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Brady v. Maryland Outline, Special Litigation, Public Defender Service for DC, 2012

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Brady v. Maryland Outline
Prepared by the Special Litigation Division, Revised January 2012

Table of Contents
Introduction ......................................................................................................................................4
I. The Basic Rule.............................................................................................................................6
II. What Is “Favorable” Information? ..............................................................................................7
A. Anything that Assists Defense Counsel ...............................................................................7
B. Includes Exculpatory AND Impeaching Information ..........................................................7
C. Applies to Pretrial Suppression/Admissibility of Evidence ................................................9
D. Includes Information that Is Not Itself Admissible............................................................10
E. Examples: What You Should Ask For and Receive ..........................................................11
III. Where Must the Prosecutor Look? ..........................................................................................20
A. Prosecutor’s Duty to Learn ................................................................................................20
B. The “Prosecution Team” ....................................................................................................21
C. Examples: Documents the Prosecutor Must Examine .......................................................24
IV. How Must Prosecutors Assess Materiality Pretrial? ...............................................................25
A. Pretrial Is Different ............................................................................................................26
B. All “Arguably Material” Favorable Information ...............................................................27
C. Trial Courts Have the Power to Help .................................................................................29
D. What the Defense Can do to Establish Materiality Pretrial ...............................................31
V. When Must the Prosecution Disclose Brady Information? .......................................................35
A. “Timely” for Meaningful Use. ...........................................................................................35
B. Early in a Case—Within Weeks of Arraignment ...............................................................37
C. Seek a Brady Scheduling Order .........................................................................................40
D. Prosecution Cannot Wait Until Eve of Trial ......................................................................41
E. Make a Record or Prejudice ...............................................................................................43
F. Prosecution’s Obligation Extends Beyond Trial ...............................................................43
VI. In What Form Must the Prosecution Make Brady Disclosures? .............................................44
A. Form Is Critical ..................................................................................................................44
B. “Sufficiently Specific and Complete” for Effective Use. ..................................................45
C. Information in its Original Format .....................................................................................47
D. Names and Contact Information of Witnesses...................................................................47

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VII. Pretrial Orders, Remedies, and Admission by Conduct .........................................................51
A. Pretrial Orders ....................................................................................................................51
B. Remedies ............................................................................................................................58
C. A New Line of Defense – Admission by Conduct ............................................................62
VIII. Significant Cases ...................................................................................................................63
A. Pre-Brady Supreme Court Cases .......................................................................................63
B. Brady and its Supreme Court progeny ...............................................................................65
C. Significant D.C. Court of Appeals Brady cases .................................................................73

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Introduction
This outline discusses in some detail what the prosecution’s pretrial obligations are under
Brady v. Maryland, 373 U.S. 87 (1963), and how a trial attorney litigating in Superior Court for
the District of Columbia may advocate to hold the government to those obligations.
The outline is meant to serve both as a quick reference guide when trial lawyers are
confronted with Brady issues in court and as the starting point for any correspondence or
pleading addressing the government’s Brady obligations. However, since Brady issues can be so
fact-specific (and there is seemingly no shortage of Brady opinions, old and new), doing casespecific research is always important.
The outline relies on a variety of authorities:






Binding authority from the Supreme Court and the D.C. Court of Appeals;
Persuasive authority from federal courts around the country;
The government’s own policy documents, specifically,
○ The “Policy Regarding Disclosure of Exculpatory and Impeachment
Information” in the United States Attorney’s Manual (hereinafter “USAM”)
available at
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/5mcrm.htm
#9-5.001), and
○ The 2010 memo “Guidance for Prosecutors Regarding Criminal Discovery”
issued by then Deputy Attorney General David Ogden in the wake of the Ted
Steven’s scandal (hereinafter “DAG Guidance Memo”), now codified at
Section 165 of the United States Attorney’s Criminal Resource Manual and
available at
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00165.
htm.
(NOTE: PDS is unaware of any similar policy documents from the OAG).
Local rules/standing orders from other federal courts around the country, in
particular Massachusetts (borne of its long-standing troubles with Brady
violations).

The first category of authority will obviously be the most persuasive to a Superior Court
judge, and should always be the starting point of any argument.
Persuasive authority is valuable too, if only to remind D.C. judges that prosecutors from
other jurisdictions – in particular Assistant United States Attorneys – are held to more stringent
standards elsewhere and, as a consequence, behave differently vis-à-vis Brady.
Lastly, although the AUSAs will not hesitate to inform judges that their internal Brady
policies create no enforceable rights for defendants, these policies are important because they
contain a “constructive and objective description of a prosecutor’s responsibilities pursuant to
Brady” that memorializes “the government’s own stated sense of fairness vis-a-vis criminal
defendants.” Miller v. United States, 14 A.3d 1094, 1109 (D.C. 2011). Defense counsel should

4

be prepared (1) to remind government counsel about their obligations under these policies, (2) to
call on the government to explain why it cannot or will not comply with its own policies –
policies which were drafted to reassure the courts and the public that the government takes its
Brady obligations seriously, and (3) urge trial courts that any display of ignorance of or disregard
for these policies by government counsel simply reinforces the need for courts to act to regulate
the government’s Brady disclosures.

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I.

THE BASIC RULE

In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held that “the
suppression by the prosecution of evidence favorable to an accused…violates due process where
the evidence is material either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.”
Today, Brady and its progeny impose on the prosecution a “duty to learn of”1 and
disclose to the defense all “favorable,”2 “material”3 information4 “known to the others acting on
the government’s behalf in the case, including the police,”5 a group commonly referred to as “the
prosecution team.”6 The prosecution must disclose this information “at such a time” and in such
a manner “as to allow the defense to use the favorable material effectively”7 – which, as a
practical matter, means well before trial if not at the outset of the case, because “the due process
obligation under Brady to disclose exculpatory information is for the purpose of allowing
defense counsel an opportunity to investigate the facts of the case and, with the help of the
defendant, craft an appropriate defense.”8
Each of these requirements – what is favorable information, where must the prosecution
look for it, how must materiality be assessed, when must it be disclosed, and in what format –
has been analyzed by courts and is discussed in further detail below. But in litigating Brady
claims, the defense should never lose sight of the fact that Brady is the furthest thing from a
technicality. It is a “rule of fairness.”9 The motivating force behind the Court’s decision in
Brady was the belief that “[s]ociety wins not only when the guilty are convicted but when
criminal trials are fair; our system of the administration of justice suffers when any accused is
treated unfairly.”10 The Court affirmed that a prosecutor should not be the “architect of a
proceeding that does not comport with standards of justice.”11
1

Kyles v. Whitley, 514 U.S. 419, 437 (1995), see also III infra.

2

Brady, 373 U.S. at 87; see also II infra.

3

Brady, 373 U.S. at 87; see also IV infra.

4

See II.D & III.B.3 infra (explaining that the prosecution has an obligation to disclose favorable
information whether or not it has been documented and whether or not it is itself admissible if it
may lead to admissible evidence).
5

Kyles, 514 U.S. at 437; see also III.B.2 infra.

6

See, e.g., DAG Guidance Memo, Step 1.A.

7

Lindsey v. United States, 911 A.2d 824, 838 (D.C. 2006) (internal quotation and citation
omitted).
8

Perez v. United States, 968 A.2d 39, 66 (D.C. 2009).

9

Curry v. United States, 658 A.2d 193, 197 (D.C. 1995) (internal quotations and citations
omitted).
10

11

Brady, 373 U.S. at 87.
Id. at 88.

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“By requiring the prosecutor to assist the defense in making its case, the Brady rule
represents a limited departure from a pure adversary model.”12 This is because “the prosecutor’s
role transcends that of an adversary: he ‘is the representative not of an ordinary party to a
controversy, but of a sovereignty . . . whose interest . . . in a criminal prosecution is not that it
shall win a case, but that justice shall be done.’”13 When litigating Brady claims, the defense
should examine whether the prosecution is acting consistently with its obligation “to assist the
defense in making its case” or whether it is acting strategically – e.g., to limit the scope of
disclosure or delay the timing – which is antithetical to its duty to “transcend” its role as “an
adversary.”14
WHAT CONSTITUTES FAVORABLE INFORMATION?

II.

A. Favorable information is any information that the defense can use to assist its defense
either offensively or defensively:
1.

Favorable information is any information that might help the defense attack the
government’s case or mount an affirmative defense: In determining what must be
disclosed under Brady “the [prosecution’s] guiding principle must be that the critical task
of evaluating the usefulness and exculpatory value of the information is a matter
primarily for defense counsel, who has a different perspective and interest from that of
the police or prosecutor.” Miller, 14 A.3d at 1110 (D.C. 2011) (quoting Zanders v.
United States, 999 A.2d 149, 163-64 (D.C. 2010) (emphasis added).

2.

Certain categories of information are listed below, see II.D. infra, but ultimately what is
favorable to the defense in a case will be fact-specific.

3.

Thus, defense counsel should be prepared to explain (ex parte when appropriate) why
certain types of information might be favorable in light of the government’s apparent
theory and the defendant’s defense.

B. Favorable information encompasses “Exculpatory” and “Impeaching” Information:

12

United States v. Bagley, 473 U.S. 667, 675 n.6 (1985).

13

Id. (quoting Berger v. United States, 295 U.S. 78, 88 (1935)); Miller, 14 A.3d at 1107 (“the
constitutional command of Brady unambiguously prescribes the prosecutor’s priorities: The
prosecutor’s obligation is to seek justice before victory”) (internal quotation and citation
omitted).
14

Bagley, 473 U.S. at 675 n.6; see also Breakiron v. Horn, 642 F.3d 126, 133 (3d Cir. 2011)
(expressing dismay that “prosecutors, so long after Brady became law, still play games with
justice and commit constitutional violations by secreting and/or withholding exculpatory
evidence from the defense”).

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1.

The Court in Brady simply spoke of the duty to disclose information “favorable” to the
defense. 373 U.S. at 87.

2.

Subsequent decisions have referred to the duty to disclose exculpatory and impeaching
information. See, e.g., Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Perez v. United
States, 968 A.2d 39, 65 (D.C. 2009) (citing Strickler).
a. “Exculpatory” information is information “of a[ny] kind that would suggest to
any prosecutor that the defense would want to know about it.” Miller, 14 A.3d at
1110 (internal quotation and citation omitted) (endorsing this “eminently sensible
standard”). It typically refers to information that, in itself, tends to reduce the
likelihood of guilt or bears favorably on culpability or some other component of
punishment. Under Brady, the defense is entitled, for example, to any mitigating
information. Indeed, Brady itself addressed the failure to disclose to the defense the
co-defendant’s confession that he actually strangled the victim (although he said it
was Brady’s idea). Brief of Respondent, 1963 WL 105617 *4.
b. “Impeachment” information typically refers to information that tends negatively
to impact the credibility or reliability of a Government witness. Impeaching
information may be case-related (e.g., inconsistent statements about the same incident
– which also may be exculpatory) or witness specific (e.g., evidence of past
dishonesty).
3. Exculpatory and Impeaching information are not strictly distinct categories. Lewis v.
United States, 408 A.2d 303, 307 (D.C. 1979) (accepting “the premise that ‘impeaching
evidence’ is exculpatory.”)
a. Indeed there is often little conceptual distinction between the two: evidence that casts
a doubt on the reliability of evidence against a defendant may be exculpatory in that it
undermines the prosecution’s case. In other words, impeaching information may be a
substantive reason to doubt whether the Government has sufficiently proven
defendant’s guilt. See Bagley, 473 U.S. at 676 (“The jury’s estimate of the
truthfulness and reliability of a given witness may well be determinative of guilt or
innocence, and it is upon such subtle factors as the possible interest of the witness in
testifying falsely that a defendant’s life or liberty may depend.”) (internal quotation
and citation omitted); Lindsey v. United States, 911 A.2d 824, 838 (D.C. 2006)
(same).
b. Ultimately the distinction is immaterial: A prosecutor’s duty to disclose
impeaching information is the same as his/her duty to disclose exculpatory
information.
c. Nevertheless, the DC USAO has a history of trying to distinguish between the two,
particularly vis-à-vis timing of disclosure, and the defense must be prepared to
combat the impression that impeaching information is somehow constitutionally less
important (e.g., “Brady with a little b”).

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1) Supreme Court case law is clear that the full force of a prosecution’s disclosure
obligations under Brady applies to both types of information. Strickler, 527 U.S.
at 281-82. Indeed, the Supreme Court has generally “disavowed any difference
between exculpatory and impeachment evidence for Brady purposes.” 15 Kyles,
514 U.S. at 433. (In Bagley, the Court rejected an argument that the failure to
disclose impeaching information was more egregious because it impinged both on
a defendant’s right to due process and his right to confrontation, and held that the
same standard of review applied to the failure to disclose exculpatory and
impeaching information. 473 U.S. at 676-78.)
2) For its part, the Court of Appeals has not only reaffirmed that “[t]here is, of
course, no difference between exculpatory and impeachment evidence when it
comes to the prosecutor’s duty to disclose evidence favorable to the accused,”
Moore v. United States, 846 A.2d 302, 305 n. 4 (D.C. 2004) (internal quotations
and citations omitted), it specifically held in Sykes v. United States that the
government could not justify delaying disclosure of information that was both
exculpatory and impeaching simply by characterizing it as the latter: “[U]nder
our precedents, . . . the [withheld] grand jury testimony . . . should have been
disclosed to the defense at an earlier point in time, whether it was considered to be
potentially exculpatory information or favorable impeaching evidence.” 897 A.2d
769, 778 (D.C. 2006).

C. Favorable information may relate to pretrial litigation of suppression of the
government’s evidence or the admission of defense evidence:

1.

Brady encompasses information relevant to the admissibility of evidence, including any
information relevant to evidentiary questions or important pretrial constitutional motions,
such as motions to suppress.
a. Gaither v. United States, 759 A.2d 662 (D.C. 2000), mandate recalled and opinion
amended by, 816 A.2d 791 (D.C. 2003) (remanding for an evidentiary hearing, inter
alia, to determine if Brady information had been withheld regarding suggestive
procedures used in the identification process); Smith v. United States, 666 A.2d 1216,
1224-25 (D.C. 1995) (witness statement should have been disclosed under Brady
because it called into question whether prosecution’s evidence could be admitted as a
“spontaneous utterance”); James v. United States, 580 A.2d 636 (D.C. 1990) (same);

15

The only exception is United States v. Ruiz, 536 U.S. 622 (2002), in which the Court held that
the government could legitimately require a defendant to waive her right to impeaching
information or information supporting an affirmative defense prior to entering into a preindictment, fast-track plea agreement. The foundation for the Court’s ruling was its
determination that Brady is “part of [the Constitution’s] basic ‘fair trial’ guarantee.” Id. at 628.
Ruiz should be interpreted to have limited import, bounded by its facts. Where a case has
progressed beyond the very preliminary stages and there is every indication that a case is going
to trial – i.e., defendant has been indicted and defense counsel has made Brady requests – Ruiz
should have no application. For further discussion of Ruiz, see VIII.B. infra.

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b. See also United States v. Gamez-Orduno, 235 F.3d 453, 461 (9th Cir. 2000) (Brady
violated in pretrial context by suppression of report that would have demonstrated
that defendants had Fourth Amendment standing to challenge search); Nuckols v.
Gibson, 233 F.3d 1261, 1266-67 (10th Cir. 2000) (Brady violation when government
failed to disclose allegations of theft and sleeping on the job of police officer whose
testimony was crucial to the issue of whether a Miranda violation had occurred—and
thus, crucial to the admissibility of the confession); Smith v. Black, 904 F.2d 950,
965-66 (5th Cir. 1990) (nondisclosure of Brady information may have affected fact
finder’s findings at the suppression hearing).
The government’s policy acknowledges this. USAM § 9-5.001.C.2 (requiring disclosure
of information that “might have a significant bearing on the admissibility of prosecution
evidence”).

2.

D. Brady encompasses ALL favorable information whether or not it is admissible at trial
or even previously documented:
1. Although Brady itself uses the term “evidence,” the Brady doctrine encompasses any
information, directly admissible or not, that would be favorable to the accused in
preparing her defense, including information useful to preparation or investigation that
may lead to admissible evidence or have some meaningful impact on defense strategy.
See Wood v. Bartholomew, 516 U.S. 1 (1995) (polygraph results showing possible
deception not Brady because they were inadmissible and because they would not have
affected defense counsel’s strategy or preparation).
a. This is implicit in D.C. case law holding that Brady information is to be used in the
defense investigation or preparation of its case – at time when admissibility is not the
immediate or primary concern: Miller, 14 A.3d at 1108 (“An important purpose of
the prosecutor’s obligations under Brady is to ‘allow[ ] defense counsel an
opportunity to investigate the facts of the case and, with the help of the defendant,
craft an appropriate defense) (citation omitted); Sykes, 897 A.2d at 777, 781 (noting
the importance of using the information in preparation of a case and highlighting that
earlier disclosure would have enabled defendant to conduct additional pretrial
investigation); see also Leka v. Portuondo, 257 F.3d 89, 101-02 (2d. Cir. 2001)
(discussing the need to use favorable information for “full exploration and
exploitation” and that Brady must consider the impact of new information on
“existing strategies and preparation”).
b. Federal cases explicitly acknowledge that Brady information need not be admissible
to trigger the prosecution’s disclosure obligation. See, e.g., Ellsworth v. Warden, 333
F.3d 1 (1st Cir. 2003) (prosecution withheld double-hearsay note that complainant
had made false allegations in the past and, even though inadmissible, it might have
led to admissible evidence); United States v. Gil, 297 F.3d 93, 104 (2d Cir. 2002)
(Brady information includes competent evidence, material that could lead to
competent evidence, or any information that “would be an effective tool in
disciplining witnesses during cross-examination by refreshment of recollection or
otherwise.”); United States v. Bowie, 198 F.3d 905, 909 (D.C. Cir. 1999) (“[T]o

10

refute Bowie’s contention that the undisclosed information was ‘material’ in the
Brady sense, it is not enough to show that the [suppressed information] would be
inadmissible.”); see also Coleman v. Calderon, 150 F.3d 1105, 1116-17 (9th Cir.
1998); Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999); Felder v. Johnson, 180
F.3d 206, 212 (5th Cir. 1999).
c. The government’s own policy requires prosecutors to disclose favorable, material
information regardless of admissibility, although the government takes the position
that this policy obligation exceeds the constitutional disclosure obligations imposed
by Brady. USAM § 9-5.001.C.
2. Relatedly, the mandate of Brady is not limited to requiring the production of certain preexisting documents (like Rule 16), but see VI infra (discussing the form in which Brady
disclosures should be made in order to be effectively used by the defense).
a. Brady “is not a discovery rule but a rule of fairness and minimum prosecutorial
obligation. . . . [that] is necessary to ensure the effective administration of the
criminal justice system.” Curry v. United States, 658 A.2d 193, 197 (D.C. 1995)
(internal quotations and citations omitted).
b. Thus, Brady requires the prosecution to disclose certain favorable information, even
if that information has not previously been recorded and has only been communicated
orally to a member of the prosecution team. See DAG Guidance Memo Step 1.B.5
(acknowledging that “the format of the information does not determine whether it is
discoverable”; the government must search for favorable information in “factual
reports” “factual discussions” or “factual information obtained during interviews”;
and “information that the prosecutor receives during a conversation with an agent or a
witness is no less discoverable than if that same information were contained in an
email.”)

E. Examples of favorable information – what the defense should ask for and what it is
entitled to receive:
NOTE: The law is now clear that the prosecution has a nondelegable duty to disclose Brady
information in the possession of the prosecution team, and the defense has no obligation to
make specific Brady requests. See Strickler, 527 U.S. at 281-82 (setting forth the elements of
a Brady claim – no requirement that the defense make a request); Bagley, 473 U.S. at 668
(rejecting a different standard of review for Brady claims based on whether defendant made a
specific Brady request); see also Miller, 14 A.3d at 1107 (Brady is a “rule of fairness and
minimum prosecutorial obligation”) (quoting Curry, 658 A.2d at 197; emphasis added).
Nevertheless, in order to ensure a defendant obtains the Brady information that he is due, or
at the very least, to preserve and substantiate a Brady claim on appeal, defense counsel will
always want to make written Brady requests tailored to the specific facts of the defendant’s
case.

11



Such requests focus the prosecution on the categories of favorable information the
defense is seeking and thereby reduce the possibility that the prosecution will
overlook this information,



In addition, making such requests will only benefit the defense in pretrial materiality
assessments – the fact that the defense asked for a specific type of information
demonstrates that the defense considers such information important – and may hasten
the timing of disclosure. See IV infra.



Finally, the fact that the defense has made a specific request and received nothing
from the government can assist in demonstrating prejudice. Nondisclosure in the face
of explicit requests strikes courts as unfair. As the Supreme Court explained in
Bagley,
the more specifically the defense requests certain evidence, thus putting the
prosecutor on notice of its value, 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. . . . . [T]he
reviewing court may consider directly any adverse effect that the prosecutor's
failure to respond might have had on the preparation or presentation of the
defendant’s case.
473 U.S. at 682-83.

The following is a non-exhaustive list of sometimes overlapping categories of favorable
information the defense may want to ask for:
1.

Any information that tends to cast doubt on the defendant’s guilt with respect to
any essential element in any charged count. Brady, 373 U.S. at 87; USAM § 95.001.C.1 (requiring disclosure of “information that is inconsistent with any element of
any crime charged”); see also D. Mass. L. R. 116.2(A)(1).

2.

Any physical evidence, testing, or reports tending to make guilt less likely. See, e.g.,
Benn v. Lambert, 283 F.3d 1040, 1060 (9th Cir. 2002) (failure to disclose investigative
report that fire was not caused by an arson); Sawyer v. Hofbauer, 299 F.3d 605 (6th Cir.
2002) (testing withheld by prosecution demonstrated that semen stain in forced fellatio
case belonged to a person different than the defendant); Mitchell v. Gibson, 262 F.3d
1036, 1063-64 (10th Cir. 2001) (State actively withheld and misled about DNA testing by
different lab that completely contradicted forensic testimony of police examiner at trial);
United States ex rel. Smith v. Fairman, 769 F.2d 386, 391 (7th Cir. 1985) (withheld
ballistics results showing that alleged firearm was inoperable); Johnson v. State, 38
S.W.3d 52, 56-58 (Tenn. 2001) (withheld police report concluding that bullet came from
different direction than where defendant was standing); State v. Larimore, 17 S.W.3d 87
(Ark. 2000) (withheld original medical examiner opinion on time of death).

3.

Any information regarding the failure of any percipient witness to make a positive
identification of a defendant:

12

a. If the perpetrator is known to the witness, in any statement regarding the crime.
Shelton v. United States, 26 A.3d 216, 222 (D.C. 2011) (government violated Brady
when it failed to disclose that complainant, who knew defendant, initially stated he
was unable to identify the perpetrator); see also, e.g., Slutzker v. Johnson, 393 F.3d
373, 387 (3d Cir. 2004) (witness statement that man she saw talking to decedent
before the murder was not defendant was Brady information) .
b. If a stranger identification, in any identification procedure. Mackabee v. United
States, __ A.3d __, 2011 WL 4975109 *7 (D.C. 2011) (witness’s failure to identify
defendant in a photo array coupled with statement that the shooter “sort of look[ed]
like” the photographs of two other people in the photo array was exculpatory);
Jackson v. United States, 650 A.2d 659, 661 n.4 (D.C. 1994) (government “wisely
conceded” that failure to disclose witness’s inability to identify defendant coupled
with the witnesses description of the perpetrator that was inconsistent with defendant
“violated both the letter and spirit of Brady”); see also Boyette v. Lefevre, 246 F.3d
76, 85 (2d Cir. 2001) (the fact that complainant’s “description of her attacker did not
fit [defendant] and that she had not been able to identify [defendant] from photos”
constituted Brady information).
NOTE: At present, the law in D.C. is that a simple failure to identify – i.e., a witness
looks at photographs and does not choose defendant, without any other helpful facts – is
not exculpatory. Mackabee, 2011 WL 4975109 *7; Johnson v. United States, 544 A.2d
270, 275 (D.C. 1988); but see United States v. Jernigan, 492 F.3d 1050, 1056 (9th Cir.
2007) (noting fact that “victim teller in the October 11, 2000 robbery could not identify
the woman who robbed her from the photo spread containing Jernigan” was exculpatory);
United States v. Waagner, 104 Fed. Appx. 521, 525 (6th Cir. 2004) (“The outcome of the
unsuccessful pretrial identification constituted Brady material”); United States v. CollazoAponte, 216 F.3d 163, 189 (1st Cir. 2000) (witness’s failure to identify defendant in a
photo array was Brady information that should have been disclosed pretrial), judgment
vacated on other grounds, Collazo-Aponte v. United States, 532 U.S. 1036 (2001); D.
Mass L. R. 116.2(B)(1)(f) (requiring pre-trial disclosure of “[a] written description of the
failure of any percipient witness identified by name to make a positive identification of a
defendant, if any identification procedure has been held with such a witness with respect
to the crime at issue”). Thus counsel should be prepared to argue why a nonidentification
is significant based on the facts of defendant’s case. Assuming that a witness had an
adequate opportunity to view the perpetrator (a fair assumption if the police chose to
expend the effort to conduct an id procedure with the witness), the defense should argue
that a non-id of a defendant in an array is the equivalent of saying “that doesn’t look like
the perpetrator,” which surely would be Brady if the witness said this out loud. See II.E.4
infra.
4.

