. at 289-90 (quoting Kyles, 514 U.S. at 434-35). After finding that the petitioner had satisfied the first two elements of a Brady violation in spite of the prosecutor s open file policy, the Court nevertheless held that the petitioner had failed to if it "could lead to admissible evidence"), Bradley v. Nagle, 212 F.3d 559, 567 (11th Cir. 2000) (inadmissible information received by police indicating people other than defendant committed murder in question must be disclosed if it "would have led the defense to some admissible material exculpatory evidence), with Hoke v. Netherland, 92 F.3d 1350, 1356 (4th Cir. 1996) (inadmissible evidence of rape and murder victim's previous sexual relations immaterial for Brady purposes) (citing Bartholomew, 516 U.S. at 6) ).

demonstrate that the outcome would have differed had the exculpatory material been disclosed and therefore neither prejudice under the habeas standard, nor a Brady violation, had resulted. Id. [U]nless [the suppressed documents] were material for Brady purposes, their suppression did not give rise to sufficient prejudice to overcome the procedural default. Id. at 282. i. United States v. Ruiz The Constitution does not require disclosure concerning impeachment information relating to any informants or other witnesses before entering into a binding plea agreement with a defendant. United State v. Ruiz, 536 U.S. 622, 625 (2002). After refusing to agree to a fast track plea offer in which Ruiz would have waived her right to receive impeachment information and information supporting any affirmative defenses at trial, Ruiz pleaded guilty and was convicted of unlawful drug possession. Id. at 625-26. At the sentencing phase, the government opposed Ruiz s motion for the two level downward departure that she would have received had she signed the plea offer. Id. It was unclear whether or not there was any material impeachment information in the possession of the prosecution. The United States District Court for the Southern District of California denied Ruiz s motion for the two level departure, and Ruiz appealed alleging inter alia that a defendant cannot waive their right to receive Brady material as part of a plea agreement. Id. at 626. The Ninth Circuit vacated the lower court s guideline sentencing determination, holding that Brady disclosure obligations require impeachment information to be disclosed prior to entering into a plea agreement, that the Constitution prevents defendants from waiving their right to this impeachment information, and that the prosecution s fast track agreement insisting upon this waiver was unlawful. Id. On the government s certiorari petition, the Court reversed holding that the Constitution, in respect to a defendant s awareness of relevant circumstances, does not require complete knowledge of the relevant circumstances, but permits a court to accept a guilty plea, with its accompanying waiver of various constitutional rights, despite various forms of misapprehension under which a defendant might labor. Id. at 630. In finding that impeachment information relates to the fairness of trial rather than the voluntary nature of a plea, the Court held that the added burden of requiring the government to reveal Brady impeachment evidence well in advance of trial would unduly interfere with the plea bargaining process. Id. at 633. In its decision, the Court only settled the narrow issue of the disclosure required under Brady in the plea agreement context with respect to impeachment material. It did not decide the issue of whether the prosecution must disclose material exculpatory evidence before entering into a guilty plea with a defendant and federal circuits are split with respect to this issue. 5 5 See The Georgetown Law Journal, Annual Review of Criminal Procedure, 38 Geo. L.J. Ann. Rev. Crim. Proc. n.1101 (2009) ( Compare Orman v. Cain, 228 F.3d 616, 620 (5th Cir. 2000) (absent clear rule by Supreme Court, state courts may decline extending Brady obligation to guilty pleas because rule is intended to protect integrity of trials), with U.S. v. Avellino, 136 F.3d 249, 255-58 (2d Cir. 1998) (knowing and voluntary guilty plea subject to challenge if Brady violation occurs; government's obligation to disclose Brady material is pertinent to determination of whether or not to plead guilty), McCann v. Mangialardi, 337 F.3d 782, 788 (7th Cir. 2003) (voluntariness of guilty plea can be challenged on Brady grounds if government withholds evidence of factual innocence), White v. U.S., 858 F.2d 416, 422 (8th Cir. 1988) (voluntariness of guilty plea can be challenged on Brady grounds), U.S. v. Nagra, 147 F.3d 875, 881-82 (9th Cir. 1998) (applying Brady analysis but finding no Brady violation despite government's nondisclosure of false statements made by government agents to defendant before pleading guilty because no proof that but for this information defendant would have gone to trial), and U.S. v. Wright, 43 F.3d 491, 496 (10th Cir. 1994) (under limited circumstances, Brady violation can render defendant's guilty plea involuntary) ).