Any eyewitness’s description of the perpetrator which differs from the defendant’s
appearance. Kyles, 514 U.S. at 441-44 (Brady violated when prosecution failed to
disclose eyewitness descriptions of perpetrator that were not consistent with defendant);
Mackabee, 2011 WL 4975109 at *3 & n.11 (observing that Court was “at a loss to
understand th[e] reasoning” of the prosecution that videotaped statement of witness who
gave police “a physical description [of the shooter] that could not match Mr. Mackabee”

13

“was not the kind of exculpatory information that we would immediately go around and
turn over”); id. at *5 (acknowledging inconsistent description “was exculpatory”); Miller,
14 A.3d at 1109 (“There can be no doubt – and all members of the court agree – that the
government had an obligation under Brady to disclose” information that shooter was left
handed); Curry, 658 A.2d at 195, 197 (government conceded error when it failed to
disclose until two days prior to trial statements of eyewitness whose description of the
perpetrator was inconsistent with defendant); see also White v. Helling, 194 F.3d 937 (8th
Cir. 1999) (Brady violation when prosecutor failed to disclose that witness had initially
identified another person as performing key actions during the robbery); McDowell v.
Dixon, 858 F.2d 945, 949 (4th Cir. 1988) (Brady violated by failure to disclose that initial
witness statement had indicated perpetrator was a different race than defendant).
5.

An eyewitness’ initial inability to provide a description of the perpetrator.16 Shelton,
26 A.3d at 222-23 (government had an obligation to disclose pretrial that complainant,
who positively identified defendant as the shooter at trial, initially told police “I don’t
know or I didn’t see or all’s I saw was a dark colored, someone shoot at me from a darkcolored car”); Lindsey v. King, 769 F.2d 1034, 1040 (5th Cir. 1985) (forceful
condemnation of prosecutor’s conduct, which was “beyond reprehension” for failing to
disclose police report taken “eight days after the murder that [witness] did not see the
assailant's face, that he saw only his silhouette, and that because of this circumstance
viewing photographs would be useless,” where witness testified at trial that “he did see
Lindsey’s face” and that he was sure on the night of the murder that he could identify the
shooter).

6.

Any information that links someone other than the defendant to the crime. Miller,
14 A.3d at 1109, 1112 (“There can be no doubt – and all members of the court agree –
that the government had an obligation under Brady to disclose” information that shooter
was left handed in case where defense sought to show that government witness, who was
left handed, was the actual perpetrator); Jernigan, 492 F.3d at 1053 (Brady violation
where prosecution failed to “disclos[e] the existence of a phenotypically similar bank
robber who had been robbing banks in the same area after Jernigan’s incarceration”);
Trammell v. McKune, 485 F.3d 546, 551-52 (10th Cir. 2007) (Brady violation where
prosecution failed to disclose gas station receipts that supported defendant’s trial theory
linking another person to the crime); Jamison v. Collins, 291 F.3d 380, 389 (6th Cir.
2002) (Brady violated because prosecution failed to disclose “positive identification of
different suspects by an eyewitness to the crime”); DiLosa v. Cain, 279 F.3d 259, 265
(5th Cir. 2002) (prosecution withheld foreign hair samples and evidence of another
neighborhood break-in that supported defendant’s assertion that two men robbed his
house and killed his wife; this was particularly “unsettling” because the state had argued
that the prosecution theory had to be credited in the absence of any evidence of a break-in
– evidence it knew existed); Mendez v. Artuz, 303 F.3d 411, 412-13 (2d Cir. 2002)

16

At some point in the 2011-12 term, the Supreme Court will issue a decision in Smith v. Cain,
No. 10-8145, where the issue presented was whether the prosecutors failure to disclose a
witness’ initial inconsistent statements about his inability to identify the shooter and statements
by other witnesses casting doubt on this witness’ ability to make an identification violated Brady.

14

(prosecutors withheld evidence that contradicted their motive theory of the case and
established that someone else had a motive); Scott v. Mullin, 303 F.3d 1222 (10th Cir.
2002) (state withheld evidence that another person had confessed to the crime);
Clemmons v. Delo, 124 F.3d 944 (8th Cir. 1997) (state withheld internal prison
communication stating that another inmate had observed a different person commit the
stabbing); Banks v. Reynolds, 54 F.3d 1508 (10th Cir. 1995) (state failed to disclose the
evidence that suggested that two people previously arrested for the same murder had
committed the crime); Smith v. Secretary of New Mexico Department of Corrections, 50
F.3d 801 (10th Cir. 1995) (Failure to disclose information indicating that uncharged third
party had committed the offense); Miller v. Angliker, 848 F.2d 1312 (2d Cir. 1988) (state
withheld significant evidence of investigation into the guilt of another, which warranted
reversal even though petitioner had chosen, without that exculpatory information, to
plead not guilty by reason of insanity); Bowen v. Maynard, 799 F.2d 593, 612 (10th Cir.
Okla. 1986) (granting habeas relief because withheld evidence of a different suspect
created a “reasonable doubt” and “in the hands of the defense, it could have been used to
uncover other leads and defense theories and to discredit the police investigation of the
murders”); cf. Winfield v. United States, 676 A.2d 1, 4 (D.C. 1996) (evidence showing
reasonable possibility of a third party perpetrator is relevant and admissible at trial).
7.

Any information that tends to support an affirmative defense. Mahler v. Kaylo, 537
F.3d 494, 500-01 (5th Cir. 2008) (Brady violated where prosecution failed to disclose
witness statements that decedent and defendant were actively fighting when gun went
off); United States v. Spagnoulo, 960 F.2d 990 (11th Cir. 1992) (government withheld
psychiatric report demonstrating that defendant may have a disorder, which could have
made an insanity defense viable and otherwise changed defense strategy); Finley v.
Johnson, 243 F.3d 215 (5th Cir. 2001) (prosecution withheld fact that there had been a
restraining order placed against victim to protect his wife and child, which would have
supported defendant’s affirmative defense that he kidnapped victim in order to protect the
victim’s wife and child); United States v. Udechukwu, 11 F.3d 1101, 1105 (1st Cir. 1993)
(government withheld information that person defendant claimed coerced her was a
known, prominent drug-trafficker and government target); USAM § 9-5.001.C.1
(requiring disclosure of information “that establishes a recognized affirmative defense”).

8.

Any information that tends to cast doubt on the admissibility of the government’s
evidence. Gaither v. United States, 759 A.2d 655, 663 (D.C. 2003) (remanding because
motions court “ignored the Brady consequences” of allegations of use of suggestive
identification procedures by the police); mandate recalled and amended by 816 A.2d 791
(D.C. 2003) (again directing remand); Smith, 666 A.2d at 1224-25 (information that
could have undermined admission of statement as excited utterance “require[d] disclosure
under Brady”); James v. United States, 580 A.2d 636 (D.C. 1990) (same); USAM § 95.001.C.2 (requiring disclosure of information that “might have a significant bearing on
the admissibility of prosecution evidence”); see also D. MASS. L. R. 116.2(A)(2)
(requiring disclosure of any information that “tends to . . . [c]ast doubt on the
admissibility of evidence that the government anticipates offering in its case-in-chief”).

9.

Any information that tends to support the defendant’s pretrial constitutional
motions or tends to show that defendant’s constitutional rights were violated.

15

United States v. Gamez-Orduno, 235 F.3d 453, 461 (9th Cir. 2000) (Brady violated where
prosecution suppressed report that would have demonstrated that defendants had Fourth
Amendment standing to challenge search); Nuckols v. Gibson, 233 F.3d 1261 (10th Cir.
2000) (Brady violation when government failed to disclose allegations of theft and
sleeping on the job of police officer whose testimony was crucial to the issue of whether
a Miranda violation had occurred—and thus, crucial to the admissibility of the
confession).
10.

Any information that tends to diminish culpability and/or support lesser
punishment. Cone v. Bell, 129 S. Ct. 1769, 1783-86 (2009) (evidence that defendant
“was impaired by his use of drugs around the time his crimes were committed”
constituted Brady information; remand to assess its materiality as mitigation evidence in
sentencing); Brady, 373 U.S. at 87 (requiring disclosure of information that is “favorable
. . . and material . . . to . . . punishment”); United States v. Quinn, 537 F.Supp.2d 99
(D.D.C. 2008) (prosecution’s plea deal with another target was Brady information where
it showed sentencing disparity); see also D. MASS. L. R. 116.2(A)(4) (requiring
disclosure of any information that “tends to . . . [d]iminish the degree of the defendant’s
culpability”).

11.

Inconsistent statements by government witnesses regarding the facts of the crime or
the alleged conduct of the defendant. Kyles, 514 U.S. at 445 (Brady violated when
prosecution failed to disclose multiple inconsistent statements by key witness); see also
id. at 444 (“[T]he evolution over time of a given eyewitness’s description can be fatal to
his reliability”); United States v. Kohring, 637 F.3d 895, 906 (9th Cir. 2010) (reversing
conviction for extortion and bribery where prosecution suppressed, inter alia, notes “that
tend to show [prosecution witness] had difficulty remembering the details of key events,”
for example, the amounts of cash payments, or whether any payment was made at all on
certain occasions.); United States v. Quinn, 537 F.Supp.2d 99, 109 (D.D.C. 2008) (“the
government itself concedes that when it has information about a witness who it is
planning to call in its case in chief that indicates the witness has lied to the government
about material matters during the course of the investigation, that information is Brady
material.”); Black v. United States, 755 A.2d 1005 (D.C. 2000) (deceptive statements
about the offense made by key witness made during a voice stress analyzer lie detector
test constituted favorable Brady information; remand to determine if suppressed
statements were material); Smith v. United States, 666 A.2d 1216, 1224-25 (D.C. 1995)
(Brady violated where government suppressed inconsistent statement by key witness: his
admission that his initial claim that robber had stuck a gun in his face was false); DAG
Guidance Memo Step 1.B.7 (requiring review for potential disclosure of “[p]rior
inconsistent statements” and “[s]tatements or reports reflecting witness statement
variations”); id. at Step 1.B.8 (clarifying that “witness interviews should be
memorialized,” and that “agent and prosecutor notes” should be reviewed); see also D.
Mass L. R. 116.2(B)(2)(b) (requiring disclosure of “[a]ny inconsistent statement . . .
made orally or in writing by any witness whom the government anticipates calling in its
case-in-chief”).

12.

Statements by others that are inconsistent with statements of government witnesses
regarding the facts of the crime or the alleged conduct of the defendant. Boyd v.

16

United States, 908 A.2d 39, 54-56 (D.C. 2006) (statements of witnesses who saw three
rather than four persons present at the time of the abduction, contradicting government
witness’s account, constituted Brady information that should have been disclosed to the
defense); Sykes v. United States, 897 A.2d 769, 778-79 (D.C. 2006) (grand jury testimony
of two witnesses contradicting government informant’s account of defendant’s alleged
confession constituted Brady information that should have been disclosed to the defense);
see also Norton v. Spencer, 351 F.3d 1 (1st Cir. 2003) (Brady violated when prosecutor
failed to disclose that a witness, who ultimately did not testify, claimed that he and the
other witness had made up their stories of molestation at the suggestion of the other
witness); United States v. Fisher, 106 F.3d 622, 634-35 (5th Cir. 1997) (Brady violation
where government failed to disclose interview with individual who was not called as a
witness at trial that undermined credibility of witness whose testimony was key to one of
the counts of conviction); D. Mass L. R. 116.2(B)(2)(c) (requiring disclosure of “[a]ny
statement . . . made orally or in writing by any person, that is inconsistent with any
statement made orally or in writing by any witness the government anticipates calling in
its case-in-chief”).
13.

Any information that relates to the potential mental or physical impairment of any
witness. Perez, 968 A.2d at 65 (government should have disclosed pretrial key
witness’s statements to the grand jury that he was drunk at the time of the incident and
had no memory of it); DAG Guidance Memo Step 1.B.7 (requiring review for disclosure
of “[k]nown substance abuse or mental health issues or other issues that could affect the
witness’s ability to perceive and recall events.”); see also Silva v. Brown, 416 F.3d 980,
984 (9th Cir. 2005) (failure to disclose deal that prosecution agreed with witness to
prevent the witness from undergoing a psychiatric examination prior to testifying); East
v. Johnson, 123 F.3d 235, 239-40 (5th Cir. 1997) (failure to disclose complete criminal
record that would have led to information concerning serious mental health problems of
key witness); United States v. Smith, 77 F.3d 511, 513-17 (D.C. Cir. 1996) (failure to
disclose dismissal of state charges in exchange for federal testimony and mental health
history of witness concerning depression); D. MASS. L. R. 116.2(B)(2)(a) &(g) (any
information that “tends to. . . [c]ast doubt on the credibility or accuracy of any witness
whom or evidence that the government anticipates calling or offering in its case-inchief,” including but not limited to “[i]nformation known to the government of any
mental or physical impairment [or substance abuse] of any witness”).

14.

Any information relating to potential witness bias, including:
a. Benefits received by a witness. Banks v. Dretke, 540 U.S. 668, 702-03 (2004)
(Brady violation when government failed to disclose witness status as paid
informant); Giglio v. United States, 405 U.S. 150 (1972) (Brady violation where
government failed to disclose nonprosecution agreement with cooperating witness);
DAG Guidance Memo, Step 1.B.7 (requiring disclosure of benefits to any testifying
witness including but not limited to: “[d]ropped or reduced charges, [i]mmunity,
[e]xpectations of . . . reduce[d] . . . sentence[s], [a]ssistance in. . . [other] criminal
proceeding[s], [c]onsiderations regarding forfeiture of assets, [s]tays of deportation or
other immigration status considerations, S-Visas, [m]onetary benefits, [n]onprosecution agreements, [l]etters to other law enforcement officials (. . . [including]

17

parole boards), setting forth the extent of a witness’s assistance or making substantive
recommendations on the witness’s behalf, [r]elocation assistance, [c]onsideration or
benefits to. . . third parties”); Lindsey v. United States, 911 A.2d 824, 839 (D.C. 2006)
(government made “substantially incomplete” Brady disclosures pretrial; “[e]ach of
the eyewitnesses had been treated favorably by the government in exchange for their
testimony by garnering plea agreements on other charges or being paid with federal
witness vouchers, but impeachment evidence on three of the four eyewitnesses was
not disclosed before trial and had to be supplemented by the government as the trial
progressed.”); see also Maxwell v. Roe, 628 F.3d 486 (9th Cir. 2010) (Brady violation
where prosecution failed to disclose details of informant’s plea bargaining process –
specifically, the fact that he independently negotiated a separate deal with the
prosecution that was more favorable than the deal negotiated by his lawyer;
information contradicted his representations of naiveté and indicated he was a
sophisticated jailhouse informant); Robinson v. Mills, 592 F.3d 730, 738 (6th Cir.
2010) (Brady violation where prosecution suppressed evidence of “State’s star
witness” status as a confidential informant); Tassin v. Cain, 517 F.3d 770, 778 (5th
Cir. 2008) (Brady violation where prosecution failed to disclose understanding or
agreement between witness and state, under which witness expected to gain beneficial
treatment in sentencing for related crimes; rejecting argument that there was no Brady
violation in the absence of an express promise); D. MASS. L. R. 116.2(B)(1)(c)
(requiring disclosure of information regarding “any promise, reward, or inducement .
. . given to any witness whom the government anticipates calling in its case-inchief”).
b. “Other known conditions that could affect the witness’s bias such as: [a]nimosity
toward defendant[,] [a]nimosity toward a group of which the defendant is a
member or with which defendant is affiliated[,] [r]elationship with [the] victim[,]
[k]nown but uncharged criminal conduct.” DAG Guidance Memo, Step 1.B.7; see
also D. Mass R. 116(B)(2)(d) (requiring disclosure of “[i]nformation reflecting bias
or prejudice against the defendant by any witness whom the government anticipates
calling in its case-in-chief”); D. Mass. L. R. 116.2(B)(2)(e) (requiring disclosure of
“[a] written description of any prosecutable...offense known by the government to
have been committed by any witness whom the government anticipates calling in its
case-in-chief”).
c. Information that calls into question efforts to present the witness as neutral and
disinterested. United States v. Kohring, 637 F.3d 895 (9th Cir. 2011) (reversing
conviction where prosecution failed to disclose that key witness to alleged extortion
and bribery scheme was under investigation for sexual exploitation of minors which
shed light on his incentive to cooperate with law enforcement); Schledwitz v. United
States, 169 F.3d 1003, 1015-16 (6th Cir. 1999) (Brady violation when government
presented witness as disinterested expert but witness had been actively involved in the
criminal investigation).
15.

Any information related to a witness’ dishonesty and/or criminality.

18

a. Acts of a witness that are probative of untruthfulness. United States v. Cuffie, 80
F.3d 514, 515 (D.C. Cir. 1996) (prosecution violated its Brady obligations where it
failed to disclose fact of key witness’s perjury in a Superior Court proceeding to
expunge the arrest record of his cousin); United States v. Quinn, 537 F.Supp.2d 99,
109 (D.D.C. 2008) (government conceded and court held that when the prosecution
“has information about a witness who it is planning to call in its case in chief that
indicates the witness has lied to the government about material matters during the
course of the investigation, that information is Brady material”)17; Bennett v. United
States, 797 A.2d 1251, 1255-58 (D.C. 2002) (Brady violation because government
suppressed information that key witness had lied to the police or the grand jury about
an unrelated murder); DAG Guidance Memo, Step 1.B.7 (requiring review for
potential disclosure “[p]rior acts under Fed. R. Evid. 608”); see also; Benn v.
Lambert, 283 F.3d 1040, 1055 (9th Cir. 2002) (Brady violation for failing to disclose
prior acts of theft and lying by government witness and citing cases noting that such
failures are material even if separate impeachment evidence concerning such a
witness is disclosed).
b. A copy of any criminal record of any witness, including witness’s prison records
and probation records, as well as a written description of any criminal cases
pending against any witness. Lewis v. United States, 408 A.2d 303 (D.C. 1978)
(setting up prophylactic rule concerning disclosure of criminal histories of
prosecution witnesses); DAG Guidance Memo, Step 1.B.7 (requiring review for
potential disclosure of “[p]rior convictions under Fed. R. Evid. 609”); see also D.
Mass. L. R. 116(B)(1)(d); D. Mass. L. R. 116(B)(1)(e)
c. Any information concerning a law enforcement officer’s misconduct and/or
abuse of authority: Cf. Farley v. United States, 694 A.2d 887, 890 (D.C. 1997)
(complaint regarding police officer to Civilian Complaint Review Board could be
Brady information, observing complaint procedures require officer to be notified of
complaint against him and his actual knowledge could be imputed to prosecution
team, and remanding to determine if suppression of complaint in this case violated
Brady); Bullock v. United States, 709 A.2d 87, 93 (D.C. 1998) (inviting defendant to
file §23-110 to litigate whether suppression of pending internal investigation of law
enforcement officer violated Brady); see also United States v. Brooks, 966 F.2d 1500,
1503 (D.C. Cir. 1992) (prosecutor must search internal police files for possible
impeachment information about officers important to the case); Nuckols v. Gibson,
233 F.3d 1261 (10th Cir. 2000) (Brady violation when prosecutor withheld
17

In Quinn, the court rejected the government’s argument that “nothing was suppressed at
Quinn’s trial or sentencing because it did not know with absolute certainty at that time that
Tatum had lied.” Quinn, 537 F.Supp.2d at 109. The court observed that “[t]he government’s
strained dichotomy between ‘knowing’ and being ‘highly suspicious’ constitutes no excuse here
since the failure to pinpoint a precise statement that would support a false statement charge was
due to the lack of timely investigation by the government—an action that ‘constituted a breach of
the government’s duty to search for Brady information.’” Id. at 110.

19

investigation into officer’s sleeping on the job, role in thefts from police, and other
nefarious firearms transactions because his credibility was key to suppression hearing
on Miranda); United States v. Deutsch, 475 F.2d 55 (5th Cir. 1973) (requiring review
of Postal Officer’s personnel file for impeachment evidence when he was
prosecution’s key witness); International Association of Chiefs of Police (“IACP”)
Model Brady Policy IV.B.1.l (recommending disclosure of “[a]n officer’s excessive
use of force, untruthfulness, dishonesty, bias, or misconduct in conjunction with his
or her service as a law enforcement officer.”).18
III. WHERE MUST THE GOVERNMENT LOOK FOR FAVORABLE INFORMATION?
A. It is the trial prosecutor’s duty to learn of Brady information: A prosecutor’s Brady
disclosure obligation is not limited to information of which a prosecutor has actual
knowledge; rather, a prosecutor has a nondelegable “duty to learn of” Brady information in
the case. Kyles, 514 U.S. at 437.
1. The argument that a trial prosecutor’s duty of disclosure to favorable information is
limited to that which he/she has actual knowledge of has been rejected because
a. It would not serve the fairness goals of the Brady mandate, see Brooks, 966 F.2d at
1503 (“an inaccurate conviction based on government failure to turn over an easily
turned rock is essentially as offensive as one based on government non-disclosure”);
Barbee v. Maryland, 331 F.2d 842, 846 (4th Cir. 1964) (“The police are also part of
the prosecution, and the taint on the trial is no less if they, rather than the State’s
attorney, were guilty of the nondisclosure” and “[f]ailure of the police to reveal such
material evidence in their possession is equally harmful to a defendant whether the
information is purposely, or negligently, withheld.”).
b. It would create a perverse incentive for a prosecutor to shield him/herself from Brady
information in the case. Brooks, 966 F.2d at 1502.
2. It is illegitimate for a prosecutor to assert pretrial that it may withhold Brady information
because the defense should be able to learn of this favorable information through other
means.
a. In Strickler, 527 U.S. at 283 n.23, 284, the Supreme Court rejected the argument that
defense counsel should have uncovered Brady information, stating that counsel was
entitled to rely on the representations of the prosecutor and, more generally, on the
prosecutor’s constitutional duty of disclosure. Likewise, in Banks, 540 U.S. at 695698, the Court declared that “[a] rule . . . declaring ‘prosecutor may hide, defendant
must seek,’ is not tenable in a system constitutionally bound to accord defendants due
process.”

18

Metropolitan Police Department Chief Cathy Lanier is a member of the IACP.
http://www.dcwatch.com/mayor/061120.htm.

20

b.

In In Re Sealed Case (Brady Obligations), 185 F.3d 887, 897 (D.C. Cir. 1999)
the D.C. Circuit rejected government argument that Brady was not violated because
defense counsel could have learned of details of cooperation agreements with witness
through “reasonable pre-trial preparation.” That the witness had been called to testify
for the defense was “irrelevant.” Defense was entitled to obtain information about
deals directly from the government and defense counsel “was no more required to
subpoena the [police] officers to learn of their agreements [with the witness] than she
was to subpoena the prosecutor to learn of her [agreements with the witness]. The
appropriate way for counsel to obtain such information was to make a Brady request
of the prosecutor, just as she did.” Other federal courts around the country have
likewise held that the government’s disclosure obligations are independent of what
the defendant or even a defendant’s witness may know or remember. See, e.g., Gantt
v. Roe, 389 F.3d 908, 913 (9th Cir. 2004); Benn v. Lambert, 283 F.3d 1040, 1061 (9th
Cir. 2002); United States v. Howell, 231 F.3d 615, 625 (9th Cir. 2000); Banks v.
Reynolds, 54 F.3d 1508, 1517 (10th Cir. 1995); Boss v. Pierce, 263 F.3d 734, 740
(7th Cir. 2001).

B. It is the prosecutor’s duty to learn of Brady information in the possession of the entire
“Prosecution Team”:
1.
A prosecutor “has a duty to learn of any favorable evidence known to
the others acting on the government’s behalf in a case,” Kyles, 514 U.S. at 437 – id.,
aka “the prosecution team.” DAG Guidance Memo, Step 1.A; Brooks, 966 F.2d at 1503
(Duty to search for Brady extends to “branches of government closely aligned with the
prosecution”) (internal quotations and citation omitted); United States v. Bryant, 439 F.2d
642, 650 (1971) (“The duty of disclosure affects not only the prosecutor, but the
Government as a whole, including its investigative agencies.”); see also Cook v. United
States, 828 A.2d 194, 202 (D.C. 2003) (quoting Bryant); United States v. Auten, 632 F.2d
478, 481 (5th Cir. 1980) (“If disclosure were excused in instances where the prosecution
has not sought out information readily available to it, we would be inviting and placing a
premium on conduct unworthy of representatives of the United States Government. This
we decline to do.”); United States v. Wood, 57 F.3d 733, 737 (9th Cir. 1995) (imputing
knowledge of FDA to federal prosecutors because FDA was agency that administered the
statute and had consulted with the prosecutor at times during prosecution); United States
v. Kattar, 840 F.2d 118,127 (1st Cir. 1988) (“The Justice Department's various offices
ordinarily should be treated as an entity, the left hand of which is presumed to know what
the right hand is doing.”); United States v. Barkett, 530 F.2d 189 (8th Cir. 1976) (“[O]ne
office within a single federal agency must know what another office of the same agency
is doing. This is no more than to hold the Government to the same standard of conduct as
governs private individuals in transmitting notice from agent to principal.”); Mastracchio
v. Vose, 274 F.3d 590, 600 (1st Cir. 2001) (imputing knowledge of witness protection
team and of the attorney general’s department to the prosecutor).
2. The prosecution team:
a. Necessarily encompasses the MPD, “[g]iven the close working relationship between
the Washington Metropolitan Police and the U.S. Attorney for the District of
Columbia (who prosecutes both federal and District crimes, in both the federal and

21

Superior courts).” Brooks, 966 F.2d at 1503; see also Kyles, 514 U.S. at 437 (“the
individual prosecutor has a duty to learn of any favorable evidence known to others
acting on the government's behalf in the case, including the police”); In re Sealed
Case (Brady Obligations), 185 F.3d 887, 892, (D.C. Cir. 1999) (quoting Kyles);
Farley v. United States, 694 A.2d 887, 890 (D.C. 1997) (“pursuant to Kyles, the
government is responsible for knowing what the police know”).
b. May extend beyond police officers working directly on the defendant’s case.
Brooks, 966 F.2d at 1503 (in drug case where prosecution’s chief witness (a police
officer) was subsequently shot and there was “some link between the death and her
work, and thus (by extension) to some trouble connected with her work,” duty to
search extended to homicide and Internal Affairs Division files); see also Robinson v.
United States, 825 A.2d 318, 314 (D.C. 2003) (citing Brooks and acknowledging
“the Brady doctrine requiring disclosure of exculpatory information has been
extended to situations where a division of the police department not involved in a
case has information that could easily be found by the prosecutors if they sought it
out”) (internal quotations and citation omitted).
c. Includes other prosecutors and their agents. In re Sealed Case (Brady Violations),
185 F.3d 887, 896 (D.C. Cir. 1999) (imputing knowledge to prosecutors in Superior
Court and federal court, as well as to MPD, FBI, DEA, or any other agency operating
on behalf of the same government); Smith v. Secretary of N.M. Dep't of Corrections,
50 F.3d 801, 824 (10th Cir. 1995) (Brady “encompasses not only the individual
prosecutor handling the case, but also extends to the prosecutor’s entire office, as well
as law enforcement personnel and other arms of the state involved in investigative
aspects of a particular criminal venture”) (internal citation omitted).
d. May extend across state-federal jurisdictional boundaries. United States v.
Antone, 603 F.2d 566, 569-70 (5th Cir. 1979) (imputing knowledge in state hands to
federal prosecutors because of degree of cooperation and interaction among the
various authorities during the general course of the investigation); United States v.
Naegele, 468 F.Supp.2d 150, 154 (D.D.C. 2007) (in case where defendant was
charged with making false statements in a bankruptcy proceeding, government had an
obligation under Brady to search the files of the main office of the Region 4 [U.S.]
Trustee in Columbia, South Carolina). A general test is set forth in United States v.
Risha, 445 F.3d 298, 303-06 (3d Cir. 2006): “(1) whether the party with knowledge of
the information is acting on the government’s ‘behalf’ or is under its ‘control’; (2) the
extent to which state and federal governments are part of a ‘team,’ are participating in
a ‘joint investigation’ or are sharing resources; and (3) whether the entity charged
with constructive possession has ‘ready access’ to the evidence.
3. The prosecutor’s “duty to learn” of favorable information in possession of the
prosecution team extends to information that has not been memorialized.
a. Brady is not a rule of discovery, see II.D.2. supra, and thus is not limited to a review
and production of pre-existing documents. As the government’s own policy states,
“material exculpatory information that the prosecutor receives during a conversation

22

with an agent or a witness is no less discoverable than if that same information were
contained in an email.” DAG Guidance Memo, Step I.B.5; see also id. at Step
1.B.8.b (noting that prosecutor’s “[t]rial preparation meetings with witnesses
generally need not be memorialized” but that prosecutors “ should be particularly
attuned to new or inconsistent information disclosed by the witness during a pre-trial
witness preparation session” and that such information may be subject to disclosure).
b. Thus, as the government’s own policy acknowledges, the “duty to learn”
encompasses the duty to speak to members of the prosecution team to become aware
of previously undocumented favorable information. DAG Guidance Memo, Step
1.B.6 (“Prosecutors should have candid conversations with the federal agents with
whom they work regarding any potential Giglio issues. . . .”); see also id. (requiring
prosecutors to review “case-related communications” which “may be memorialized in
emails, memoranda, or notes”) (emphasis added); Cf. Benton v. United States, 815
A.2d 371 (D.C. 2003) (declining to endorse government argument that police
officer’s perjury was not disclosable under Brady because it was known only to the
officer himself).
NOTE: The government’s policy is that all witness interviews should be memorialized:
Witness interviews should be memorialized by the agent. Agent and prosecutor
notes and original recordings should be preserved, and prosecutors should
confirm with agents that substantive interviews should be memorialized. When a
prosecutor participates in an interview with an investigative agent, the prosecutor
and agent should discuss note-taking responsibilities and memorialization before
the interview begins (unless the prosecutor and the agent have established an
understanding through prior course of dealing). Whenever possible, prosecutors
should not conduct an interview without an agent present to avoid the risk of
making themselves a witness to a statement.
DAG Guidance Memo, Step 1.B.8.
4. The prosecutor’s constitutional “duty to learn” of favorable information extends to
documents that are otherwise privileged or protected from disclosure by statute or
court rules.19
a. The prosecution has a duty to review documents that are otherwise privileged or
protected from disclosure by statute or court rule. United States v. Kohring, 637
F.3d 895, 908 (9th Cir. 2010 (“prosecution ha[d] a duty to disclose the noncumulative underlying exculpatory facts in the [prosecutor’s] email”) (internal
quotations and citation omitted); United States v. Lloyd, 71 F.3d 408 (D.C. Cir. 1995)
(Brady violation when government failed to disclose IRS filing information for
people, even though protected by statute, because those people’s prior false returns
could have helped defendant show that the new falsities were not his doing, but
19

Similarly, privilege or statutory restrictions on disclosure are not a legitimate basis for
withholding Brady information from the defense. See V.D. infra.

23

rather, a continuation of their prior improper conduct); Hammon v. United States, 695
A.2d 97, 105 (D.C. 1997) (acknowledging that “under certain circumstances, records
in confidential juvenile case files are subject to Brady disclosure” & citing cases); Cf.
Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (relying on Brady cases, Court holds
defendant’s due process entitlement to favorable material documents potentially
extended to documents in statutorily-protected Children and Youth Services file and
affirming remand for in camera review); United States v. Williams Companies, Inc.,
562 F.3d 387, 397 (D.C. Cir. 2009) (Acknowledging that Brady “contemplates a role”
for the trial court vis-à-vis disclosures of privileged information, and directing that
“[u]pon remand the district court can flesh out the details as to which documents must
be disclosed . . . and determine whether a protective order should be issued with
respect to any of those documents”);
b. This includes factual information in the prosecutor’s notes. Kohring, 637 F.3d at
908; United States v. NYNEX Corp., 781 F. Supp. 19, 25 (D.D.C. 1991) (noting that
case law “suggest[s] that internal materials possibly constituting work product may
not automatically be exempt from Brady requirements”); see also DAG Guidance
Memo, Step 1.B.1 (requiring review of an investigative agency’s files and noting that
if favorable “information is contained in a document that the agency deems to be an
‘internal’ document . . . it may not be necessary to produce the internal document,
but it will be necessary to produce all of the discoverable information contained in
it.”); DAG Guidance Memo, Step 1.B.5 (Requiring review of “[s]ubstantive
communications” between prosecutors and agents, including “factual reports about
investigative activity, factual discussions of the relative merits of evidence, factual
information obtained during interviews or interactions with witnesses/victims, and
factual issues relating to credibility”).
c. Privilege or statutory restrictions on disclosure are not a legitimate basis for
disregarding Brady disclosure obligations. Rather, where Brady compels
disclosure, a prosecutor may seek court permission and/or a protective order from the
court to limit disclosure of this information. United States v. Williams Companies,
Inc., 562 F.3d 387, 397 (D.C. Cir. 2009) (Acknowledging that Brady “contemplates a
role” for the trial court vis-à-vis disclosures of privileged information, and directing
that “[u]pon remand the district court can flesh out the details as to which documents
must be disclosed . . . and determine whether a protective order should be issued with
respect to any of those documents”); see also Boyd, 908 A.2d at 61 (generally
affirming trial courts’ oversight power over Brady disclosures); DAG Guidance
Memo Step 3.A. (noting that when “considerations [militating against disclosure]
conflict with the[ir] discovery obligations, prosecutors may seek a protective order from
the court addressing the scope, timing, and form of disclosures.”)
C. Pursuant to the government’s own policy, specific documents federal prosecutors should
examine include:
1. “[T]he investigative agency’s files,” including any emails/electronic documents. DAG
Guidance Memo, Step 1.B.1.

24

2. All files relating to a “confidential informant,” “not just the portion relating to the current
case,” “including all proffer, immunity, and other agreements, validation assessments,
payment information, and other potential witness impeachment information.” Id. at Step
1.B.2.
3. All “[e]vidence and [i]nformation [g]athered [d]uring the [i]nvestigation,” including but
not limited to anything obtained during searches or via subpoenas. Id. at Step 1.B.3
4. All “[s]ubstantive [c]ase-[r]elated [c]ommunications” including communications “1)
among prosecutors and/or agents, (2) between prosecutors and/or agents and witnesses
and/or victims, and (3) between victim-witness coordinators and witnesses and/or
victims.” Id. at Step 1.B.5.
NOTE: in April 2011 the USAO acknowledged that it had failed to disclose
recordings of radio communications in a number of cases because it thought the
radio channels used (which it described as “tactical radio communications”) were
not recorded. Be advised that it is PDS’s understanding that the Office of Unified
Communications currently records ALL radio communications.
5. Any “[p]otential Giglio [i]nformation [r]elating to [l]aw [e]nforcement [w]itnesses.”
Step 1.B.6; see also USAM § 9-5.100.1 (requiring “[e]ach investigative agency employee
. . . to inform prosecutors with whom they work of potential impeachment information as
early as possible prior to providing a sworn statement or testimony in any criminal
investigation or case” but noting that “in some cases, a prosecutor may also decide to
request potential impeachment information from the investigative agency”). This
includes
“(a) any finding of misconduct that reflects upon the truthfulness or possible bias of the
employee, including a finding of lack of candor during an administrative inquiry;”
USAM § 9-5.100.5
“(b) any past or pending criminal charge brought against the employee; and,” id.
“(c) any credible allegation of misconduct that reflects upon the truthfulness or possible
bias of the employee that is the subject of a pending investigation.” Id.
6. Any “[p]otential Giglio [i]nformation [r]elating to [n]on-[l]aw [e]nforcement [w]itnesses”
or declarants of hearsay admitted into evidence, including “[p]rior inconsistent
statements,” “[s]tatement variations,” “benefits provided to witnesses,” “[o]ther known
conditions that could affect the witness's bias,” prior bad acts, prior convictions, and
“[k]nown substance abuse or mental health issues or other issues that could affect the
witness's ability to perceive and recall events.” Step 1.B.7
7. Any “[i]nformation [o]btained in [w]itness [i]nterviews,” or “[t]rial [p]reparation
[m]eetings” with witnesses. DAG Guidance Memo, Step 1.B. 8. “Interview memoranda
of witnesses expected to testify, and of individuals who provided relevant information but
are not expected to testify, should be reviewed.” Id. “Agent notes should be reviewed if
there is a reason to believe that the notes are materially different from the memorandum,

25

if a written memorandum was not prepared, if the precise words used by the witness are
significant, or if the witness disputes the agent's account of the interview.” Id.; see also
United States v. Triumph Capital Group, Inc., 544 F.3d 149, 165 (2d Cir. 2008)
(reversing conviction where prosecution failed to disclose agent’s notes from cooperating
witness’s proffer session containing information favorable to defendant).
IV.

HOW MUST PROSECUTORS ASSESS MATERIALITY PRE-TRIAL?20

A. Distinguishing pre-trial from appellate/post-conviction assessments of materiality
1. To prevail on a Brady claim on appeal or in post-conviction proceedings, a defendant
must establish that (a) the prosecution was in possession (actual or constructive)
favorable information , (b) the prosecution failed to disclose this information to the
defense in a timely fashion or at all and (c) the withheld favorable information was
material to the outcome of the trial. Strickler, 527 U.S. at 281-82. The notion of
“materiality” is the attempt by courts to quantify the importance withheld information or,
put another way, the prejudice to the defense at trial from the suppression or delayed
disclosure of this information. Bagley, 473 U.S. at 682 (Brady information 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”).
2. The pretrial materiality calculus presents distinct challenges and considerations.
a. Pretrial, it is difficult if not impossible to say what the importance of any one piece of
withheld favorable information to the outcome of a trial is – because the trial has yet
to occur.
b. Pretrial, the prosecution’s focus should be to ensure that the due process guarantee is
fulfilled – not to conduct speculative, ex ante assessments prejudice if certain
information is strategically withheld.
3. Accordingly, the Supreme Court and the D.C. Court of Appeals have recognized that the
pre-trial materiality assessment differs from – and encompasses more information than21
20

Whether the suppressed favorable information was material was the primary issue in Smith v.
Cain, No. 10-8145, thus PDS anticipates some discussion of materiality in the Court’s opinion in
that case.
21

Even if a trial court erroneously determines that it should apply the post-conviction materiality
standard pretrial, counsel should be prepared to educate the court that this standard is itself not a
high one. It merely requires the defense to show that, had the Brady information been timely
disclosed, there is a “reasonable probability” that the jury would have reached a different result –
i.e., a reasonable probability that the jury would have had reasonable doubt as to defendant’s
guilt. A reasonable probability does not mean more likely than not. Kyles, 514 U.S. at 434. As
the Supreme Court explained in Kyles,
Bagley’s touchstone of materiality is a “reasonable probability” of a different result, and
the adjective is important. The question is not whether the defendant would more likely
than not have received a different verdict with the evidence, but whether in its absence he

26

– the materiality assessment made on appellate review or in post conviction proceedings.
See IV.B infra.
B. The Pretrial Materiality Standard in D.C.: Prosecutors must disclose all “arguably
material” favorable information.
1. The pre-trial materiality analysis is more inclusive: Both the Supreme Court and the
Court of Appeals have recognized that the prosecution’s “duty of disclosure” pretrial
under Brady is “broad,” Strickler, 527 U.S. at 281, and “exists even when the items
disclosed later prove not to be material” on appeal. Boyd, 908 A.2d at 60. In Boyd, the
Court of Appeals explained,
the Supreme Court in Strickler contemplated the existence of a broad “duty of
disclosure,” but recognized that, when the government fails to carry out its duty,
its noncompliance with that obligation will only rise to the level of a
constitutional violation if materiality is subsequently established. The Court thus
recognized that a duty of disclosure exists even when the items disclosed later
prove not to be material.
Id. (emphasis added); accord Miller, 14 A.3d at 1109 (“as we explained in Boyd, [and
as] the Supreme Court recognized in Strickler, . . . there is a duty of disclosure even
when the items disclosed subsequently prove not to be material. . . . We further stated
in Boyd that the language in Strickler “can fairly be read only as recognizing that a
duty of disclosure exists even if it later appears that reversal is not required.”)
2. The broader interpretation of materiality pretrial requires prosecutors:
a. To “make the materiality determination. . . with a view to the need of defense
counsel to explore a range of alternatives in developing and shaping a
defense” and
b. “[I]n arguable cases, . . . to provide the potentially exculpatory information to
the defense or, at the very least, make it available to the trial court for in
camera inspection.”
Boyd, 908 A.2d at 61; see also Cone v. Bell, 129 S. Ct. 1769, 1783 at n.15 (2009)
(prosecutors must “resolv[e] doubtful questions in favor of disclosure”); Kyles, 514
U.S. at 439-40 (same).
received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A
“reasonable probability” of a different result is accordingly shown when the government's
evidentiary suppression “undermines confidence in the outcome of the trial.”
Kyles, 514 U.S. at 434 (quoting Bagley, 473 U.S. at 678); id. at 543 (the question is not whether
the State would have had a case to go to the jury if it had disclosed the favorable evidence, but
whether we can be confident that the jury's verdict would have been the same).

27

This broad interpretation of materiality takes into account the reality, acknowledged
by the Court of Appeals over thirty years ago in Lewis v. United States, 408 A.2d 303,
(D.C. 1979) that,
a defendant’s actual use of [Brady information] at trial before the jury decides is a
better test of materiality than a retrospective inquiry by an appellate court. . . . It
follows, in the words of [United States v. Agurs, 427 U.S. 97, 106 (1976)] that a
defendant is entitled to disclosure because “a substantial basis for claiming
materiality exists” . . . . In short, the defendant, not the post-trial reviewing court,
should have control over materiality to outcome.
Id. at 308.
3.

The broader interpretation of materiality pretrial is consistent with
government’s own policy.
a. The government’s own policy acknowledges “that it is sometimes difficult to
assess the materiality of evidence before trial,” and thus directs that “prosecutors
generally must take a broad view of materiality and err on the side of disclosing
exculpatory and impeaching evidence.” USAM § 9-5.001.B.1.
b. Pursuant to the government’s policy, prosecutors “must disclose information that
is inconsistent with any element of any crime charged against the defendant or
that establishes a recognized affirmative defense, regardless of whether the
prosecutor believes such information will make the difference between conviction
and acquittal of the defendant for a charged crime.” USAM § 9-5.001.C.1.
c. Pursuant to the government’s policy, prosecutors “must disclose information that
either casts a substantial doubt upon the accuracy of any evidence—including but
not limited to witness testimony—the prosecutor intends to rely on to prove an
element of any crime charged, or might have a significant bearing on the
admissibility of prosecution evidence. This information must be disclosed
regardless of whether it is likely to make the difference between conviction and
acquittal of the defendant for a charged crime.” USAM § 9-5.001.C.2.
d. The government’s policy acknowledges that “items of information viewed in
isolation may not reasonably be seen as meeting the standards outlined in [USAM
§ 9-5.001.C.1 & 2], [but that] several items together can have such an effect. If
this is the case, all such items must be disclosed.” USAM § 9-5.001.C.4.

4.

The broader interpretation of materiality pretrial does NOT dispense with the
materiality inquiry entirely.
a. The same considerations (see IV.A supra) that have led the Court of Appeals to
acknowledge a broader interpretation of materiality pretrial, have led other courts
to dispense with the materiality inquiry entirely pretrial. For example, in United
States v. Safavian, 233 F.R.D. 12, 16 (D.D.C. 2005), the Court held that “the only
question before (and even during) trial is whether the evidence at issue may be

28

‘favorable to the accused’; if so, it must be disclosed without regard to whether
the failure to disclose it likely would affect the outcome of the upcoming trial.”);
see also United States v. Carter, 313 F. Supp. 2d 921 (E.D. Wisc. 2004) (rejecting
pretrial materiality analysis); United States v. Sudikoff, 36 F. Supp. 2d 1196 (C.D.
Cal. 1999) (same).
b.

At least for the time being, the Court of Appeals has REJECTED this approach.
In Boyd, the Court of Appeals stated that it “would be inclined to follow Safavian
if we considered ourselves to be at liberty to do so. We believe, however, that the
opinion in Safavian cannot be reconciled with Agurs, Bagley, and Kyles. Indeed,
the reasoning in Safavian parallels and expands upon that of Justice Marshall's
dissenting opinion in Bagley.” 908 A.2d at 61 n.32.

NOTE: despite its omission of any mention of materiality, D.C. R. Prof. Conduct 3.8,
Special Responsibilities of a Prosecutor cannot be cited as imposing an obligation on
prosecutors to make disclosures of favorable information regardless of materiality.
The rule states that the prosecution has an obligation “to disclose to the defense, upon
request and at a time when use by the defense is reasonably feasible, any evidence or
information that the prosecutor knows or reasonably should know tends to negate the
guilt of the accused or to mitigate the offense.” Id. (emphasis added). A comment to
this rule, however, states that the rule is not intended to increase the prosecutor’s
obligations beyond those required by the constitution, statute, or local court rules.
Comment[1] to Rule 3.8. (No such limitation is imposed on the corresponding ABA
rule.)
C. Trial courts have the power and the obligation pretrial to ensure that the government is
broadly interpreting the materiality component of the Brady analysis.
1. The Court of Appeals in Boyd affirmed the trial court’s authority and obligation to
oversee Brady disclosures and to ensure that the government is properly assessing
materiality pretrial: [T]he trial court must take into account the reality that the
prosecutor has no crystal ball, and must review the exercise of prosecutorial
discretion accordingly.” Boyd, 908 A.2d at 61; see also id. at 59 (regarding Brady
disclosures, prosecutorial “discretion is not unlimited, and courts have the obligation to
assure that it is exercised in a manner consistent with the right of the accused to a fair
trial”).
2. One means for the trial court to exercise its oversight over the prosecution’s materiality
assessments is to review documents in camera.
a. “In arguable cases” the prosecution is supposed to “provide the potentially exculpatory
information to the defense or, at the very least, make it available to the trial court for
in camera inspection.” Boyd, 908 A.2d at 61.
b. But even where the prosecution does not request it, “when the issue appears to be a
close one,” the court “should insist upon reviewing” arguable Brady information

29

and should direct disclosure to the defense if, considering (to the extent possible)
the anticipated course of the trial, there is a reasonable probability that disclosure
may affect the outcome. All such rulings must be made in full recognition of the
reality that Brady is not a discovery rule but a rule of fairness and minimum
prosecutorial obligation, and that compliance with the prosecution’s
responsibilities under Brady is necessary to ensure the effective administration of
the criminal justice system.
Boyd, 908 A.2d at 61 (emphasis added; internal quotations and citation omitted); see
also Smith v. United States, 665 A.2d 962, 969 (D.C. 2008) (abuse of discretion for
court to refuse to review a transcript in camera where prosecution conceded there
were “‘minor inconsistencies in the testimony as to how the shooting happened’[;]
[a]t that point it was incumbent on the trial court to review the transcript and
determine whether the inconsistencies were indeed ‘minor’ or whether they were
material to appellant's guilt or innocence. Without knowledge of what those
inconsistencies were, the court was not in a position to make an informed decision
‘relevant to the exercise of its discretion.’”) (internal quotations and citations
omitted).
3. Another (novel) option short of in camera review is for the trial court to order the
prosecution to file a nonmateriality log (akin to a privilege log in civil litigation) that lists
all the information that the government has identified as favorable to the defense but
nonetheless decided to withhold on the grounds that it is not arguably material.
a. There is some precedent for this in Superior Court. For example, in United States v.
Ralph Price, 2008 CF1 18280 (Weisberg, J.), the government filed ex parte a
document (later disclosed to the defense by the court) in which it detailed “things that
the government has and has not turned over to the defense and reasons for each,” so
that the trial court could assess whether the government had satisfied its disclosure
obligations under Brady. Tr. 3 (9/14/09).
b. In other jurisdictions prosecutors are required to file declination notices when they
decide to withhold discovery and Brady information. For example, in the District of
Massachusetts, if either the government or a defendant determines that disclosures
“required by the Local Rules” (which includes disclosures of Brady information22)
“would be detrimental to the interests of justice,” they must file a declination notice
“before or at the time that disclosure is due.” D. MASS. L. R. 116.6(a). The party
withholding information has the option of either “advis[ing]” the opposing party “in
writing, with a copy filed in the Clerk’s Office, of the specific matters on which
disclosure is declined and the reasons for declining,” or “fil[ing] its submissions in
support of declination under seal . . . for the Court’s in camera consideration.” Id.