III. Conclusion In the Supreme Court s most recent Brady decision, the Court summed up the Brady doctrinal law outlined above: 1) A Brady violation occurs when the government fails to disclose materially favorable evidence irrespective of good faith or bad faith on the part of the government; 2) Brady evidence includes both impeachment and exculpatory information; 3) The prosecution s disclosure duties extend to evidence that is known only to other government agents involved in the investigations; 4) Evidence is only material if there is a reasonable probability that the outcome of the proceeding would have been different if the evidence had been disclosed; and 5) Reversal of a conviction requires a showing that the materially favorable evidence evaluated in light of the totality of evidence is of such a nature as to undermine confidence in the verdict. Youngblood v. West Virginia, 547 U.S. 867, 869-70 (2006). Although the United States Supreme Court had not decided every issue with respect to Brady disclosures, it is important to note that federal courts have failed to find a Brady violation when the suppressed evidence is found to have been readily available to the defense from sources other than the government. For example, in United States v. Pelullo the Third Circuit held that there was no Brady violation where materially favorable evidence is equally available to the defense. 399 F.3d 197, 215-16 (3d Cir. 2005) ( Brady does not compel the government to furnish a defendant with information which he already has or, with any reasonable diligence, he can obtain himself. (citation omitted)). The Third Circuit further held that defense knowledge of, or access to, purportedly exculpatory material is potentially fatal to a Brady claim, even where there might be some showing of governmental impropriety. Id. at 215. The holding of the Third Circuit, among others, instructs defense practitioners to be aware of the types of information available to them and to diligently pursue obtaining evidence within their scope of control. Furthermore, several circuits have held that the government has a duty to disclose Brady material in time for its effective use at trial. Although the late disclosure of Brady materials by the government will not necessarily give rise to a violation, practitioners should be aware of raising Brady issues when material exculpatory or impeachment evidence is disclosed on the eve of or during trial when the defendant can demonstrate a reasonable probability that the late disclosure would affect the trial outcome. Delayed disclosure may be grounds for reversal, but only if the defendant can show prejudice, e.g., the material came so late that it could not be effectively used. United States v. Bueno-Sierra, 99 F.3d 375, 379 (11 th Cir. 1196) (per curiam) (citing United States v. Beale, 921 F.2d 1412, 1426 (11th Cir.), cert. denied, 502 U.S. 829, 112 S. Ct. 100, 116 L. Ed. 2d 71 (1991) (finding no violation of Brady obligations for late disclosure of impeachment material because defense was afforded a recess and additional opportunity for cross examination)). The Fifth Circuit addressed the issue of late disclosure in United States v. Fisher holding that the government had violated its Brady obligations by failing to disclose material impeachment evidence until the final day of trial. 106 F.3d 622, 625 (5th Cir. 1997). The court found that the timing of the disclosure prevented the defense from making meaningful use of the impeachment information in its

trial strategy and held that the Brady violation constituted error which should have resulted in a new trial for the accused. Id. at 635. While it is important to understand the prosecution s constitutional duties under Brady, it is not enough to rely on the government to furnish materially favorable exculpatory or impeachment materials. By arming ourselves with the knowledge necessary to identify potential Brady violations before they occur we may better serve the interests of our clients by assuring their right to a fair trial process. 2010 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is proprietary and the property of Barnes & Thornburg LLP. It may not be reproduced, in any form, without the express written consent of Barnes & Thornburg. This Barnes & Thornburg LLP publication should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.