22

D. MASS. L. R. 116.2; see also United States v Jones, 620 F.Supp.2d 163, 170 (D. Mass. 2009)
(noting that “[t]he government is required to provide . . . exculpatory information automatically .
. . unless a declination procedure is invoked or an ex parte protective order is obtained.”).

30

The government is required to follow similar declination procedures in other
jurisdictions when it opts not to disclose Brady information. 23
D. What the defense can do to establish materiality pre-trial.
In order for the defense to obtain favorable information from the prosecution, the
prosecution – or if court intervention is sought, the trial court – must conclude that the
information is at least arguably material, see IV.B supra. The defense may need to
persuade the government or a court that this is the case. Similarly, if the government
belatedly discloses favorable information on the eve of trial, the defense will have to
establish that the withheld favorable information is material and that the delay in its
production was prejudicial in order to obtain a remedy for the belated disclosure. See
V.E infra.
1. Actions the defense should take.
a. Make Brady requests with as much specificity as possible.
1) Although the defense has no obligation to request Brady information, see II.E.
supra, defense counsel should, to the best of his/her ability make specific
requests in writing – and should update Brady letters/emails as the defense
investigation progresses.
2) Requests put the prosecution on notice to look for and show that this
information is important to the defense – almost by definition a demonstration
of materiality. See Zanders, 999 A.2d at 163-64 (“It should by now be clear
that in making judgments about whether to disclose potentially exculpatory
information, the guiding principle must be that the critical task of evaluating
the usefulness and exculpatory value of the information is a matter primarily
for defense counsel”); Boyd, 908 A.2d at 57 (holding that materiality
determinations should be made “with a view to the need of defense counsel to
explore a range of alternatives in developing and shaping a defense”).
23

United States v. Thomas, 2006 WL 3095956 *1-2 (D.N.J. 2006) (court ordered the government
to disclose, inter alia, Brady information, and to “advise[]” defense counsel “in writing of the
declination,” within 5 days of the discovery conference); W.D. TEX. L. Crim. R. 16-1 (requiring
parties to file a “disclosure agreement checklist” which includes lines for “exculpatory material”
and “impeachment material”; the government may indicate it has been “disclosed,” that it “will
disclose upon receipt,” “that it refuses to disclose” or that this is “not applicable”); N.D. W.VA.
L. Crim. R. 16.02 (“A declination of any requested disclosure shall be in writing, set forth
specific reasons therefore, directed to defendant’s counsel, and signed personally by the United
States Attorney or the Assistant United States Attorney assigned to the case, and shall specify the
specific types of disclosures that are declined”); id. 16.05 & 16.06 (requiring disclosure of Brady
and Giglio information); N.M. R. Crim. P. 5-501 (requiring disclosure, inter alia, of any
favorable material information and also requiring the prosecutor to “file with the clerk of the
court” at least 10 days prior to trial “a certificate stating that all information required to be
produced has been produced, except as specified”).

31

3) Counsel can use the prosecutor’s responses (or failures to respond) against
him/her in any pleadings/argument to the trial court, see IV.D.2.C. infra.
4) Specific requests may demonstrate that any subsequent failure by a trial court
to conduct an in camera review was an abuse of discretion. See Smith v.
United States, 665 A.2d 962 (D.C. 2008).
b. Ask for judicial assistance early and often.
1) The defense should file its Brady letters and any responses from the
prosecution with the court.
2) The defense should move to compel production of favorable information that it
has a good faith belief in the prosecution’s actual or constructive possession
and should be prepared to make a fact-specific showing (ex parte if necessary)
why this information might be favorable to the defense in the investigation or
preparation of the defense case.
3) The defense should request in camera review of favorable information that the
government refuses to disclose.
2. Arguments the defense should be prepared to make (if applicable).
a. The materiality of the favorable information should be “considered
collectively, not item by item.” Kyles, 514 U.S at 436; see also Boyd, 908 A.2d
at 61 (quoting Kyles).
1. In Kyles, the Supreme Court explained that favorable information should not
be considered in isolation.
2. Even if a single piece of favorable information on its own may be deemed
immaterial, the combination of two or more pieces of favorable information
may be arguably material such that disclosure is constitutionally required. Id.
at 437 (prosecution has responsibility to “gauge the likely net effect of all
such evidence and make disclosure when the point of ‘reasonable probability’
is reached”).
b. The favorable information is material because it generally undermines the
quality of the prosecution’s investigation.
1) In addition to explaining why the favorable information is important vis-à-vis
the prosecution’s theory of the case or the defense’s theory of the defense,
counsel may want to argue that the information could help the defense attack
the quality of the investigation in the case.
2) The Supreme Court endorsed such an argument in Kyles, 514 U.S. at 445
(suppressed information was material because “it would have raised
opportunities to attack not only the probative value of crucial physical

32

evidence and the circumstances in which it was found, but the thoroughness
and even the good faith of the investigation, as well.”); see also id. at 446 n.15
(“indications of conscientious police work will enhance probative force [of the
prosecution’s evidence] and slovenly work will diminish it”).
3) See also Mendez v. Artuz, 303 F.3d 411, 416 (2d Cir. 2002) (“The defendant
could also have used the suppressed information to challenge the
thoroughness and adequacy of the police investigation. . .Presented with
detailed information about a contract murder plot and no indication that
Mendez was involved or even associated with the participants, the police
essentially did nothing.”); Bowen v. Maynard, 799 F.2d 593, 613 (10th Cir.
1986) (finding Brady information would have enabled trial counsel to raise
serious questions concerning the “manner, quality, and thoroughness of the
investigation that led to Bowen’s arrest and trial”); Workman v.
Commonwealth, 272 Va. 633, 646 (Va. 2006) (Brady material may have been
inadmissible hearsay, but it was admissible in order to “discredit the police
investigation”).
c. The government’s “no Brady” response or silence misled/harmed the defense.
As the Supreme Court in Bagley specifically acknowledged,
the more specifically the defense requests certain evidence, thus putting the
prosecutor on notice of its value, 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. . . . . [T]he reviewing
court may consider directly any adverse effect that the prosecutor's failure to
respond might have had on the preparation or presentation of the defendant’s
case.
Bagley, 473 at 682-83.
d. The government’s statements/actions demonstrate that the information is
material (or that the court cannot defer to the government’s materiality
determinations).
1) Use failures to respond to Brady requests as evidence that the government is
ignoring/not taking its Brady disclosure obligations seriously and their pretrial
materiality calculations must be scrutinized. Agurs, 427 U.S. at 106 (“When
the prosecutor receives a specific and relevant [Brady] request, the failure to
make any response is seldom, if ever, excusable.”).
2) Use “no Brady” responses coupled with subsequent Brady disclosures, as
evidence that the government is not carefully reviewing the information in its
possession – again demonstrating a need for scrutiny by the court – and/or
evidence that information that the government is trying to hide is material.
See Silva v. Brown, 416 F.3d 980, 990 (9th Cir. 2005) (prosecution’s efforts to
suppress Brady demonstrates its materiality: noting with respect to a secret
deal with a witness, “Presumably, the importance to the State’s case of [the

33

witness] James’s testimony is what initially led the prosecution to make the
secret deal; likewise, the importance to James’s credibility of his false
testimony regarding the absence of a deal is what led the prosecution to
endeavor to keep that deal secret.”) (internal quotations and citation omitted).
3) To the extent the prosecutor acknowledges that information may be Brady but
that defense is not entitled to it yet – use this response to show that the
government is scared of disclosure and thereby acknowledging materiality.
See V infra (discussing timing of disclosures and why the government should
not be permitted to strategically delay disclosure).
3. Arguments the defense should be prepared to rebut.
a. The favorable information is not material because the prosecution deems it not to
be credible.
1) The Supreme Court may address this in Smith v. Cain, No. 10-8145; in the
meantime, the Court of Appeals has already held that “[i]t is not for the
prosecutor to decide not to disclose information that is on its face exculpatory
based on an assessment of how that evidence might be explained away or
discredited at trial, or ultimately rejected by the fact finder.” Zanders v.
United States, 999 A.2d 149, 1664 (D.C. 2010) (emphasis added).
2) Other jurisdictions have similarly rejected the prosecution’s attempt to usurp
the jury’s function of weighing the evidence and assessing credibility. See,
e.g., Lindsey v. King, 769 F.2d 1034, 1040 (5th Cir. 1985) (“It was for the
jury, not the prosecutor, to decide whether the contents of an official police
record were credible, especially where-as here-they were in the nature of an
admission against the state's interest in prosecuting Lindsey. On such grounds
as these, prosecutors might, on a claim that they thought it unreliable, refuse
to produce any matter whatever helpful to the defense, thus setting Brady at
nought. Such an explanation is laughable, offering it an effrontery. It does not
wash, nor do we believe for a moment that the prosecutor could have been so
simple-minded as to have believed it would.”).
b. The favorable information is not material because it is cumulative.
1) Emphasize how the sought-after information is of a different nature than what
the defense already has or that it comes from a source that is neutral or not
subject to the same impeachment. E.g., Boss v. Pierce, 263 F.3d 734, 744-46
(7th Cir. 2001) (when either of those two factors present, case for materiality
is very strong); see also United States v. Boyd, 55 F.3d 239, 244-46 (7th Cir.
1995) (The receipt by government prisoner witnesses of “a continuous stream
of unlawful, indeed scandalous, favors from staff at the U.S. Attorney's
office” – including allowing witnesses to meet with visitors with virtually no
supervision at the U.S. Attorneys office at which time witnesses obtained
drugs from and had sex with visitors – was material and not cumulative of

34

other impeachment information where witnesses “claimed to have ‘seen the
light’ when, having been arrested and sentenced or threatened with severe
punishment for their activities . . ., they had decided to cooperate with the
government.”).
2) If the sought-after information might strengthen evidence the defense already
has, emphasize that it is often precisely the accumulation of evidence that
leads to persuasion. See United States v. Cuffie, 80 F.3d 514, 518 (D.C. Cir.
1996) (the fact that a witness was impeached does not render additional
impeachment information immaterial, particularly if that new information is
impeachment evidence of a different kind).
c. The favorable information is not material because it is inadmissible.
The disclosure obligation under Brady extends to information useful to
preparation or investigation that may lead to admissible evidence or have some
meaningful impact on defense strategy. See Point II.D. supra.
V.

WHEN MUST THE PROSECUTION DISCLOSE BRADY INFORMATION?

A. The government has an obligation to provide “timely, pretrial disclosure,” Perez v.
United States, 968 A.2d 39, 66 (D.C. 2009); and timeliness is assessed from the
perspective of the defense’s ability to meaningfully use the information. Id.; Miller,
14 A.3d 1094, 1111 (D.C. 2011).
1.

In Perez,
a.

The Court of Appeals noted that it had been “repeatedly confronted with
complaints of tardy disclosure of exculpatory material,” Perez, 968 A.2d at 65,
and clarified that at trial disclosure of Brady information is presumptively
untimely:
This Court has rejected any notion that disclosure in accordance with the
Jencks Act satisfies the prosecutor's duty of seasonable disclosure under
Brady, or that if such disclosure is made, the burden may then be shifted to
the defendant, under pain of waiver, to request a continuance or similar
remedy.
Id. at 66 (emphasis added) (internal quotation and citation omitted).

b.

The Court explained that “timely, pretrial disclosure” id. (emphasis added), is
necessary because:
the due process obligation under Brady to disclose exculpatory
information is for the purpose of allowing defense counsel an opportunity
to investigate the facts of the case and, with the help of the defendant,
craft an appropriate defense.

35

Id. at 66 (emphasis added).
c.

Perez is in line with earlier decisions acknowledging that Brady information must
be disclosed “at such a time as to allow the defense to use the favorable material
effectively in the preparation and presentation of its case.” Lindsey v. United
States, 911 A.2d 824, 838 (D.C. 2006) (quoting Curry v. United States, 658 A.2d
193, 197 (D.C. 1995) (quoting Edelen v. United States, 627 A.2d 968, 970 (D.C.
1993)). But Perez is ground-breaking in its explicit recognition that to permit
meaningful use, the defense must have Brady information pretrial.
1) Subsequent to Perez, the Court of Appeals in Zanders, 999 A.2d 149 (D.C.
2010) affirmed the obligation of timely, pretrial disclosure.
a) The Court specifically noted that the defense must have “a fair
opportunity to pursue leads before they turn cold or potential
witnesses become disinclined to cooperate with the defense.” Id. at 164
(emphasis added).
b) Accordingly, the court stated that “[a]ny doubts should be resolved in
favor of full disclosure made well before the scheduled trial date, unless
there is good reason to do otherwise (such as substantiated grounds to fear
witness intimidation or risk to the safety of witnesses), upon request by the
defense.” Id. at 164 (emphasis added).
2) Most recently, the court in Miller affirmed the obligation of timely, pretrial
disclosure to permit use by the defense of the disclosed information, “not only
in the presentation of its case, but also in its trial preparation.” 14 A.3d at
1111.
a) Although the court declined to set uniform deadlines for all cases, it made
clear that the most important factor to determine timeliness is “the
sufficiency, under the circumstances, of the defense’s opportunity to
use the evidence when disclosure is made.” Id.
b) The court unequivocally rejected a “better late than never” timing analysis
employed by the trial court:
As a practical matter the adoption of the trial court’s analysis that so long
as the prosecution provides exculpatory material to the defense on the eve
of trial and in time for a skilled attorney to make some use of it, then no
matter how long the government has delayed disclosure, and regardless of
how compressed defense counsel’s opportunity to make new investigative,
strategic and tactical decisions in mid-trial, based on the new evidence,
may be, the prosecution has satisfied its obligations under Brady. The
truism “better late than never,” assessed from such a perspective, can too
readily be expanded to embrace the notion that even “very late is good
enough.” We reject such a theory as inconsistent with Brady.

36

Id.
c) The court in Miller recognized that at the most basic level, the defense
needs time to think about Brady disclosures and to make “new
investigative, strategic and tactical decisions.” 14 A.3d at 1111; see
also id. at 1112 (Brady information should have been “disclosed in time to
permit Miller’s attorneys to contemplate its implications”). The Court
explained
that “the longer the prosecution withholds information, or (more
particularly) the closer to trial the disclosure is made, the less
opportunity there is for use.” [Leka v. Portuondo, 257 F.3d 89, 100 (2d
Cir.2001)]. This is so, in part, because “new witnesses or developments
tend to throw existing strategies and preparation into disarray.” Id. at
101. The sequence of events in this case, like the record in Leka,
“illustrates how difficult it can be to assimilate new information,
however favorable, when a trial already has been prepared on the basis
of the best opportunities and choices then available.” Id. “The defense
may be unable to divert resources from other initiatives and obligations
that are or may seem more pressing,” and counsel may not be able, on
such short notice, to assimilate the information into their case. Id.
Further, “[t]he more a piece of evidence is valuable and rich with
potential leads, the less likely it will be that late disclosure provides the
defense an ‘opportunity for use,’” DiSimone v. Phillips, 461 F.3d 181,
197 (2d Cir. 2006), i.e., “the opportunity for a responsible lawyer to use
the information with some degree of forethought.” Leka, 257 F.3d at
103.
Miller, 14 A.3d at 1111-12.
d) Moreover, the court in Miller recognized that counsel cannot be expected
to incorporate Brady information on the fly at trial. The issue in Miller
was whether the defense should have been able to connect information
disclosed as Jencks that the shooter was left handed to an alreadydisclosed videotape of an interview with a witness and potential alternate
suspect, showing him signing his waiver-of-rights card with his left hand.
The court explained that
“[O]nce trial comes, the prosecution may not assume that the defense is
still in its investigatory mode.” [Leka, 257 F.3d] at 100. As the
Supreme Court observed in Banks, 540 U.S. at 695, 124 S. Ct. 1256,
“[o]ur decisions lend no support to the notion that defendants must
scavenge for hints of undisclosed Brady material when the prosecution
represents that all such material has been disclosed.” To adapt slightly
language from the court's opinion in Leka, “the prosecution is in no
position to fault the defense for [not spotting the evidence on the

37

videotape in time] when the prosecution itself created the hasty and
disorderly conditions under which the defense was forced to conduct its
essential business.”
Id. at 1113.
B. The defense should argue that “timely pretrial disclosure” requires, at least as a
default, disclosure early in the life of a case – within weeks of arraignment.
Given that timeliness is viewed from the perspective of the defense’s ability to make
meaningful use of the information, see V.A supra, the defense view of when it needs
Brady information should carry great weight. Indeed, in Zanders, the Court of Appeals
indicated that the defense’s view of when it needs Brady information in an individual
case should be dispositive and that the prosecution should disclose Brady information
“well before the scheduled trial date . . . upon request by the defense.” 999 A.2d at 164.
The defense should press for disclosure within weeks of arraignment and, in addition to
fact-specific arguments as to why such a schedule is warranted, it may justify this request
on the following grounds:
1. Early-in-the-case disclosure accommodates the reality that it takes time “to
investigate the facts of the case and . . . craft an appropriate defense,” Perez, 968
A.2d at 66 – work that cannot be done on the eve of trial, as the Court of Appeals and
others have acknowledged.
a. As noted above the Court of Appeals in Perez, Zanders and Miller have made
clear Brady disclosures must be made early in the life of a case to permit
meaningful use. Similarly, in Sykes v. United States, 897 A.2d 769, 781 (D.C.
2006), the Court held that the government should have revealed the identities of
exculpatory witnesses “to the defense shortly after their 1996 grand jury
appearance” when the government first learned they possessed information
favorable to the defense; the court found this would have given the defense “an
opportunity to interview them, and to conduct additional pre-trial investigation . . .
based on those interviews.” (emphasis added).
b. Beyond the Court of Appeals, the Second Circuit’s opinion in Leka v. Portuondo,
257 F.3d 89 (2d Cir. 2001),24 cited by the Court of Appeals in Miller, has an
excellent discussion of why the defense needs Brady information sooner rather
than later. See also United States v. Snell, 899 F. Supp. 17, 20 (D. Mass. 1995)
(“Exculpatory information affects the defense investigation, how it will allocate
its resources, the voir dire questions the defense will seek, the framing of opening
statements, the nature of the pre-trial research on evidentiary issues and jury
instructions, in short, all of the strategic decisions which must be made long in
advance of trial.”).

24

Judge Jacobs wrote the opinion in Leka on behalf of a panel that included himself, Judge
Parker and now-Justice Sotomayor.

38

2. Early-in-the-case disclosure is consistent with “the ABA standards for Criminal
Justice, The Prosecution Function, which directs that ‘disclosure of exculpatory
information is to be made at the earliest feasible opportunity’ and ‘as soon as
practicable following the filing of charges’” and which were favorably cited by the
Court of Appeals in Miller, 14 A.3d at 1108; see also id. at n.16 (quoting the Supreme
Court’s observation in Padilla v. Kentucky, 130 S. Ct. 1473, 1482 (2010) that the
ABA standards capture the “prevailing norms of practice” and “are guides to
determining what is reasonable”).
3. Early-in-the-case disclosure is consistent with other local rules25 that federal
prosecutors operate under around the country. 26
25

See, e.g., M.D. ALA. Standing Order on Criminal Discovery § (1)(B)&(C) (requiring
disclosure of “Brady” and “Giglio” material “at arraignment, or on a date otherwise set by the
Court for good cause shown”); S.D. ALA. L. R. 16.13 § (b)(1)(B)&(C) (same); D. Conn. L. Crim.
R. Appx.§ (A)(11) (requiring disclosure of “[a]ll information known to the government which
may be favorable to the defense” within 10 days of arraignment); N.D. FLA. L. R.
26.3(D)(1)&(2) (requiring disclosure of “Brady” and “Giglio” material within 5 days of
arraignment “or promptly after acquiring knowledge thereof”); S.D. FLA. L. Crim. R.
88.10(C)&(D) (requiring disclosure of Brady and Giglio information); id. 88.10(Q)(2) (requiring
discovery in connection with trial not later than 14 days after arraignment); S.D. GA. L. Crim. R.
16.1(f) (requiring disclosure of “any evidence favorable to the defendant” within 7 days of
arraignment); D. NEV. L. Crim. R. 16-1 (requiring disclosures required by the Constitution
within 5 days of filing the Joint Discovery Statement (to be filed within 5 days of arraignment));
E.D. N.C. L. Crim. R..16.1 (b)(1)(7) (requiring disclosure of all “exculpatory evidence” at
pretrial conference which must be held within 21 days of indictment or initial appearance); W.D.
OK. L. Crim. R. 16.1 & Appx. V (requiring counsel to hold discovery conference within 14 days
after a plea of not guilty is entered and to file within 7 days of conference a joint statement that
complies with form in appendix; joint statement form requires certification of the fact of
disclosure of “all materials favorable to the defendant or the absence thereof within the meaning
of Brady . . . and related cases”); W.D. PA. L. R.16.1 (requiring disclosure of “exculpatory
evidence” at the time of arraignment); M.D. Tenn. L. Crim. R. 16.01(d) (requiring disclosure
within 14 days of arraignment, all information “favorable to the defendant on the issues of guilt
or punishment within the scope of Brady . . . and Agurs”); W.D. TEX. L. Crim. R. 16(b)(1)(c)
(requiring government to provide discovery “in connection with trial . . . not later than 14 days
after arraignment”; discovery checklist includes exculpatory and impeachment information);
W.D. WASH. L. Crim. R. 16(a)(1)(K) (requiring disclosure of evidence favorable to defendant
and material to guilt or punishment to which he is entitled under Brady . . . and Agurs” within 14
days of arraignment); S.D. W. VA. L. Crim. R. Standard Discovery Request Form III.1(H) & 2
(requiring disclosure of “all favorable evidence to the defendant, including impeachment,”
within 14 days of filing Standard Discovery Request Form (filed at arraignment)); see also D.
E.D. OK. L. Crim. R. 16. 1 & Disclosure Agreement Checklist (“it is anticipated that the
government will provide discovery to the Defendant contemporaneously with arraignment”;
Disclosure Agreement Checklist includes “exculpatory” and “impeachment” material); D. ID.
General Order No. 242 § I.5.A-C. (“strongly encourage[ing] the government to produce” within
7 days of arraignment “all material evidence within the scope of Brady,” all Giglio information,
and the criminal record of any government witnesses).

39

4. Early-in-the-case disclosure is consistent with the government’s policy.
a. The government’s policy acknowledges that “[p]roviding broad and early
discovery often promotes the truth-seeking mission of the Department and fosters
a speedy resolution of many cases.” USACRM, Section 165, Step 3.A.
b. Both the DAG Guidance Memo and the U.S. Attorney’s Manual specify that all
exculpatory information should be disclosed “reasonably promptly after
discovery.” DAG Guidance Memo, Step 3.B.; USAM § 9-5.001.D.1 (same).
NB: The government’s policy specifies separate timing requirements for the
disclosure of impeaching information. DAG Guidance Memo, Step 3.B
(impeaching information “will typically be disclosed at a reasonable time before
trial to allow the trial to proceed efficiently”).

26

Although a number of jurisdictions distinguish between the timing of disclosure of
“excuplatory” and “impeachment” information, disclosure of impeaching information is still
required well in advance of trial. D. MASS. L. R. 116.1 &116.2 (requiring disclosure of
exculpatory information within 28 days of arraignment and disclosure of impeachment
information no later than 21 days before trial); D. N.H. L. Cr. R. 16.1(d) (requiring disclosure of
“any evidence material to issues of guilt or punishment within the meaning of Brady . . . and
related cases” and any impeachment material as defined in Giglio . . . and related cases . . . at
least” 21 days before trial); N.D.N.Y. L. R..14.1 (requiring disclosure of Brady information 14
days after arraignment and Giglio information no less than 14 days prior to jury selection); D.
VT. L. R.16.1(a)(2) & (d)(1) (requiring disclosure of Brady information within 14 days of
arraignment and Giglio information no later than 14 days before trial); N.D. W.VA. L. Crim. R.
16.01(b)&(d), 16.05 & 16.06 (requiring disclosure of Brady within 10 days of filing Standard
Discovery Request Form (filed at arraignment), and disclosure of Giglio information no later
than 14 days before trial); See, e.g., United States v. Rodriguez, 2008 CR 1311, 2009 WL
2569116, *12 (S.D.N.Y. 2009) (court ordered government to turn over “Giglio material . . .
twenty-one days before the commencement of trial”); United States v. Lekhtman, 2008 CR 508,
2009 WL 5095379, *1 (E.D.N.Y. 2009) (government ordered to turn over “Giglio material . . .
two weeks before the commencement of trial”); United States v. Martinez-Martinez, 2001 CR
307, 2001 WL 1287040, *5 (S.D.N.Y. 2001) (ordering disclosure of “Giglio material. . . not
later than fourteen days before trial” to “ensure that the defendants have sufficient time to make
effective use of . . . [it and to] enable the parties and the Court to proceed to trial without undue
delay or unnecessary continuances.”); United States v. Johnson, 2008 CR 285, 2010 WL 322143,
*9 (W.D. Pa. 2010) (court ordered government to “disclose all Brady impeachment material . . .
no later than ten days prior to trial”); cf. United States v. McNeil, 2009 CR 320, 2010 WL 56096,
*5 (M.D. Pa. Jan. 5, 2010) (rejecting government’s proposal to delay disclosure of impeachment
material until 72 hours before trial, noting that the government had provided “no reason why the
relevant material could not be provided immediately,” and that “[s]uch information may require
more than three days for the defendant to examine and make use of”).

40

c. The Government’s policies require not only early disclosure promptly upon
learning of information, but they require supervisory approval and notice to the
defendant if disclosure is to be delayed. USAM § 9-5.001.D.4.
NOTE: D.C. R. Prof. Conduct 3.8, Special Responsibilities of a Prosecutor would also
seem to support early-in-the-case disclosure because it requires “upon request”
disclosure. But as noted above, the comment to the rule states that the rule is not
intended to increase the prosecutor’s obligations beyond those required by the
constitution, statute, or local court rules. So the rule itself provides no independent
grounds for early-in-the-case disclosure.
C. The defense may want to ask the trial court to issue a Brady scheduling order that
requires the prosecution to turn Brady information by a date certain and for any
later acquired information, promptly upon discovery.
1. The Court of Appeals has made clear that timing of Brady disclosures is critical,
Curry v. United States, 658 A.2d 193, 197 (D.C. 1995) (“a prosecutor’s timely
disclosure obligation with respect to Brady material cannot be overemphasized”)
(internal quotation and citation omitted), thus warranting judicial oversight. See
Boyd, 908 A.2d at 59 (observing that “courts have the obligation to assure that
[prosecutorial discretion in making Brady disclosures] is exercised in a manner
consistent with the right of the accused to a fair trial”); see also id. at 57 (the “practice
of delayed production must be disapproved and discouraged.”).
2. The trial court unquestionably has the authority to issue a Brady scheduling order
pursuant to its case management authority as well as its obligation to oversee Brady
disclosures and to ensure a defendant’s effective representation of counsel. See
VII.A.3 infra.
3. Other jurisdictions in which federal prosecutors practice have such deadlines. See
V.C.3 supra (discussing other jurisdictions with deadlines set by local rule or
standing order).
4. A huge potential benefit from issuing a Brady scheduling order is conservation of
judicial resources – the bulk of Brady litigation stems from disagreement or
misunderstanding about what the prosecution’s due process duty is. There will be no
such disagreement or misunderstanding, if the Court has ordered production pursuant
to a set schedule.
D. Whether or not the trial court issues a scheduling order, the prosecution cannot
make unilateral decisions to delay disclosure of Brady information until the eve of
trial.
1. Where Brady compels disclosure, a prosecutor should seek court’s permission to
limit/delay disclosure.
a. Boyd, 908 A.2d at 61 (generally affirming trial court’s oversight power over
Brady disclosures); DAG Guidance Memo Step 3.A. (noting that when

41

“considerations [militating against disclosure] conflict with the[ir] discovery
obligations, prosecutors may seek a protective order from the court addressing the
scope, timing, and form of disclosures.”).
b. As one District Court judge explained, when the government “elect[s] to
prosecute defendant . . . [the] defendant’s due process rights bec[o]me dominant.”
United States v. Feeney, 501 F. Supp. 1324, 1325 (D. Colo. 1980). The
prosecution “can, if it wishes, dismiss th[e] case, but so long as [the trial court]
must decide the defendant’s fate,” it has an obligation to “provide [the defendant
with all of the rights . . . [that] are guaranteed him by the Constitution and by the
United States Supreme Court.” Id.
2. In particular, witness-safety concerns should be reviewed by a trial court.
a. The Court of Appeals has acknowledged that in a small subset of cases it may be
appropriate for the government to delay disclosure of Brady information “to
protect the safety of witnesses” but has noted that even in such cases “defense
counsel [must be] afforded sufficient time to consider any leads and to make use
of exculpatory evidence.” Miller, 14 A.3d at 1111 n.20.
b. But, to justify such a delay, the government must have “substantiated grounds
to fear witness intimidation or risk to the safety of witnesses.” Zanders, 999
A.2d at 164 (emphasis added).
c. The prosecution should be required to present those “substantiated grounds” to
the trial court.
1) This rightly makes early disclosure the default, preserves judicial oversight
over Brady disclosures, see Boyd, 908 A.2d at 59, 61 (generally affirming trial
courts’ oversight power over Brady disclosures), and precludes the
government from using the rare case of witness intimidation as a blanket
justification for delayed disclosure in every case.
2) This is the practice in federal court. See United States v. Edelin, 128
F.Supp.2d 23, 30-31 (D.D.C. 2001) (delay in production of Brady information
justified where the government “proffer[ed] examples of other known
attempts made by the defendants and their associates to interfere with the
judicial process,” and thus established by a preponderance of evidence that
earlier disclosure of this information might jeopardize witness safety); Snell,
899 F. Supp. at 20 n.5 (noting that the government’s anticipated concerns
about witness safety “can be dealt with in motions for protective orders or
motions for exemption from pretrial disclosure,” on a case-by-case basis).
3. Even if the government can “substantiate” security concerns, the defense may want to
counter:

42

a. That any security concerns will eventually have to be dealt with at trial, and that,
to accommodate the defendant’s due process rights, the prosecution must deal
with them now;
b. If any delay is in fact justified, it should be clearly delineated (not left to the
prosecution’s discretion) and brief, see Miller, 14 A.3d at 1111 n.20;
c. If any delay is in fact justified, the trial date should likewise be adjusted (if this is
in the client’s best interest).
4. As an alternative to delayed disclosure, counsel may want to propose a protective
order narrowly tailored to any legitimate security concern.
a. For example, security concerns from general disclosure, should not preclude
disclosure to the defendant and his legal team.
b. Although far from ideal, there should never be a basis for the government to
object to protective order that limits the scope of a Brady disclosure to defense
counsel.
E. If despite the defense’s best efforts to obtain timely access to Brady information,
the prosecution produces this information late – at or on the eve of trial – the
defense must make a record of prejudice from that delay.
1. Where a Brady claim is premised on delayed disclosure of information, “the
defendant must show prejudice from the delay itself.” Miller, 14 A.3d at 1094.
2. Thus, when litigating a belated disclosure, is it important to develop a narrative
about what specifically would have been done if the information had been
produced earlier and why the incentive to look for similar information might not
have been apparent or of the same priority. See V.A. supra. For example, as a
result of late disclosure, the defense
a. May have “abandon[ed] lines of independent investigation, defenses, or trial
strategies that it otherwise would have pursued,” Bagley, 473 U.S. at 682;
b. Lost access to witnesses. Sykes, 897 A.2d at 777-78; see also United States v.
Fisher, 106 F.3d 622, 634-35 (5th Cir. 1997) (late disclosure deprived
defendant the opportunity to depose the author of a report that contradicted a
government witness and to prepare strategy and testimony appropriately);
c. Or simply have been unable to capitalize on evidence that would have
reinforced the defense’s theory of the case. Miller, 14 A.3d 1094; United
States v. Washington, 263 F.Supp.2d 413, 422 (D. Conn. 2003) (because of
belated Brady disclosure, “there was no opportunity for the defense to weave
[prosecution witness’] conviction into its overall trial strategy.”).

43

3. Because it may be difficult on the eve or in the midst of trial to fully appreciate
how a belated Brady disclosure impaired the defense, counsel should consider
filing a post-trial motion to flesh out the record. See, e.g., Washington, 263
F.Supp.2d at 420 (Brady violation found where government withheld prior
conviction of witness until first day of trial and defense investigator submitted an
affidavit to trial judge stating that he was helping for trial and thus could not
investigate the prior conviction but that, after trial, he had been able to investigate
the prior conviction which had led him to more relevant impeachment
information).
F. The Prosecution’s obligation to disclose Brady information extends beyond trial.
1. Throughout the trial and at least until a conviction is final, the Government’s duty
to disclose exculpatory evidence is unchanged. Barnes v. United States, 760 A.2d
556, 562 (D.C. 2000) (court states that it “would expect [the government] to
disclose . . . [Brady] information to the defense – now [on appeal] as then”
because “the government’s obligation to disclose exculpatory evidence under
Brady is continuous”).
2. In District Attorney’s Office for the Third Judicial District v. Osborne, 129 S. Ct
2308 (2009), the Supreme Court indicated that the government does not have a
continuing Brady obligation after a defendant’s conviction has been affirmed on
appeal (or the time to appeal has lapsed) and his conviction has become final. In
Osborne the Court had been asked to determine if a habeas petitioner whose
conviction had been affirmed decades earlier had a constitutional right to postconviction DNA testing. The Court reasoned that Brady provided no support for
such a constitutional right, and that “once a defendant has been afforded a fair
trial and convicted. . . the presumption of innocence disappears.” 129 S. Ct. at
2320 (internal quotation and citation omitted). Osborne may shield the
prosecution from a constitutional post-conviction obligation to develop and
disclose new exculpatory information, but it did not address the circumstance
where the government comes into possession of such information – or has had
exculpatory information in its possession all along, which would clearly call into
question the fairness of a defendant’s trial.
VI.

IN WHAT FORM MUST THE PROSECUTION MAKE BRADY DISCLOSURES?
A. Brady is not a rule of discovery BUT the format in which information is disclosed is
critical to fulfilling its due process guarantee.
1) Unlike Rule 16 or Jencks, “Brady is not a discovery rule but a rule of fairness and
minimum prosecutorial obligation.” Miller, 14 A.3d at 1107 (quoting Curry v. United
States, 658 A.2d 193, 197 (D.C. 1995)). It does not require the production of specific
documents. It requires the production of information. See II supra.
2) That said, form matters just as much as properly identifying what is favorable
information and timely disclosing that information. If the prosecution defines what is

44

Brady too narrowly, if it turns over Brady information too late, or if it gives only the
most skeletal summary disclosure (particularly while it withholds names and/or
contact information) – there is a real danger that the defense will not be able to make
meaningful use of the information and consequent possibility of a miscarriage of
justice.
a. The key in fulfilling the due process mandate of Brady is the “sufficiency, under
the circumstances, of the defense’s opportunity to use the [Brady information]
when disclosure is made.” Miller, 14 A.3d at 1111; Perez 968 A.2d at 66 (“the
due process obligation under Brady to disclose exculpatory information is for the
purpose of allowing defense counsel an opportunity to investigate the facts of the
case and, with the help of the defendant, craft an appropriate defense.”).
b. It is simply inevitable that when documents or recordings are summarized, detail
and nuance are lost. The power of a statement comes from the context in which it
is given, the precise wording of the question asked, and the answer given.
1) In Kyles, for example, the force of the “many inconsistencies and variations
among Beanie’s [undisclosed] statements” came from the statements
themselves, 514 U.S. at 430; the Court specifically noted that Kyle’s had been
prejudiced because he had been precluded from “expos[ing the jury] to Beanie’s
own words.” Id. at 449 n.19 (emphasis added).
2) See also Wiggins v. United States, 386 A.2d 1171, 1178 (D.C. 1978) (Ferren,
J. concurring) (“[t]he fact that the government told [the defense] the names of
grand jury witnesses and summarized their testimony did not necessarily meet
defendant’s needs. . . . we [cannot] assume that the prosecutor summarized the
grand jury statements with every detail that might have been relevant to
defense counsel’s preparation as counsel viewed the case.”).
c. Summaries cannot be used at trial for impeachment or if a witness unexpectedly
becomes unavailable.
B. At a minimum, the government is required to make Brady disclosures that are
“sufficiently specific and complete” to permit effective use by the defense. United
States v. Rodriguez, 496 F.3d 221, 226 (2d Cir. 2007).
1. Court of Appeals’ precedent demonstrates that the prosecution must make sufficiently
specific and complete disclosures. For example,
a. In Zanders v. United States, 999 A.2d 149 (D.C. 2010), the Court of Appeals
determined that the prosecution’s summary disclosure did not satisfy the
government’s pretrial disclosure obligations under Brady:
1) The prosecutor had provided the defense a summary disclosure stating that:
[Attorney] Betty Ballester represents an individual who was interviewed by
the [MPD] [who said that] . . . [Allen] Lancaster was involved in some sort of
altercation/argument with [Shawn] LNU in the days immediately preceding

45

his murder. This information was investigated and found to have no bearing
on the case. Therefore the government does not believe this information is in
any way Brady material. However, I am disclosing it now in an excess of
caution.
Brief for Appellee, Thomas Zanders v. United States, District of Columbia Court
of Appeals No. 05-CF-246 at 58. The summary disclosure did not reveal
“significant exculpatory information,” id. at 163, contained in the notes of the
witness interview, namely, that the altercation had taken place in the exact
location of the decedent’s shooting the following night. 999 A.2d at 161
2) The Court of Appeals concluded that the prosecution’s summary Brady
disclosures were “incomplete and late,” id. at 164; see also id. (admonishing
that “[a]ny doubts [regarding Brady disclosures] should be resolved in favor
of full disclosure made well before the scheduled trial date”) (emphasis
added).
3) The Court declined to reverse in the absence of a showing of prejudice.
b. In Mackabee v. United States, 29 A.3d 952 (D.C. 2011) the Court of Appeals held
that the prosecution had not timely disclosed all the information it should have
pretrial.
1) The court reviewed whether the government had fulfilled its Brady obligations
where it disclosed a year before trial notes documenting a description of the
shooter that did not match the defendant but withheld until a week before trial
the full transcript of the videotaped interview with the witness who provided
this description, and where it disclosed a year before trial notes indicating that
another witness had failed to identify the defendant in a photo array, but
withheld until weeks before trial information that the witness had stated that
two other people in the array looked like the shooter.
2) The Court firmly rejected the argument that the videotaped interview was only
“potentially exculpatory” and thus did not need to be disclosed pretrial. Id. at
n.11 (“We are at a loss to understand this reasoning.”).
3) The Court also held that the verbatim statements of the witness who had
viewed the photo array was “evidence of a kind that would suggest to any
prosecutor that the defense would want to know about it.” Id. at 962 (internal
quotation omitted).
4) The Court concluded that the defense was not prejudiced by the prosecution’s
delay in making full Brady disclosures. Id. at *958-963.
c. By contrast, in Matthews v. United States, 629 A2.d 1185 (D.C. 1993) and
Wiggins v. United States, 386 A.2d 1171 (D.C. 1978), the Court of Appeals held
that the prosecution had fulfilled its Brady obligations where the prosecutor
“explained to appellant exactly what the [exculpatory] statement said,” Matthews,
629 A.2d at 1199 (emphasis added), and where the prosecutor disclosed the Grand

46

Jury testimony containing Brady information “substantially verbatim.” Wiggins,
386 A.2d at 1173 (emphasis added).
2. Other federal courts have likewise found that the government violated its Brady
obligations where it provided the defense with inadequate summary Brady
disclosures.
a. In the government’s failed prosecution of Senator Stevens, Judge Sullivan found
that “the use of summaries” for disclosure of favorable information created “an
opportunity for mischief and mistake,” and was a significant contributor to the
government’s Brady misfeasance in that case. United States v. Stevens, Docket
No. 08-231, Tr. 4/7/09 at 8-9 (on file with PDS).
b. See also Leka, 257 F.3d at 103 (government violated Brady where it “failed to
make sufficient disclosure in sufficient time to afford the defense an opportunity
for use”); United States v. Service Deli, 151 F.3d 938, 942-44 (9th Cir. 1998)
(Brady violation when government produced mere summaries of interviews
instead of the actual interview notes); Jean v. Rice, 945 F.2d 82, 85-87 (4th Cir.
1991) (withheld audio tapes of hypnosis of key witnesses was Brady violation
even though the fact of the hypnosis was disclosed because the audio tapes would
have been much stronger and more persuasive physical evidence going toward
impeachment).
3. The government has conceded in litigation that its Brady obligations “do include a
fairly precise identification of what the information is and the source of the
information” United States v. Jonathan Phillips, 2008 F 21826, Tr. 4 (D.C. Super.
7/1/09).
C. Government’s own policy acknowledges original format is best:
1. The government’s policy correctly assumes that the best way for the government to
provide sufficiently specific and complete Brady disclosures is to provide the defense
with “information in its original form.” DAG Guidance Memo Step 3.C.
2. The government’s Brady policy notes that in some cases this may be “[in]advisable,”
but warns that if disclosure “is not provided in its original form . . . prosecutors should
take great care to ensure that the full scope of pertinent information is provided to the
defendant.” Id.
D. To make sufficiently specific disclosures prosecutors must disclose the names and
contact information for Brady witnesses.
1. At least two Superior Court judges have ruled that the government typically must
disclose names and contact information for Brady witnesses.
a. In United States v. Dominick Payne, 2010 CF1 2883, Judge Fisher held that the
USAO could not satisfy its Brady disclosure obligations by unilaterally deciding

47

to make anonymous witnesses available to the defense for an interview at the US
Attorney’s office:
1) In Payne, the government explained that it had “contacted . . . the witness[]
and I asked them their preference, whether or not we would set up a meeting
at the US Attorney’s Office, [or] whether they would prefer I provide their
name and contact information.” Tr. 4/8/11 at 13.
2) The court responded “that’s not what you’re required to do. If you have a
witness who has exculpatory material, you have to turn it over. If there’s a
danger, you legitimately believe that there’s a risk of danger to them, then you
bring it to the Court’s attention and then maybe some sort of secondary
circumstance is arrived at. But you just don’t have the right to sort of
determine where under what circumstances they’re going to be interviewed. . .
that’s not what Brady I think commands. So I think you have to provide the
information so they can try to talk to them individually.” Tr. 4/8/11 at 14-15.
The Court subsequently reiterated that ‘[m]y viewpoint on this . . . is if there
are legitimate safety concerns about witnesses, I think the government should
then bring those to my attention. I can determine whether I agree with that.”
Id. at 18.27
3) The court also rejected the government’s argument that it had made sufficient
disclosure of contact information because the defense had the anonymous
Brady witness’ cell phone number (but not her name or address). The court
ruled that the government had to “give [the defense] whatever contact
information you have.” Tr. 4/8/11 at 15.
b. In United States v. Burts, 2010 CF1 7811, Judge Leibovitz likewise
acknowledged that disclosure of name and contact information is required in the
typical case:
1) The court acknowledged that: “the whole point of Brady disclosure is, one
way or another, A, that witness has to be available to the defense to present
that witness’ testimony at trial, if that’s what they want; and B, the defense
has to be in a position to use whatever investigative leads it wants to and is
capable of using, if that’s what they want to do. Tr. 4/18/11 at 3.
2) However because the “government ha[d] proffered to me [a] very specific
basis for believing that there are security concerns of this particular
individual,” Tr. 4/18/11 at 11, the court found that this was not the typical
case.

27

As far as safety concerns, neither the fact that the Brady witness was “a young woman who
resides with her parents” who had “general concerns” about the disclosure of her identity and nor
the fact that her parents “are concerned” was a sufficient basis for the Court to endorse the
withholding of identifying or contact information in this case. Id. at 16.

48

3) Even so the court “hesitate[d] to order the defense to stand down and let you
serve the witness” because in so doing the court would “have failed to put in
the defense hands the very information that Brady disclosure puts in their
hands” Tr. 4/18/11 at 12.
4) Ultimately the issue mooted out, because counsel, who was sensitive to these
concerns and did not want to give the witness further cause for anxiety, did
not press for contact information. Thus even though the government agreed to
provide the defense with contact information pursuant to a protective order,
id. at 5, counsel instead agreed to allow the government to put the witness
under subpoena. Id. at 14. Even so, Judge Leibovitz ordered the government
to disclose contact information for the Brady witness to the defense if the
government was unable to put the witness under subpoena by the end of the
day. Id. at 12-14, 17.
2. The Court of Appeals has never directly addressed this issue, but has repeatedly
indicated that the government must disclose identifying information of Brady
witnesses.
a. See Kerry J. Jackson v. United States, 650 A.2d 659, 661 n.4 (D.C. 1994) (noting
that the government had “wisely conceded . . . that, by failing to reveal the
identity of a potentially important exculpatory witness, it violated both the letter
and the spirit of Brady”); Wiggins, 386 A.2d at 1173 (holding that the government
had properly discharged its Brady obligation where it, inter alia, “disclosed to the
defense the identity of witnesses whose grand jury testimony might be
favorable”); John L. Jackson v. United States, 329 A.2d 782, 788 (D.C. 1974)
(observing that Brady v. Maryland “would seem to require that the prosecutor
provide the names of exculpatory witnesses upon request” but withholding in this
case was harmless error).
b. In Johnson v. United States, 980 A.2d 1174, 1188 n. 4 (D.C. 2009), the
government “point[ed] out in its brief” that it had disclosed favorable information
without identifying the source, apparently as a basis for arguing that it had
fulfilled its Brady obligations. But the Court, having explicitly noted this
argument, conspicuously declined to adopt it as a reason for rejecting the
appellants’ Brady claim.
3. Disclosure of identifying information is compelled by Supreme Court and Court of
Appeals precedent.
a. As the Court of Appeals has made clear, the key to fulfilling the mandate of
Brady is ensuring the defense’s opportunity to use favorable information; but the
defense cannot meaningfully use favorable information if it does not know its
source.
b. At a minimum, the defense cannot assess the value of the Brady information in a
witness’ possession without knowing who the witness is, what his basis of

49

knowledge is, and what biases he has. As the Supreme Court explained in Smith
v. Illinois, 390 U.S. 129, 131 (1968), “when the credibility of a witness is in issue,
the very starting point in exposing falsehood and bringing out the truth . . . must
necessarily be to ask the witness who he is and where he lives.” See also id. at
132 (internal quotation and citation omitted) (“Prejudice ensues from a denial of
the opportunity to place the witness in his proper setting and put the weight of his
testimony and his credibility to a test, without which the jury cannot fairly
appraise [the facts of the case].”).28
c. Without a Brady witness’ name the defense cannot conduct its own investigation
or place the witness under subpoena and thereby ensure that he or she appears in
Court.
1) As Chief Judge Satterfield noted, one of the dangers when the government
keeps “under wraps” the identities of “witnesses who are exculpatory, or who
may give exculpatory information” is that “you get in this posture where you
lose track of the witness and the defense has never had an opportunity to really
track them down.” United States v. James Carter, 2006 CF1 10651, Tr.
10/16/06 at 4.
2) This is precisely what happened in Sykes v. United States, 897 A.2d 769, 77376 (D.C. 2006) where the government, which had no interest in calling the
Brady witnesses in its case-in-chief, delayed disclosure of their existence until
the eve of trial by which time neither the government nor the defense could
locate them. See also Curry, 658 A.2d at 196-98 (government conceded and
the Court held that the Government had violated its duty of disclosure where
prosecution withheld for over a year and failed to disclose until two days
before trial the fact that on the night of the charged murder, an eyewitness gave
a description of the shooter that did not match the defendant, by which time the
witness could not be found).
d. Allowing the government to withhold the names of Brady witnesses denies the
defense equal access to Brady witnesses. The law is clear that witnesses to a
crime do not belong to the prosecution; rather, as the court acknowledged in
Gregory v. United States, 369 F.2d 185, 188 (D.C. Cir. 1966), “[b]oth sides have
an equal right, and should have an equal opportunity, to interview them.” This is

28

The Court in Smith addressed the defendant’s right to obtain a witness’ name and address in
the context of a defendant’s right to confrontation, but the same analysis applies to a Brady
witness who, if sponsored by the defense, would be subject to cross-examination and potential
impeachment by the prosecution. Defense counsel must fully investigate that witness to
determine, for example, if anyone else saw or was with the witness who corroborates or
contradicts the witness, or if the witness has a history of substance abuse or a criminal record
with which he could be discredited. Id. at 131 (“The witness’ name and address open countless
avenues of in-court examination and out-of-court investigation.”).

50

certainly no less true when those witnesses possess information that is material
and favorable to the defense. 29
e. Disclosing the names of Brady witnesses does not implicate limits on requiring
the prosecution to disclose its witnesses. See Will v. United States, 389 U.S. 90,
101 (1967) (“The reason for requiring disclosure of their names . . . is not that
they will or may be witnesses, but that defendant requires” this information “in
order to prepare his defense.”) (internal quotation and citation omitted).
f. See, e.g., United States v. West, 790 F. Supp. 2d 673 (N.D. Ill. 2011) (holding that
Brady required government to disclose contact information of Brady witnesses).
VII. PRETRIAL ORDERS, REMEDIES, AND NEW LINES OF DEFENSE.
A. Pretrial Orders:
In the wake of the well-publicized Brady violations in the prosecution of Senator Stevens,
United States District Court Judge Emmet Sullivan called on his “judicial colleagues on
every trial court everywhere . . . to consider entering an exculpatory evidence order at the
outset of every criminal case.” United States v. Stevens, 2008 CR 231, Tr. 8 (4/7/09).30
29

That Brady requires the disclosure of identifying and contact information is further evident
from case law discussing when the government must disclose such information for confidential
informants who possess inculpatory information. Prior to its decision in Brady, the Supreme
Court in Rovario adopted a balancing test to determine when the government must disclose the
identity of an informant, weighing “the public interest in protecting the flow of information
against the individual’s right to present a defense.” Rovario v. United States, 353 U.S. 53, 62
(1957). But the Court also noted that the government’s “privilege” to keep secret the identity of
a confidential informant “gives way” where the informant possesses “information [that] is
relevant and helpful to the defense of an accused or [that] is essential to a fair determination of a
cause.” Id. at 60-61; see also id. at 64 (determining that access to identifying information was
required in a drug case because the informant “might have” provided information supporting a
defense of entrapment, or “might have thrown doubt on petitioner’s identity or on the identity of
the package”). The Court’s subsequent decision in Brady, requiring the government to disclose
all favorable and material information to the defense, Brady v. Maryland, 373 U.S. 83, 87
(1963), only expanded what must be disclosed to the defense pursuant to the same “the
fundamental requirements of fairness,” Rovario, 353 U.S. at 60, and necessarily requires the
disclosure of the Brady witness’ identifying and contact information.
30

After the Stevens case was dismissed, the Court appointed a special prosecutor, Henry F.
Schuelke to investigate the government’s misconduct. Mr. Scheulke recently completed his
investigation and “concluded that the investigation and prosecution of Senator Stevens were
“permeated by the systematic concealment of significant exculpatory evidence.” United States v.
Stevens, 2008 CR 231, Order dated November 21, 2011, at 4 (internal quotation and citation
omitted). Mr. Scheulke detailed his findings in a 500 page report, filed under seal, which has yet
to be released to the public. Id.; see also http://legaltimes.typepad.com/blt/2011/11/judge-tedstevens-investigation-reveals-prosecutorial-misconduct.html (last accessed December 4, 2011).

51

1. Rationale: As the Court of Appeals recognized in Boyd, “the most effective
mechanism for enforcing the due process rights of criminal defendants and avoiding
the needless expenditure of judicial resources is to require strict compliance with the
demands of Brady . . . in the first instance[.]” 908 A.2d at 63 (emphasis added).
a. A pretrial Brady order clarifies obligations by providing the government with a
checklist and/or a timetable to follow in making its Brady disclosures.31
b. In so doing, a pretrial Brady order promotes fairness and confidence in the courts.
1) The failure to timely and completely disclose information that is favorable and
material to a defendant not only undermines the fundamental fairness of his
particular prosecution and the legitimacy of any conviction, but also calls into
question the validity of the criminal justice system as a whole.
2) As the government itself has recognized,
Any discovery lapse, of course, is a serious matter. . . . [E]ven isolated lapses
can have a disproportionate effect on public and judicial confidence in
prosecutors and the criminal justice system. Beyond the consequences in the
individual case, such a loss in confidence can have significant negative
consequences on our effort to achieve justice in every case.
David W. Ogden, Deputy Attorney General, Memorandum for Department
Prosecutors dated January 4, 2010 re: Issuance of Guidance and Summary of
Actions Taken in Response to Report of the Department of Justice Criminal
Discovery and Case Management Working Group.32
Despite his conclusion that the prosecution had concealed Brady information, and that
some of this concealment was willful, Mr. Scheulke did not recommend prosecution of the
government attorneys for criminal contempt. Mr. Scheulke reasoned that to prove criminal
contempt, “the contemnor must disobey an order that is sufficiently ‘clear and unequivocal at the
time it is issued.’” Id. at 4. In the Stevens case, however, no such order was given; “[r]rather,
the Court accepted the repeated representations of the subject prosecutors that they were familiar
with their discovery obligations, were complying with those obligations, and were proceeding in
good faith.” Id. at 4-5.
31

To the extent the government’s new policy reforms provide prosecutors with better guidance
regarding their Brady obligations, they still do not obviate a court order since they are wholly
unenforceable. The DAG Guidance Memo, like the revisions to USAM before it, specifically
states that it “is not intended to have the force of law or to create or confer any rights, privileges,
or benefits.” DAG Guidance Memo, Introduction; see also USAM § 9-5.001.E (USAM Brady
policy “does [not] provide defendants with any additional rights or remedies”); cf. Jones, 620 F.
Supp.2d at 173 (quoting from 2007 Report to the Advisory Committee on Criminal Rules, n.4
infra, which, for this reason, recommended a revision to Rule 16 even after the USAM
revisions).
32

Available at http://www.justice.gov/dag/dag-memo.html.

52

c. A pretrial Brady order also promotes judicial efficiency.
1) Just as “[p]roviding broad and early discovery . . . promotes the truth-seeking
mission of the Department [of Justice] and fosters a speedy resolution of many
cases,” DAG Guidance Memo, Step 3.A, providing belated and/or incomplete
Brady information complicates cases and slows them down.
2) Litigating Brady disputes pretrial is time-consuming. The court may be forced
to schedule additional hearings, to adjudicate additional motions, and/or to
review contested documents in camera.
3) When a Brady violation is uncovered in the midst of trial, the costs to the
court and the community, particularly jurors and witnesses, are even greater.
The court may have to interrupt the presentation of evidence to allow the
defense to process the information and/or to conduct further investigation,
witnesses may have to be recalled to the stand, or if some other remedy is
needed, the court and the parties will have to take the time to determine what
that remedy is, which may include ordering a mistrial.33
4) Even worse than the multiplication of court proceedings, pretrial or midtrial
delay, or even mistrying a partially tried case, is the cost of negating a
conviction following a trial – especially when the Brady information gives
rise to a concern that the resources of the judiciary and executive have been
spent prosecuting the wrong person while the true perpetrator remains at
liberty, free to commit more crimes.
2. Because it makes infinite sense, regulating Brady disclosures pretrial is
commonplace in federal court.
a. See, e.g., United States v. Johnson, 2010 WL 322143, *9 (W.D. Pa. 2010) (court
ordered government to “disclose all Brady exculpatory material forthwith” and
“all Brady impeachment material . . . no later than ten days prior to trial”); United
States v. Lekhtman, 2009 WL 5095379, at *1 (E.D.N.Y. 2009) (court ordered
government to turn over “Brady material . . . as it is discovered,” and “Giglio
material . . . two weeks before the commencement of trial”); United States v.
Rodriguez, 2009 WL 2569116, at *12 (S.D.N.Y. 2009) (court ordered
government to turn over “Brady material . . . as it is discovered by the
Government” and “Giglio material . . . twenty-one days before the
commencement of trial”); United States v. Libby, 432 F.Supp.2d 81, 86-87
(D.D.C. 2006) (ordering the government to “produce, forthwith” “[a]ll
documents, from any individuals, whether or not they will be called as witnesses
in the government’s case-in-chief, that are discoverable under Brady”); United
States v. Thomas, 2006 CR 553, 2006 WL 3095956, *1 (D.N.J. 2006)
33

Lindsey v. United States, 911 A.2d 824, 838 (D.C. 2006) is an example of a trial derailed by
late Brady disclosures.

53

(unreported) (ordering the government to disclose within ten days of the issuance
of the order “[a]ny material evidence favorable to the defense related to issues of
guilt, lack of guilt or punishment which is known or that by the exercise of due
diligence may become known to the attorney for the United States, within the
purview of Brady v. Maryland and its progeny”);
b. In a number of jurisdictions, pretrial Brady orders have been incorporated into the
local rules with the result that a number of United States Attorney’s Offices,
including those in large metropolitan areas like Boston and Miami, operate under
such orders in every case. See, e.g., M.D. ALA. Standing Order on Criminal
Discovery § (1)(B)&(C) (requiring disclosure of “Brady” and “Giglio” material
“at arraignment, or on a date otherwise set by the Court for good cause shown”);
S.D. ALA. L. R. 16.13 § (b)(1)(B)&(C) (same); D. Conn. L. Crim. R. Appx.§
(A)(11) (requiring disclosure of “[a]ll information known to the government
which may be favorable to the defense” within 10 days of arraignment); N.D.
FLA. L. R. 26.3(D)(1)&(2) (requiring disclosure of “Brady” and “Giglio” material
within 5 days of arraignment “or promptly after acquiring knowledge thereof”);
S.D. FLA. L. Crim. R. 88.10(C)&(D) (requiring disclosure of Brady and Giglio
information); id. 88.10(Q)(2) (requiring discovery in connection with trial not
later than 14 days after arraignment); S.D. GA. L. Crim. R. 16.1(f) (requiring
disclosure of “any evidence favorable to the defendant” within 7 days of
arraignment); D. HAW. L. R. 16.1(a)(7) (requiring disclosure of Brady material
within 7 days of arraignment and impeachment material upon court order); D.
MASS. L. R. 116.1 &116.2 (requiring disclosure of exculpatory information
within 28 days of arraignment and disclosure of impeachment information no
later than 21 days before trial); D. NEV. L. Crim. R. 16-1(b)(1) (requiring
disclosures required by the Constitution within 5 days of filing the Joint
Discovery Statement (to be filed within 5 days of arraignment)); D. N.H. L. Cr. R.
16.1(d) (requiring disclosure of “any evidence material to issues of guilt or
punishment within the meaning of Brady . . . and related cases” and any
impeachment material as defined in Giglio . . . and related cases . . . at least” 21
days before trial); N.D.N.Y. L. R. 14.1 (requiring disclosure of Brady information
14 days after arraignment and Giglio information no less than 14 days prior to
jury selection); E.D. N.C. L. Crim. R..16.1 (b)(1)(7) (requiring disclosure of all
“exculpatory evidence” at pretrial conference which must be held within 21 days
of indictment or initial appearance); W.D. OK. L. Crim. R. 16.1 & Appx. V
(requiring counsel to hold discovery conference within 14 days after a plea of not
guilty is entered and to file within 7 days of conference a joint statement that
complies with form in appendix; joint statement form requires certification of the
fact of disclosure of “all materials favorable to the defendant or the absence
thereof within the meaning of Brady . . . and related cases”); W.D. PA. L. R.16.1
(requiring disclosure of “exculpatory evidence” at the time of arraignment); M.D.
Tenn. L. Crim. R. 16.01(d) (requiring disclosure within 14 days of arraignment,
all information “favorable to the defendant on the issues of guilt or punishment
within the scope of Brady . . . and Agurs”); W.D. TEX. L. Crim. R. 16(b)(1)(c)
(requiring government to provide discovery “in connection with trial . . . not later
than 14 days after arraignment”; discovery checklist includes exculpatory and

54

impeachment information); D. VT. L. R.16.1(a)(2) & (d)(1) (requiring disclosure
of Brady information within 14 days of arraignment and Giglio information no
later than 14 days before trial); W.D. WASH. L. Crim. R. 16(a)(1)(K) (requiring
disclosure of evidence favorable to defendant and material to guilt or punishment
to which he is entitled under Brady . . . and Agurs” within 14 days of arraignment)
N.D. W.VA. L. Crim. R. 16.01(b)&(d), 16.05 & 16.06 (requiring disclosure of
Brady within 10 days of filing Standard Discovery Request Form (filed at
arraignment), and disclosure of Giglio information no later than 14 days before
trial); S.D. W. VA. L. Crim. R. Standard Discovery Request Form III.1(H) & 2
(requiring disclosure of “all favorable evidence to the defendant, including
impeachment,” within 14 days of filing Standard Discovery Request Form (filed
at arraignment)); see also E.D. OK. L. Crim. R. 16. 1 & Disclosure Agreement
Checklist (“it is anticipated that the government will provide discovery to the
Defendant contemporaneously with arraignment”; Disclosure Agreement
Checklist includes “exculpatory” and “impeachment” material); D. ID. General
Order No. 242 § I.5.A-C. (“strongly encourage[ing] the government to produce”
within 7 days of arraignment “all material evidence within the scope of Brady,”
all Giglio information, and the criminal record of any government witnesses).
3. The Superior Court has the authority to issue pretrial Brady orders.
a. Brady itself is the first foundation for the Superior Court’s authority.
1) The Superior Court not only has the broad authority to fashion “appropriate
remedial sanctions” when the government fails to disclose Brady information
in a timely fashion, United States v. Odom, 930 A.2d 157, 158 (D.C. 2007), it
also has the power ex ante to regulate disclosures under Brady pretrial and to
make certain that this constitutional rule – which exists “to ensure that a
miscarriage of justice does not occur,” United States v. Bagley, 473 U.S. 667,
675 (1985) (emphasis added) – is working as it should.
2) Indeed, in Boyd, the Court directed that trial courts must, “as a constitutional
matter,” exercise such oversight. 908 A.2d at 61; see also id. at 59 (holding
that the government’s “discretion” in determining how to fulfill its Brady
obligations “is not unlimited, and courts have the obligation to assure that it is
exercised in a manner consistent with the right of the accused to a fair trial.”);
see also United States v. Starsuko, 729 F.2d 256, 261 (3d Cir. 1984) (“The
district court may dictate by court order when Brady material must be
disclosed, and absent an abuse of discretion, the government must abide by
that order.”).
b. The Superior Court’s obligation to protect a defendant’s right to the effective
assistance of counsel is another foundation for a pretrial Brady order.
1) As the Court of Appeals has acknowledged the government’s disclosure
obligations under Brady implicate a defendant’s Sixth Amendment right to
effective representation. Boyd, 908 A.2d at 61 (discussing prosecutor’s Brady

55

obligations “[i]n light of the defendant’s Fifth Amendment right to due
process, as well as his Sixth Amendment right to the effective assistance of
counsel”); see also United States v. Snell, 899 F.Supp. 17, 20 n.5 (D. Mass.
1995) (ordering immediate disclosure of Brady information and noting that
“the civil discovery rules recognize that effective advocacy and case
management depend upon effective trial preparation. On the criminal side,
where liberty is at risk, this conclusion is no less clear.”).
2) The Court of Appeals has also acknowledged that “the right to [effective]
assistance” of counsel is of such importance that it “invokes, of itself, the
protection of a trial court,” and confers upon the trial court the power “to take
steps to eliminate any deficiencies in the representation of counsel before the
resources…have been invested in a full-blown trial.” Monroe v. United
States, 389 A.2d 811, 816, 818 (D.C. 1978) (internal quotation and citation
omitted).
c. A third foundation for the court’s authority to issue a pretrial Brady order is the
court’s general inherent power “to effectuate . . . the speedy and orderly
administration of justice.” United States v. Holmes, 343 A.2d 272, 277 (D.C.
1975) (affirming trial court’s authority to order the disclosure of the government’s
witnesses both on grounds of “fundamental fairness” and “administrative
efficiency”).34
1) The Supreme Court has acknowledged that trial courts are empowered “to
manage their own affairs so as to achieve the orderly and expeditious
disposition of cases.” Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)
(internal quotations and citations omitted); see also Geders v. United States,
425 U.S. 80, 86 (1976) (the trial court “must have broad power to cope with
the complexities and contingencies inherent in the adversary process . . . [and]
[i]f truth and fairness are not to be sacrificed, the judge must exert substantial
control over the proceedings.”).
2) Similarly, the Court of Appeals has recognized that a “trial court has inherent
authority . . . to control the conduct of the proceedings before it, in order to
ensure that the proper decorum and appropriate atmosphere are established,
that all parties are treated fairly, and that justice is done.” Hicks-Bey v. United
States, 649 A.2d 569, 575 (D.C. 1994).
3) Pursuant to this “broad power,” a trial court has
the authority to enter pretrial case management and discovery orders designed
to ensure that the relevant issues to be tried are identified, that the parties have
an opportunity to engage in appropriate discovery and that the parties are
34

Rule 57(b) of the Superior Court Rules of Criminal Procedure acknowledges this inherent
power and provides that “[w]hen [t]here [i]s [n]o [c]ontrolling [l]aw,” “[t]he [trial] court may
regulate practice in any manner consistent with applicable law and these Rules.”

56

adequately and timely prepared so that the trial can proceed efficiently and
intelligibly.
United States v. W.R. Grace, 526 F.3d 499, 509 (9th Cir. 2008) (affirming trial
court’s order requiring government to disclose its finalized witness list a year
prior to trial as an exercise, inter alia, of the court’s “general inherent authority
to manage its docket”); see also United States v. Coppa, 267 F.3d 132, 146 (2d
Cir. 2001) (acknowledging that a trial court has “discretion to order pretrial
disclosures as a matter of sound case management”); United States v. Rigas,
779 F.Supp.2d 408, 414 (M.D. Pa. 2011)(“district courts have general
discretionary authority to order the pretrial disclosure of Brady material to
ensure the effective administration of the criminal justice system) (internal
quotation and citation omitted); United States v. Cerna, 633 F.Supp.2d 1053,
1057 (N.D. Cal. 2009) (applying W.R. Grace to Brady disclosures and ruling
that it had power to issue a pretrial Brady order); United States v. Thomas, 2006
WL 3095956, *1 (D.N.J. 2006) (issuing pretrial order regulating, inter alia,
Brady disclosures “[i]n order to eliminate unnecessary motions for discovery in
this case [and] to eliminate delays in the presentation of evidence and the
examination of witnesses”).
d. Cases the government may try to cite in opposition to a pretrial order:
1) Miller: The case for a pretrial order is not undermined by the Court of
Appeals’ observation in Miller that “factual scenarios vary . . . and
constitutionally, it is not feasible or desirable to specify the extent or timing of
disclosure Brady and its progeny require, except in terms of the sufficiency,
under the circumstances, of the defense’s opportunity to use the evidence
when disclosure is made.” Miller, 14 A.3d at 1111 (internal quotation and
citation omitted). First, the court made this comment in the context of
rejecting the government’s “very late is good enough” argument, id.; it was
never asked in Miller to weigh in on the issue of a trial court’s authority to
issue pretrial Brady orders; second, any suggestion that it might be
“constitutionally” impermissible to set default deadlines to apply to all cases
is questionable given that a number of courts do this, see VII.A.2 supra; third
and most importantly, this dicta should not preclude a pretrial order issued in a
particular case that is tailored to defense needs in a particular case.
2) The government may also try to rely on United States v. Coppa, 267 F.3d 132,
136-37 (2d Cir. 2001), where the Second Circuit held that the trial court did
not have authority to issue an order directing immediate production, before a
trial date had been set, of all impeaching information, without regard to
materiality, and without regard to the defendant’s need to use it to prepare his
case. Notably, the government did not seek appellate review of the provision
in the trial court’s order requiring immediate disclosure of all exculpatory
information regardless of materiality. 267 F.3d at 136. Coppa is
distinguishable where the pretrial order is tailored to the needs of the defense

57

in a particular case and preserves the pretrial materiality inquiry (as discussed
above see IV supra).
4. The substance of a pretrial Brady order:
a. Depending on the needs of the case, a pretrial Brady order could provide
checklists addressing what constitutes favorable information and where the
government must look for this information, how the government must assess
materiality, when Brady information must be disclosed, and in what format.
1) The most common orders govern timing of disclosure, see VII.A.2 supra.
2) Massachusetts’ local rule is an example of a more comprehensive approach.
See D. MASS. L. R. 116.1 &116.2.
b. In addition to case law and local rules, the government’s own policy obligations
may serve as the foundation of a proposed order.
1) Certainly, the government should be hard-pressed to object to provisions of a
proposed order that simply mirrors “the government’s own stated sense of
fairness vis-a-vis criminal defendants.” Miller, 14 A.3d at 1109-10.
2) Indeed, if the government is actually following its policy, an order that renders
its policy enforceable by a court should be of no concern.
B. Remedies:
1. The trial court has broad discretion to remedy the government’s failure to fulfill
its Brady obligations pretrial:
In lieu of granting a continuance or a mistrial or striking the government's evidence, a
trial court has discretion to fashion other appropriate remedial sanctions for the
government’s failure to make timely disclosure of apparently material, exculpatory
evidence as the Constitution requires. . . . The trial judge enjoys a broad range of
possible sanctions, with the sole limitation being that the sanction be just under the
circumstances.
Odom v. United States, 930 A.2d 157, 158-159 (D.C. 2007) (emphasis added).
2. The remedy the defense gets will depend on the record it makes.
a. To get a remedy, the defense must show harm that needs to be remedied: e.g.,
witnesses it needs to interview that it did not know about previously, a criminal
record that needs to be investigated, an opening statement or a line of cross that
would have been different if the defense had known about the Brady information.
b. It is difficult to generalize about prejudice – the defense must think about the
particulars of its case and ask:

58

1) What would it have done differently in the investigation and preparation of its
case and if trial has started, what would it have done differently in the
presentation of its case?
2) Have any witnesses died, gone missing or become otherwise unavailable?
3) Has any evidence been destroyed?
4) Has so much time passed that memories are now lost, witnesses are too
difficult to locate?
5) Has the prosecution gained some strategic advantage, and if so, how could the
playing field be leveled?
c. Be prepared to push back against the argument that there is no need to remedy the
belated disclosure of impeaching information because the defense does not need
more time either to investigate this information or incorporate it into its theory of
the defense.
1) For example, prior inconsistent statements about an incident may provide an
investigative lead to others who could corroborate that the inconsistent
statement is the truth. See, e.g., Sykes, 897 A.2d at 781.
2) Even evidence of prior criminal convictions may need to be investigated. For
example, there may be pleadings in those prior cases where the government
makes representations about the witness’ lack of veracity.
3. Possible remedies:
a. Mistrial, Dismissal & Vacatur:
1) To convince a court to grant a mistrial/dismissal, the defense must to show
that the harm the defense has suffered cannot be remedied by any lesser
means and/or that any lesser remedy will only allow the government to profit
from its Brady violation.
2) It is best to acknowledge that in the vast majority of the cases a
mistrial/dismissal/vacatur will not be a realistic possibility.
a) the defense should preserve the argument, but do not expect that the court
will grant your request;
b) the defense should ask for a lesser remedy in the alternative.
3) That said, courts have granted mistrials and have dismissed cases and vacated
convictions as a remedy for Brady violations:

59

a) Superior Court judges have granted mistrials, United States v. Antonio
Linder, 2005 F 5706 (Christian, J.) (November 28, 2006, court ordered a
mistrial in second-degree murder case), United States v. Antonio Clark,
2003 F 6781 (Puig-Lugo, J.) (April 18, 2006, court ordered mistrial in a
first degree murder case); United States v. Leroy Beach, 2005 F 984
(Johnson, J.) (February 17, 2006, court ordered a mistrial in an assault
with a deadly weapon case);
b) Superior Court judges have dismissed cases pretrial, United States v.
Leandrew Randolph, 2011 CMD 1216 (Wynn, J.) (May 9, 2011, case
dismissed with prejudice); United States v. Theresa Green aka Tracy
Tobin, 2004 F 6457 (Holeman, J.) (November 14, 2008, court dismissed
with prejudice this robbery and simple assault case); United States v.
Leonardo Delacruz, 2008 CF2 10259 (Gardner, J.) (August 7, 2008, court
dismissed with prejudice assault on a police officer case midtrial); United
States v. Tracy Vandyke, 2004 F 7347 (Christian, J.) (September 11, 2006,
in a second degree murder case, court dismissed indictment without
prejudice);
c) Superior Court judges have vacated convictions, United States v. Dwight
Grandson, 2004 F 5751 (May 11, 2010, court vacated convictions for
premeditated murder, obstruction of justice, and related offenses and
ordered a new trial); United States v. Joseph Harrington, Crim. No. 2007CF1-22855 (April 17, 2009, court vacated a jury’s verdict for first-degree
murder and ordered a new trial for Brady violations); United States v.
Lamont Johnson, 2001 F 5105 (Ross, J.) (February 23, 2005, in an assault
with intent to kill case, court vacated the conviction, and ordered a new
trial).
More detailed descriptions of a number of these cases may be found in a
letter posted on the PDS website from Avis Buchanan to The Honorable
Richard C. Tallman, Chair of Judicial Conference Advisory Committee
On The Rules of Criminal Procedure, dated July 16, 2010
(http://www.pdsdc.org/Resources/SLD/PDS%20Letter%20to%20Judge%
20Tallman,%20%20Chair,%20Judicial%20Conference%20Advisory%20
Committee,%20on%20amending%20Rule%2016.pdf).
NOTE: Because these cases are often not published in reported opinions,
the special litigation division at PDS asks that trial attorneys consider
notifying us when judges make findings of Brady violations or other
prosecutorial misconduct (Obviously, counsel must first determine if
publicizing this fact is in the best interest of the client or at least not
adverse to the client’s interests). SLD is also interested in the cases in
which the government voluntarily dismisses to avoid a ruling that it
violated its Brady obligations. Only by recording, compiling, aggregating,
and analyzing these cases can any real change come to the system.

60

d) federal courts have also dismissed cases: see, e.g., United States v.
Fitzgerald, 615 F.Supp.2d 1156 (S.D. Cal. 2009) (Lorenz, J.); United
States v. Diabate, 90 F.Supp.2d 140 (D. Mass. 2000); United States v.
Dollar, 25 F.Supp.2d 1320 (N.D. Ala. 1998); United States v. Raming,
915 F.Supp 854 (S.D. Tex. 1996); United States v. Lyons, 352 F.Supp.2d
1231 (M.D. Fla. 2004); United States v. Cheng Yong Wang, 1999 U.S.
Dist. LEXIS 2913 (S.D.N.Y. Mar. 15, 1999); United States v. Chapman,
524 F.3d 1073 (9th Cir. 2008), and vacated convictions and granted new
trials, see, e.g., United States v. Quinn, 537 F.Supp.2d 99 (D.D.C. 2008)
(Bates, J.) (finding that the government had violated its Brady obligations
and ordering a new trial where the government (1) failed to inform the
defendant that a “critical” witness had made false statements and would no
longer be called at trial because the witness had become the target of an
investigation and (2) withheld information about the same witness’s plea
negotiations.).
b. Lesser remedies:
1) Possible lesser remedies include:
*

A continuance;

*

An order precluding the government from introducing particular
evidence;

*

An order requiring the government to make a witness available to
the defense;

*

Admission of an otherwise inadmissible statement, Odom, 930
A.2d at 159; see also, e.g., United States v. Joseph Brown, 2008
CMD 21398 (Morrison, J.) (May 31, 2010 order admission of
hearsay statements as remedy for Brady violation);

*

An instruction to the jury that the government withheld evidence
from the defense to explain, for example, why defense counsel
may not have had the ability fully to prepare for the information or
why a certain exculpatory witness could not be located and did not
testify. (Such an instruction is distinct from a Shelton-type
instruction, see VII.C. infra).

2) Defense counsel should think strategically about what is best for the
defendant. For example, the Court may be willing to grant a continuance –
but does the defense want it?
a) Perhaps yes, because there are many seemingly fruitful lines of
investigation to be pursued, or because client is out and this will give the
defense more time to prepare.

61

b) But perhaps no, because client is being held pretrial, it does not appear
that the defense will be able to unearth any more information, and the
defense feels it has at least a temporary strategic advantage because the
government has not yet determined how it is going to respond to newly
discovered Brady information.
4. Be careful to distinguish the defense request for a remedy from any request for a
sanction.
a. Remedies are a realistic possibility; sanctions are not. Few if any judges are
interested in punishing the prosecution for their conduct. Their focus is on the
trial over which they are presiding. Sanctions are considered collateral to that
proceeding.
b. By requesting sanctions, the defense takes on an additional burden of proving bad
faith. A showing of bad faith is not required to establish a Brady violation.
Brady, 373 U.S. at 87 (“[T]he 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.”); see also, e.g., Virgin Islands v. Fahie, 419 F.3d 249, 254
(3d Cir. 2005) (holding that dismissal with prejudice can be appropriate sanction
for a willful Brady violation).
C. A new line of defense – admission by conduct.
1. The defense may want to present evidence concerning the prosecution’s untimely
disclosure of Brady information to support an argument and possible jury instruction
that the Government’s suppression constituted an admission by conduct that its case
was weak.
a. This is a defense that a panel of the Court of Appeals endorsed in Shelton v.
United States, 983 A.2d 363 (D.C. 2009) – although the opinion was subsequently
modified and superseded on rehearing. 26 A.3d 216 (D.C. 2011).
1) In Shelton, the government suppressed the complainant’s initial statement to
the police at the hospital that “I don't know or I didn’t see or all’s I saw was. .
. someone shoot at me from a dark-colored car.” 983 A.2d at 366. At trial the
complaining witness identified Mr. Shelton as the shooter. Although Mr.
Shelton was tried twice (the first case mistried after the jury hung), the
government did not disclose the complainant’s exculpatory statement until the
eve of the second trial. At the second trial, the defense sought to question the
detective about the government’s suppression of Brady information, but the
trial court precluded this line of inquiry.
2) The panel reversed noting that such a line of questioning/defense was akin to
permitting a party to present evidence to support an inference of a party's
consciousness of guilt:

62

It has always been understood—the inference, indeed, is one of the simplest in
human experience—that a party's falsehood or other fraud in the preparation
and presentation of his cause, his fabrication or suppression of evidence by
bribery or spoliation, and all similar conduct is receivable against him as an
indication of his consciousness that his case is a weak or unfounded one; and
from that consciousness may be inferred the fact itself of the cause's lack of
truth and merit. The inference thus does not necessarily apply to any specific
fact in the cause, but operates, indefinitely though strongly, against the whole
mass of alleged facts constituting his cause. . . .
We are persuaded by the analysis in the cases we have discussed and conclude
that defense counsel had a basis in law to argue that the government's
nondisclosure of exculpatory information was akin to an admission by
conduct that the government was conscious that its case was weak (and that it
was in fact weak) and that appellant should have been allowed to present that
evidence.
983 A.2d at 370-71 (emphasis added) (internal citation and quotation
omitted).
b. In making a consciousness of weakness argument it is important :
1) To make clear that developing the evidence support this inference is neither a
remedy nor a sanction, but a separate line of defense. See Shelton, 983 A.2d at
369 (citing Kyles and noting that attacking the quality of the investigation is a
long-standing line of defense).
2) To support this “consciousness of weakness” inference with evidence that the
prosecution knew about the Brady information and deliberately did not
disclose it. BUT the defense need not establish that the prosecution acted in
“bad faith.” See United States v. Shelton, Opposition to Petition for Rehearing
en Banc, dated May 19, 2010.
2. Whether this is a viable line of defense in the District is an open question – and one
the defense should press courts to decide in our favor.
c. As noted above, a panel of the Court of Appeals approved such a defense
argument in Shelton 983 A.2d 363 (D.C. 2009). But the Court subsequently
granted rehearing en banc and vacated the panel opinion, United States v. Shelton,
26 A.3d 233 (D.C. 2011).
d. Although the court acknowledged that this was “a difficult question of first
impression as to which reasonable judges may disagree,” 26 A.3d at 233, it did
not reject the earlier panel’s analysis – it simply held that the issue did not need to
be reached in this case:
1) Because any error was harmless. Id. (“Resolution of that question is
unnecessary to the disposition of this appeal, since all members of the division

63

agree that any error in excluding such evidence was harmless, and that
appellant’s conviction must be affirmed”);
2) And because “[t]here is substantial doubt whether this claim of error was
preserved.” Id.
3) Accordingly, the Court determined that “resolution of the above-described
question of first impression should not be undertaken” id., and the court issued
a modified opinion in which it declined to “decide . . . whether the claim was
adequately preserved because, assuming, without deciding, that the trial court
erred in excluding the evidence and precluding counsel from arguing its
relevance to the jury, we conclude that the error was harmless.” 26 A.3d at
222.
VIII. Significant Cases:
A. Pre-Brady Supreme Court Cases:
1. Mooney v. Holohan, 294 U.S. 103, 112 (1935) (The deliberate use of perjured
evidence and suppression of impeaching evidence by state prosecutors constitutes a
due process violation).
2. Pyle v. Kansas, 317 U.S. 213, 216 (1942) (A defendant makes a viable due process
claim if his imprisonment resulted from “perjured testimony, knowingly used by the
State authorities to obtain his conviction, and from the deliberate suppression by
those same authorities of evidence favorable to him.”).
3. Mesarosh v. United States, 352 U.S. 1 (1956). Government acknowledged after trial
that informant/witness had given false testimony in several other proceedings in
different courts concerning the general subject matter of his testimony at trial
(relating to Communist Party activities). Government argued that his testimony at
defendant’s trial was truthful and that there was sufficient other evidence. In
rejecting this argument the Court observed that the informant “by his testimony, has
poisoned the water in this reservoir, and the reservoir cannot be cleansed without first
draining it of all impurity.” Id. at 14. “The government of a strong and free nation
does not need convictions based upon such testimony. It cannot afford to abide with
them.” Id. The Court ordered a new trial because “it cannot be determined
conclusively by any court that his testimony was insignificant in the general case
against the defendants.” (emphasis added).
4. Alcorta v. Texas, 355 U.S. 28 (1957). Defendant argued that he stabbed his wife only
after seeing her with another man. That other man, who was the only witness,
testified that he had no romantic relationship with the wife and was just driving her
home. The prosecutor knew about the romantic relationship but told the man not to
volunteer that information but to testify truthfully if asked about it. His testimony,
however, implied falsely that there was no relationship. The prosecutor did not
disclose that the witness had admitted to the sexual relationship, which would have

64

seriously corroborated the “heat of passion” defense. That defense could have led to
a far shorter punishment under state law. Court held due process violation because
the testimony, even if not knowingly false, certainly gave a “false impression” that
prejudiced the defendant. Id. at 31.
5. Napue v. Illinois, 360 U.S. 264 (1959). Key witness testified that he was offered no
consideration for his testimony. Even though prosecutor had actually promised him
consideration, the prosecutor did nothing to correct the false testimony on that
question. Witness had already been impeached on basis of public defender.
a. When government uses false evidence or allows it to go uncorrected, the
conviction “must fall under the Fourteenth Amendment.” Id. at 269.
b. Impeachment is just as important as any other evidence. “The jury's estimate of
the truthfulness and reliability of a given witness may well be determinative of
guilt or innocence, and it is upon such subtle factors as the possible interest of the
witness in testifying falsely that a defendant's life or liberty may depend.” Id. at
269. The question is whether the testimony “may have had an effect on the
outcome.” Id. at 272.
c. “It is of no consequence that the falsehood bore upon the witness’ credibility
rather than directly upon defendant's guilt. A lie is a lie, no matter what its
subject, and, if it is in any way relevant to the case, the district attorney has the
responsibility and duty to correct what he knows to be false and elicit the truth. . .
. That the district attorney's silence was not the result of guile or a desire to
prejudice matters little, for its impact was the same, preventing, as it did, a trial
that could in any real sense be termed fair." Id. at 269-270 (internal quotations
and citation omitted) (emphasis added).
d. The fact that witness was impeached by testimony that a public defender had
promised to help him after testifying did not cure the violation because the word
of the prosecutor was much stronger and more effective impeachment. Thus,
evidence that defendant had access to some impeachment information does not
render additional, important impeachment evidence immaterial.
B. Brady and Supreme Court Progeny:
1. Brady v. Maryland, 373 U.S. 83 (1963).
a. Brady confessed to murder but argued that he should not get the death penalty
because he did not perform the actual killing. The Government did not disclose to
Brady that the co-defendant admitted to performing the killing.
b. “[T]he 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.” Id. at
87. “Society wins not only when the guilty are convicted but when criminal trials

65

are fair; our system of the administration of justice suffers when any accused is
treated unfairly.” Id. at 87.
c. It is often overlooked that the Court employed a fairly lenient materiality standard
in Brady. The suppressed confession by the co-defendant also stated that Brady
likewise wanted to kill the victim, but that Brady wanted to strangle the victim
and the co-defendant wanted to shoot him. Even so, the Court held that the
confession would have been favorable to Brady and found a due process
violation.
2. Giglio v. United States, 405 U.S. 150 (1972).
a. Key witness testifies that he and Mr. Giglio forged $2300 in money orders, and
that witness believes witness “still could be prosecuted,” id. at 151; and
Government argues in closing that witness “received no promises that he would
not be indicted.” Id. at 152. But, in fact, grand jury prosecutor had, unbeknownst
to trial prosecutor, promised witness that if he testified before grand jury he would
not be indicted. The trial prosecutor denied any knowledge of the promise and
thus any knowing use of false testimony.
b. The Court clarifies that the Brady disclosure obligation does not turn on the trial
prosecutor’s actual knowledge of the information. The Court imputed the
promise of the first prosecutor to the entire office, holding that the burden should
be placed on the Government to develop “procedures” to ensure that “all relevant
information” is communicated to each lawyer who handles any case. Id. at 154.
c. The Court clarifies that impeachment information falls under Brady: “When the
reliability of a given witness may well be determinative of guilt or innocence,
nondisclosure of evidence affecting credibility falls within [Brady].” Id. at 154.
d. The court clarifies that reversal under Brady requires a finding of materiality
(though what “materiality” means will evolve), which is defined as a showing that
the withheld evidence could “in any reasonable likelihood have affected the
judgment of the jury.” Id. at 154 (internal quotation and citation omitted).
3. United States v. Agurs, 427 U.S. 97 (1976).
a. Agurs was convicted of murder after she and a man had checked into a motel.
Witnesses heard Agurs screaming for help and came to the room to find Agurs
and the man struggling for a knife. The man was on top of Agurs, and he was
bloody and was trying to jam the knife into Agurs’ chest. The man died of
multiple stab wounds, and Agurs was not wounded. The evidence established that
the man had been carrying two knives with him when he checked into the hotel.
The prosecutor did not disclose the man’s prior criminal record, including assault
with a deadly weapon and carrying a deadly weapon (both knives).
b. The Court holds that there are three different standards of review for Brady
violations.

66

1) The highest level of scrutiny is reserved for cases involving knowing perjury
and false evidence. Reversal is warranted “if there is any reasonable
likelihood that the false testimony could have affected the judgment of the
jury.” Id. at 103.
2) An intermediate level of scrutiny is used in cases where a specific Brady
request is made. A failure to disclose evidence that had been specifically
requested is “seldom, if ever, excusable.” Id. at 106.
3) For all other cases, including when no Brady request is made or when just a
general request for “Brady information” is made, the prosecutor still has an
independent disclosure obligation. But, in those cases, the Court applies a less
stringent standard: whether, after viewing everything, there is any reasonable
doubt about the conviction. Id. at 112-13. Applying this standard the court
finds that the suppressed evidence was not material: Evidence of guilt was
strong, given that Sewall had multiple stab wounds and Agurs had none.
Sewall’s criminal record did not contradict any evidence offered by the
prosecution and was largely cumulative of other evidence about Sewall’s
violent character, including undisputed evidence that he arrived at the hotel
room with two knives.
NOTE: The bright-line distinction between specific request and “no request” or
“general” request has since been abolished by Bagley, see below.
c. The Court also notes in Agurs that “the prudent prosecutor will resolve doubtful
questions in favor of disclosure.” Id. at 108.
d. The court reiterates that the heart of the Brady inquiry is about fairness not bad
faith: Suppression violates constitution because of “character of the evidence, not
the character of the prosecutor.” Id. at 110. Failure to disclose highly probative
evidence violates the constitution even if it was wholly inadvertent, and failure to
disclose trivial evidence is not a constitutional violation even if prosecutor is
trying to suppress a vital fact.
4. United States v. Bagley, 473 U.S. 667 (1985).
a. Government’s two key witnesses on narcotics and firearms charges testify that
their statements have been made without any promise of reward. Post trial
defense learns (via FOIA request) that witnesses had agreements with ATF to
receive financial “rewards” for their cooperation. Court of Appeals holds that
automatic reversal is required when government fails to disclose impeachment
evidence of this sort because its suppression also amounts to a Confrontation
Clause violation.
b. The Supreme Court explains that Brady is a rule of fairness that is a “departure
from a pure adversary model,” id. at 675 n.6, that “requir[es] the prosecutor to
assist the defense in making its case.” Id.

67

c. The Court reaffirms holding of Giglio: “Impeachment evidence. . . as well as
exculpatory evidence, falls within the Brady rule.” Id. at 676. But the Court
holds that the failure to disclose impeachment evidence is of the same – not of
greater or lesser – constitutional import, under Brady, as the failure to disclose
exculpatory evidence. In fact, the Court is so concerned about the prejudice to the
defense from the suppression of this impeachment information it remands the case
for a reassessment of materiality under the correct standard (see below).
d. The Court discards the Agurs distinction between specific request and general/no
request situations. Standard of materiality to show a Brady violation is the same:
whether “there is a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been different. A
‘reasonable probability’ is a probability sufficient to undermine confidence in the
outcome.” Id. at 682.
1) Even so, the Court holds that specific requests matter, because the
prosecution’s failure to respond may mislead the defense and thus impair the
adversary process:
the more specifically the defense requests certain evidence, thus putting the
prosecutor on notice of its value, 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. . .[T]he reviewing
court may consider directly any adverse effect that the prosecutor's failure to
respond might have had on the preparation or presentation of the defendant's
case.
Id. at 682-83.
2) The standard for false evidence and testimony still remains the same: it is
material unless the government can show beyond a reasonable doubt that it
was harmless. Id. at 678-79.
e. The Court remanded the case because it “think[s] there is a significant likelihood
that the prosecutor's response to respondent’s discovery motion misleadingly
induced defense counsel to believe that O'Connor and Mitchell could not be
impeached on the basis of bias or interest arising from inducements offered by the
Government.” Id. at 683. The Court notes that “the fact that the [witnesses’]
stake [in the outcome] was not guaranteed through a promise or binding contract,
but was expressly contingent on the Government's satisfaction with the end result,
served only to strengthen any incentive to testify falsely in order to secure a
conviction.” Id.
5. Kyles v. Whitley, 514 U.S. 419 (1995).
a. A woman is murdered in a parking lot, and her car is stolen. Six eyewitnesses
give statements containing physical details that are inconsistent with Kyles but
consistent with another man named Beanie. Beanie, using different names,

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contacts police several times and tells several different stories. He claims that he
bought the victim’s car from Curtis Kyles and expresses concern that he, himself,
is a suspect. Beanie also knows a number of details about the crime, asks for a
reward, and, curiously, goes to Kyles’s apartment before telling police where
exactly particular inculpatory items will be located, including the murder weapon.
Police prepare a photo lineup with Kyles’s picture, not Beanie’s. Some witnesses
identify Kyles but others do not or are not asked. Kyles is tried twice based on
eyewitness testimony alone; Beanie is never called to testify. The first trial
concludes with a hung jury and a mistrial is declared. Kyles is convicted after the
second trial.
b. Government failed to disclose the six exculpatory eyewitness statements, records
of police dealings with Beanie, recording of Beanie’s inconsistent statements, a
written statement by Beanie, a computer printout of cars from a parking lot that
shows Kyles’ car was not there, an internal memo in which police plotted to seize
Kyles’s trash at the suggestion of Beanie, and evidence linking Beanie to other
crimes in the same location, including another murder.
c. Kyles is the source of the understanding that the duty of disclosure extends to the
prosecution team: The Court clarifies that prosecutors are charged with
knowledge of information in the possession of police and that they have “a duty to
learn of any favorable evidence known to the others acting on the government’s
behalf in a case.” Id. at 437.
d. The Court discusses the materiality component of the Brady inquiry in depth and
clarifies:
1) “A showing of materiality does not require demonstration by a preponderance
that disclosure of the suppressed evidence would have resulted ultimately in
the defendant's acquittal (whether based on the presence of reasonable doubt
or acceptance of an explanation for the crime that does not inculpate the
defendant). . .Bagley's touchstone of materiality is a “reasonable probability”
of a different result, and the adjective is important. The question is not
whether the defendant would more likely than not have received a different
verdict with the evidence, but whether in its absence he received a fair trial,
understood as a trial resulting in a verdict worthy of confidence. A reasonable
probability” of a different result is accordingly shown when the government's
evidentiary suppression “undermines confidence in the outcome of the trial.”
Id. at 434 (internal quotations and citation omitted).
2) “It is not a sufficiency of evidence test. A defendant need not demonstrate that
after discounting the inculpatory evidence in light of the undisclosed
evidence, there would not have been enough left to convict.” Id. at 434-35.
3) In assessing materiality, Brady information must be evaluated cumulatively,
not item by item. Id. at 436.

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e. The Court rejects the State’s invitation to limit the prosecution’s duty of
disclosure pretrial:
1) The state had “asked [the Court] at oral argument to raise the threshold of
materiality because the Bagley standard “makes it difficult ... to know” from
the “perspective [of the prosecutor at] trial ... exactly what might become
important later on.” Id. at 438.
2) But instead of giving the State “a certain amount of leeway in making a
judgment call as to the disclosure of any given piece of evidence” as
requested, the Court shifted the disclosure equation in the other direction:
A prosecutor anxious about tacking too close to the wind will disclose a
favorable piece of evidence. See Agurs, 427 U.S. at 108 (“[T]he prudent
prosecutor will resolve doubtful questions in favor of disclosure”). This is as
it should be. Such disclosure will serve to justify trust in the prosecutor as
“the representative ... of a sovereignty ... whose interest ... in a criminal
prosecution is not that it shall win a case, but that justice shall be done.”
Berger v. United States, 295 U.S. 78, 88 (1935). And it will tend to preserve
the criminal trial, as distinct from the prosecutor's private deliberations, as
the chosen forum for ascertaining the truth about criminal accusations.
Id. at 439-40.
f. The Court concludes that disclosure of suppressed evidence in Kyles would have
made a different result reasonably probable. In so doing
1) The Court acknowledges that inconsistent eyewitness statements are material
because the “evolution over time of a given eyewitness’s description can be
fatal to its reliability,” id. at 444, and “the effective impeachment of one
eyewitness can call for a new trial even though the attack does not extend
directly to others.” Id. at 445.
2) Information can be material if its disclosure could help a defendant attack the
thoroughness of the police investigations. The disclosure of the information
in Kyles “would have revealed a remarkably uncritical attitude on the part of
the police.” Id. at 445.
6. Strickler v. Greene, 527 U.S. 263 (1999).
a. In case in which evidence of guilt is overwhelming, but government failed to disclose
devastating impeachment information of sole eyewitness to the abduction, including
correspondence with police and notes from interviews that establish that her
confidence about her trial testimony was highly questionable. In state post-conviction
proceedings, government said that disclosure was unnecessary because it maintained
an “open file.”

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b. The Court reiterates three elements of a Brady violation on appeal: 1) favorable
evidence is 2) suppressed by government 3) resulting in prejudice. The court also
makes clear that the prosecution has a “broad” duty of disclosure pretrial that is not
limited to that which establishes a Brady violation post-trial:
This special status explains both the basis for the prosecution's broad duty of
disclosure and our conclusion that not every violation of that duty necessarily
establishes that the outcome was unjust. Thus the term “Brady violation” is
sometimes used to refer to any breach of the broad obligation to disclose
exculpatory evidence -that is, to any suppression of so-called “Brady material”although, strictly speaking, there is never a real “Brady violation” unless the
nondisclosure was so serious that there is a reasonable probability that the
suppressed evidence would have produced a different verdict.
Id. at 281.
c. The Court rejects state court and 4th Circuit arguments that the Brady claim was
defaulted because habeas petitioner was not “diligent” in discovering this information
himself. Diligence is not an element of Brady. If the “suppression” prong of Brady is
met—and a defendant is relying on the state’s representations, implicit or explicit,
that no Brady material exists—a court cannot expect or require a defendant to
investigate to find out if the state is lying. The defense is entitled to rely on the
representations of the prosecution. Id. at 284 (“it was reasonable for trial counsel to
rely on, not just the presumption that the prosecutor would fully perform his duty to
disclose all exculpatory materials, but also the implicit representation that such
materials would be included in the open files tendered to defense counsel for their
examination.”).
d. Justice Souter, concurring in part and dissenting in part, attempts to clarify the
materiality standard employed by the Court in Brady and its progeny. He argues that
“significant probability” rather than “reasonable probability” is the legal shorthand
for establishing prejudice under Brady. He expresses concern that the use of
“reasonable probability” risks confusion with the far more demanding “more likely
than not.” Id. at 297-301.
7. United States v. Ruiz, 536 U.S. 622 (2002).
a. Defendant enters guilty plea after initially refusing to accept a more favorable “fast
track” plea bargain, under which government would recommend downward departure
under Sentencing Guidelines if she pleaded guilty, because government demanded
waiver of Brady right to disclosure of impeachment evidence and any information
supporting an affirmative defense. (The rejected fast-track plea agreement provided
that the government would “provide any information establishing the factual
innocence of the defendant regardless.” Id. at 631).
b. The Court holds that because “[t]he principle supporting Brady was ‘avoidance of an
unfair trial’. . .[and] that concern is not implicated at the plea stage,” Brady does not

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require disclosure of impeachment information prior to plea negotiations pursuant to
plea deal where government had promised to disclose all evidence of innocence at
time of plea. Id. at 634 (Thomas, J. concurring).
c. Likewise with respect to information supporting an affirmative defense, the Court
held “in the context of this agreement, the need for this information is more closely
related to the fairness of a trial than to the voluntariness of the plea.” Id. at 632
(emphasis added).
d. Ruiz should be interpreted to have limited import, bounded by its facts. It was
looking at the voluntariness of a plea prior to indictment, not the impact of withheld
information on the fairness of a trial (indeed there was no allegation that any
information had been withheld). See United States v. Ohiri, 133 Fed. Appx. 555
(10th Cir. 2005) (Ruiz did not excuse suppression of exculpatory (not impeachment)
information where plea was executed the day jury selection was to begin (not preindictment as part of a “fast-track” plea)); McCann v. Mangialardi, 337 F.3d 782, 788
(7th Cir. 2003) (Given Ruiz’s distinction between exculpatory and impeachment
evidence, “it is highly likely that the Supreme Court would find a violation of the Due
Process Clause if prosecutors . . . have knowledge of a criminal defendant's factual
innocence but fail to disclose such information to a defendant before he enters into a
guilty plea.”).
8. Banks v. Dretke, 540 U.S. 668 (2004).
a. In a capital murder case, State represents that it would provide all discovery to which
the defendant was entitled but fails to disclose evidence that would have allowed
Banks to discredit key government witnesses – the status of Farr as a paid
government informant and a pre-trial transcript revealing that Cook’s testimony had
been intensively coached. State further fails to correct false statements made by the
witnesses on cross-examination regarding these facts. In penalty phase, the
government relied heavily on Farr’s testimony about his and Bank’s supposed future
plan to commit an armed robbery. However, in a 1999 affidavit Farr represented that
he had received $200 from a police officer to stage a set up. Farr asked Banks to
obtain a gun for Farr to commit robbery. He further stated that he believed that if he
didn’t help the officer with his investigation, he would be arrested for drug charges.
The Court reverses a denial of habeas relief and finds that there was a Brady
violation.
b. Where as here “prosecutors represented at trial and in state post conviction
proceedings that the State had held nothing back,” id. at 698, the Court holds that
defendants need not “scavenge for hints of undisclosed Brady material.” Id. at 695.
Defendants can reasonably rely on representations and conduct of government
officials. “A rule . . . declaring ‘prosecutor may hide, defendant must seek’ is not
tenable in a system constitutionally bound to accord defendants due process.” Id. at
696.

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c. The Court also stresses importance of being able to impeach and fully cross-examine
informants because of the suspect nature of their testimony. Here, the informant’s
status was withheld, and his testimony was critical to the penalty phase. Even though
there was some impeachment of the informant, the Court stresses that impeachment
was quantitatively and qualitatively different than it would have been had the
information been disclosed. Id. at 699-703.
9. Cone v. Bell, 556 U.S. 449 (2009).
a. Prosecutor suppressed various evidence tending to show that defendant had a drug
problem and may have been drunk or high when committing the murders.
b. This evidence was not material to guilt, but Court holds that it may have been
material to punishment because it tended to mitigate culpability, and the government
had tried to discount any idea that Cone was affected by drugs. The Court remanded
to have the lower court decide the issue in the first instance.
c. The suppressed evidence amounts to a few statements that merely would have helped
the defendant establish that he was a serious drug user. Cone is thus important
because it demonstrates that evidence need not be overwhelming in the slightest to be
Brady material—it just needs to speak to one of the many things that courts have
found to be material to mitigation.
10. Smith v. Cain, No. 10-8145, 2012 U.S. LEXIS 576 (January 10, 2012).
a. The Supreme Court reversed a conviction pursuant to a straightforward application of
Brady, adding nothing to the Brady doctrine.
b. The only eyewitness, who had testified at the murder trial that he was sure of his
identification, had told police the night of the murder and a few days later that he
could not make an identification. The Court called this information, which revealed
inconsistent statements by the only eyewitness to the crime, “plainly material.”
C. Significant D.C. Court of Appeals Brady cases:
1. Mackabee v. United States, 29 A.3d 952 (D.C. 2011).
a. In this murder case, the court reviewed whether the government had fulfilled its
Brady obligations where it disclosed a year before trial notes documenting a
description of the shooter that did not match the defendant but withheld until a week
before trial the full transcript of the videotaped interview with the witness who
provided this description, and where it disclosed a year before trial notes indicating
that another witness had failed to identify the defendant in a photo array, but withheld
until weeks before trial information that the witness had stated that two other people
in the array looked like the shooter.
b. The Court of Appeals held that the prosecution had not timely disclosed all the
information it should have pretrial but ultimately affirmed the conviction because of

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its conclusion that the defense had not been prejudiced by the government’s untimely
disclosures.
c. The Court firmly rejected the argument that the videotaped interview was only
“potentially exculpatory” and thus did not need to be disclosed pretrial. Id. at 956
n.11 (observing that Court was “at a loss to understand th[e] reasoning” of the
prosecution that videotaped statement of witness who gave police “a physical
description [of the shooter] that could not match Mr. Mackabee” “was not the kind of
exculpatory information that [the government] would immediately go around and turn
over”).
d. The Court also held the witness’s failure to identify defendant in a photo array
coupled with statement that the shooter “sort of look[ed] like” the photographs of two
other people in the photo array was exculpatory in that it was “evidence of a kind that
would suggest to any prosecutor that the defense would want to know about it.” Id. at
962.
2. Miller v. United States, 14 A.3d 1094 (D.C. 2011).
a. Defendant was charged with assault with intent to commit murder and related
offenses arising out of a shooting. Notwithstanding multiple Brady requests, the
government withheld until the evening before opening statements, grand jury
testimony in which the government’s principal eyewitness stated that the gunman
held the pistol in his left hand. Defendant is right-handed. The defense argued
that it was unable to effectively use this information at trial, and in particular, that
it did not have time to appreciate that another prosecution witness, Lindsay, who
was a potential suspect, had given the police a videotaped statement in which he
signed his rights card with his left hand. The Court found a Brady violation and
reversed.
b. The Court begins its opinion by emphasizing the importance of the Brady rule in
ensuring fairness and avoiding wrongful convictions, stressing that “the principles
of Brady must therefore be conscientiously applied not only by judges, but by
prosecuting attorneys,” and noting that “Brady unambiguously prescribes the
prosecutor’s priorities: The prosecutor’s obligation is to see justice before
victory.” 14 A.3d at 1107 (internal quotation and citation omitted).
c. Regarding what is exculpatory information, the Court endorses a simple,
“eminently sensible standard”: Evidence is “exculpatory for Brady purposes
because it [i]s of a kind that would suggest to any prosecutor that the defense
would want to know about it.” Id. at 1110 (quoting Leka v. Portuondo, 257 F.3d
89, 99 (2d Cir. 2001)).
d. The Court rejects the government’s claim, “remarkable for its breadth,” that the
prosecution was not obligated to disclose the information about the shooter being
right-handed because the government had determined this information was not
material. Id. at 1109.

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1) The Court reaffirms its analysis in Boyd that the duty of disclosure pretrial is
broader than what ultimately constitutes a Brady violation post-conviction.
Id. at 1109.
2) The Court also reiterates its admonition in Zanders that “It is not for the
prosecutor to decide not to disclose information that is on its face exculpatory
based on an assessment of how that evidence might be explained away or
discredited at trial, or ultimately rejected by the fact-finder.” Id. at 1110
(quoting Zanders, 999 A.2d at 164; adding emphasis).
3) In the course of its materiality discussion, the Court notes that the
government’s own policy requires that prosecutors take a broad view of what
must be disclosed, and also notes the “telling contrast between the
government’s own stated sense of fairness vis-a-vis criminal defendants [as
documented by the government’s Brady policy] and its unqualified assertion,
in this case, that it was not obliged to disclose to the defense Taylor’s plainly
exculpatory testimony before the grand jury.” Id. at 1109-10.
e. Regarding timing, the Court emphasizes the importance of timely pretrial
disclosure,
1) The court reiterates its statement in Perez, 968 A.2d at 66 that the object of
the Brady is to “allow defense counsel an opportunity to investigate the facts
of the case and, with the help of the defendant, craft an appropriate defense”
and condemns “[p]rosecutorial resort to a strategy of delay and conquer” as
“not acceptable.” 14 A.3d at 1108.
2) The court subsequently rejects the “very late is good enough” arguments made
by the government in support of eve or midst of trial disclosure as
“inconsistent with Brady,” id. at 1111, and cogently explains why the defense
needs Brady information early enough in the life of the case so that it can
actually make use of it. The Court also acknowledges that once trial has
begun, defense counsel is distracted with other matters, is not in investigative
mode, and may not be able to incorporate new exculpatory information into its
case. Id. at 1111-13.
3) Although the Court acknowledges that where “a Brady claim is predicated
upon the timing of the disclosure, the defendant must show prejudice from the
delay itself,” id. at 1115, the Court also makes clear that the defense’s ability
to make some use of the information is not equivalent to “effective use.” Id at
1115. In Miller, the Court determined that the good job defense counsel did
under challenging circumstances could not be held against the defense in the
context of the materiality inquiry. Timely disclosure would have helped the
defense make an even more persuasive case that the government had not met
its burden of proof and indeed that another man might have been responsible
for the shooting. Id. at 1115-16.

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3. Zanders v. United States, 999 A.2d 149 (D.C. 2010).
a. In this murder case, the Court of Appeals determined that the prosecution’s
summary disclosure did not satisfy the government’s pretrial disclosure
obligations under Brady, but declined to reverse in the absence of a showing of
prejudice.
b. The prosecutor had provided the defense a summary disclosure stating that:
[Attorney] Betty Ballester represents an individual who was interviewed by the
[MPD] [who said that] . . . [Allen] Lancaster was involved in some sort of
altercation/argument with [Shawn] LNU in the days immediately preceding his
murder. This information was investigated and found to have no bearing on the
case. Therefore the government does not believe this information is in any way
Brady material. However, I am disclosing it now in an excess of caution.
Brief for Appellee, Thomas Zanders v. United States, District of Columbia Court
of Appeals No. 05-CF-246 at 58. The summary disclosure did not reveal
“significant exculpatory information,” 999 A.2d at 163, contained in the notes of
the witness interview, namely, that the altercation had taken place in the exact
location of the decedent’s shooting the following night. Id. at 161.
c. The Court of Appeals concluded that the prosecution’s summary Brady
disclosures were “incomplete and late.” Id. at 164; see also id. (admonishing that
“[a]ny doubts [regarding Brady disclosures] should be resolved in favor of full
disclosure made well before the scheduled trial date”) (emphasis added).
d. Regarding what the government must disclose as Brady information:
1) The Court observes that “[i]t should by now be clear that in making judgments
about whether to disclose potentially exculpatory information, the guiding
principle must be that the critical task of evaluating the usefulness and
exculpatory value of the information is a matter primarily for defense
counsel.” 999 A.2d at 163-64.
2) The Court also admonishes the government for withholding information
because it has decided that the information is not creditable: “[i]t is not for
the prosecutor to decide not to disclose information that is on its face
exculpatory based on an assessment of how that evidence might be explained
away or discredited at trial, or ultimately rejected by the fact finder.”
Zanders, 999 A.2d at 164.
e. Regarding when the government must disclose as Brady information:
1) The Court specifically noted that the defense must have “a fair opportunity to
pursue leads before they turn cold or potential witnesses become disinclined
to cooperate with the defense.” Id. at 164.
2) Accordingly, the court stated that “[a]ny doubts should be resolved in favor of
full disclosure made well before the scheduled trial date, unless there is good
reason to do otherwise (such as substantiated grounds to fear witness

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intimidation or risk to the safety of witnesses), upon request by the defense.”
Id. at 164.
4. Perez v. United States, 968 A.2d 39 (D.C. 2009).
a. In murder case, government withheld pretrial, among other things, key witness’s
statements to the grand jury that he was drunk at the time of the incident and had
no memory of it. Court holds that government should have disclosed this
information pretrial, id. at 66 (“There is no question here that Alemán’s grand
jury testimony should have been disclosed before trial.”), but affirms after
concluding that the defense was not prejudiced from the belated disclosure of this
information.
b. Regarding timing, the Court of Appeals:
1) Admonishes the government, noting that it had been “repeatedly confronted
with complaints of tardy disclosure of exculpatory material,” id. at 65;
2) Clarifies that at trial disclosure of Brady information is presumptively
untimely:
This Court has rejected any notion that disclosure in accordance with the
Jencks Act satisfies the prosecutor's duty of seasonable disclosure under
Brady, or that if such disclosure is made, the burden may then be shifted to
the defendant, under pain of waiver, to request a continuance or similar
remedy.
Id. at 66 (emphasis added);
3) And explains that “timely, pretrial disclosure” id. (emphasis added), is
necessary because:
the due process obligation under Brady to disclose exculpatory information
is for the purpose of allowing defense counsel an opportunity to investigate
the facts of the case and, with the help of the defendant, craft an appropriate
defense.
Id. at 65-66 (emphasis added).
5. Lindsey v. United States, 911 A.2d 824 (D.C. 2006).
a. In this first degree murder case, the government concedes and the Court holds that
the prosecution made Brady disclosures that were both incomplete and late.
b. The court reiterates that impeachment information is Brady information and “may
well be determinative of guilt or innocence.” Id. at 838 (quoting Giglio, 405 U.S.
at 154)

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c. Here, “the government had given the defense some Brady evidence prior to trial,
but it became clear as the proceedings progressed that the disclosures were
substantially incomplete.” Id. at 839. Specifically,
1) “Each of the eyewitnesses had been treated favorably by the government in
exchange for their testimony by garnering plea agreements on other charges or
being paid with federal witness vouchers, but impeachment evidence on three
of the four eyewitnesses was not disclosed before trial and had to be
supplemented by the government as the trial progressed.” Id.
2) “The failures were the most egregious with regards to eyewitness Kevin Perry,
who had to be excused twice during his testimony when defense counsel
uncovered further evidence of Perry's cooperation with police officers that the
government had not disclosed.” Id.
3) “Finally, the trial court delayed the proceedings for an entire day mid-trial so
that the government could supplement their deficient disclosures.” Id.
d. The Court affirms the conviction however because it finds that there is no
reasonable probability that the result would have been different had the
government fulfilled its Brady obligations.
6. Sykes v. United States, 897 A.2d 769 (D.C. 2006).
a. In this murder case, Court reverses and remands for a new trial where government
belatedly discloses impeachment information.
1) Sykes and two co-defendants were charged with armed robbery and murder
outside the Bulgarian Embassy. Government witness Williams claims the
defendants confessed crime to him at a boarding house and showed him jacket
stolen from victim, and that two other witnesses, Parrott and Sellers, were also
there. A year before trial Parrott and Sellers testify before the grand jury and
say that they weren’t at the boarding house and never heard the defendants
confess. Government doesn’t disclose that grand jury testimony exists until
two days before trial and defense doesn’t get transcripts until after trial has
started.
2) At trial, government relies heavily on Williams and states that Sellers is in
custody in MD and under writ to testify and detectives are trying to locate
Parrott. Trial judge offered a continuance, which defense rejected in light of
Sykes’ long incarceration pending trial and belief that Sellers would testify.
Seller is then released and neither he nor Parrott can be located by detectives
or defense investigators to testify at trial. Trial judge allows only
“substantially redacted” grand jury testimony of both to come in.
b. The Court notes that the fact that this information was impeaching did not weaken
the government’s disclosure obligation: “[U]nder our precedents, . . . the
[withheld] grand jury testimony . . . should have been disclosed to the defense at

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an earlier point in time, whether it was considered to be potentially exculpatory
information or favorable impeaching evidence.” 897 A.2d at 778.
c. The Court held that the government should have revealed the identities of
exculpatory witnesses “to the defense shortly after their 1996 grand jury
appearance” when the government first learned they possessed information
favorable to the defense; the court found this would have given the defense “an
opportunity to interview them, and to conduct additional pre-trial investigation . . .
based on those interviews.” Id. at 781 (emphasis added).
d. The Court also held the fact that the jury heard substantially redacted grand jury
testimony of the witnesses did not make up for the lack of having those
impeachment witnesses testify live, subject to direct and cross examination:
While Mr. Sykes had an opportunity to conduct rigorous cross-examination of
Mr. Williams, he had no opportunity to present Mr. Sellers or Mr. Parrott, or both,
to the jury. Hence, their credibility was not tested by direct or cross-examination,
and the prosecutor was able to cast doubt on their credibility by suggesting that
they were not being truthful in saying that they did not hear the appellants discuss
the October 23, 1995 events at the Bulgarian Embassy. And, the substantially
redacted grand jury testimony of Mr. Sellers and Mr. Parrott, which the jury
heard, did not provide a complete picture of them, or afford the jury the
opportunity to see their demeanor.
Id. at 780-81.
7. Boyd v. United States, 908 A.2d 39 (D.C. 2006).
a. In this murder case, where defense theory was that three people (not including
defendant) had committed the crime, not four, government withheld multiple
witness statements supporting defense theory of the case (some statements were
not revealed until the appellate litigation).
b. The Court affirms trial court oversight over pretrial Brady disclosures. After an
extensive discussion of the prosecution and defense theories, in which the court
agrees with the defense that the prosecution is too pinched in its assessment of
what might have been helpful to the defendant at trial, the Court observes that
[t]he government is not in a position to be a perfect arbiter of defense strategy. .
. . Although we are required to leave the prosecutor “with a degree of
discretion” in identifying information that must be turned over to the defendant
pursuant to Brady . . . that discretion is not unlimited, and courts have the
obligation to assure that it is exercised in a manner consistent with the right of
the accused to a fair trial.
Id. at 59 (emphasis added).

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c. Although the Court rejects the approach of requiring the government to disclose
all favorable information to the defense regardless of its assessment of its
materiality, id. at 61 n.32, the Court holds that the government has a “broad”
pretrial duty that obligates it to disclose “arguabl[y] material” favorable
information, even if that information later proves not to be material:
In arguable cases, the prosecutor should provide the potentially exculpatory
information to the defense or, at the very least, make it available to the trial
court for in camera inspection. Further, when the issue appears to be a close
one, the trial court should insist upon reviewing such material, and should
direct disclosure to the defense if, considering (to the extent possible) the
anticipated course of the trial, there is a reasonable probability that disclosure
may affect the outcome. All such rulings must be made in full recognition of
the reality that “Brady is not a discovery rule but a rule of fairness and
minimum prosecutorial obligation,” and that “compliance with the
prosecution's responsibilities under Brady is necessary to ensure the effective
administration of the criminal justice system.”
Id. at 60-61 (internal quotations and citations omitted).
8. Bennett v. United States, 797 A.2d 1251 (D.C. 2002).
a. The Court reversed defendant’s conviction for first degree murder because the
government failed to disclose information that would have impeached a
prosecution witness.
b. At trial, the government disclosed as Jencks material, a key witness’ grand jury
testimony but redacted portions of her testimony referring to a separate murder.
Defense Counsel asked for the redacted portions to be disclosed. The prosecution
conceded that the witness had been untruthful with respect to her testimony about
the other murder, but asserted that this information was irrelevant to the charged
crime. The trial court reviewed the full grand jury transcript in camera and
declined to order disclosure to the defense.
c. The Court of Appeals had a very different view. It determined that “the jury in
this case was denied information which was of critical importance to its
assessment of the evidence,” id. at 1255, and concluded that the failure to disclose
this impeachment information constituted a Brady violation:
1) The Court concluded that “[t]here c[ould] be no doubt that the redacted
evidence, which showed that Delores Smith lied either to the police or to the
grand jury about a murder that she allegedly witnessed, was evidence
favorable to the defense. Id. at 1256 (internal quotations and citation
omitted).
2) The Court concluded that this information was material:

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The question of Bennett’s innocence or guilt of a brutal murder turned
entirely on the credibility of the witnesses. Delores Smith was perhaps the
most important of these witnesses, and the jury was faced with the question
whether this witness should be believed when she testified, under oath,
regarding Bennett's involvement in a wanton and intentional killing.
Murder is, perhaps, the ultimate crime. To lie to the police or to a grand jury
about a murder is to pervert the course of justice with respect to the willful
taking of a human life. If a witness is willing to lie about a murder, a jury
may well conclude that she is likely to be willing to lie about anything. More
particularly, if she has lied about one murder, there may be little if any reason
to credit her testimony about a different murder.
Id. at 1255 -1256; see also id. at 1256-57.
3) Finally, the Court rejected the trial court’s determination that this information
could not have been used to impeach Ms. Smith because it was minimally
relevant or cumulative.
a) The court found that the trial court’s discretion to limit the scope of crossexamination is not so broad as to “justify a curtailment which keeps from
the jury relevant and important facts bearing on the trustworthiness of
crucial testimony.” Id. at 1257 (internal quotations and citation omitted).
b) The Court also determined that the information about Ms. Smith’s lie to
the police or the grand jury about whether or not she witnessed another
murder was not cumulative:
We have held that even where a prosecution witness has been
“substantially impeached,” the trial court’s refusal to permit further and
different impeachment may warrant reversal of the defendant’s
conviction. . . . If the defense had been permitted to cross-examine
Delores Smith about, and impeach her with, her two irreconcilable
versions of the second murder, there is, at least, a reasonable probability
that her credibility in Bennett's case, already shaky as a result of other
impeachment, would have been fatally undermined.
Id. at 1258.
9. Gaither v. United States, 759 A.2d 662 (D.C. 2000), mandate recalled and opinion
amended by, 816 A.2d 791 (D.C. 2003).
a. The court remanded for an evidentiary hearing to determine whether there were
suggestive procedures used in the identification process and, even if those
procedures did not ultimately influence the witness, whether their use caused
doubt on the thoroughness and good faith of the investigation such that they
should have been disclosed under Brady. Id. at 663.

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b. The Court also directed the trial court on remand to determine whether the
government had given the witness benefits of between $400-800 in witness
voucher payments, a $100 loan, free lunches, and promises of help and friendship.
Id. at 663-64.
c. On remand, conviction was vacated and new trial ordered. United States v.
Reginald Gaither, F-5286-88 (Feb. 5, 2004).
10. Black v. United States, 755 A.2d 1005 (D.C. 2000).
a. A witness had given “possibly deceptive answers on a CVSA lie detector test that
may have been inconsistent with her later statement to” police. Id. at 1010.
Counsel tried to probe the nature of the statements at a pretrial hearing but trial
court sustained prosecution’s objections to defense questions.
b. The Court of Appeals remands to trial court to hold a hearing to determine if there
was a Brady violation and observes that this is what the trial court should have
done in the first instance:
Because we do not know the deceptive statements made by Marshall to
Detective Young during the interview, we cannot make an informed
determination of whether the information was material under Brady. It may be
that Marshall's statements to Detective Young contradicted her inculpatory trial
court testimony that identified Black as the shooter. Thus, the information could
have served to impeach Marshall's testimony, and if timely disclosed by the
government, may have produced a different result in this case. The trial court
should have conducted an inquiry, either by requiring Detective Young to
testify at the suppression hearing about the content of Marshall’s statements
during the CVSA test, or otherwise by requiring the government to produce
more information about the substance of Marshall’s interview.
Id. at 1010 (emphasis added).
11. Farley v. United States, 694 A.2d 887 (D.C. 1997).
a. In this drug distribution case the court remands to determine if government
violated its Brady violations when it failed to disclose statements that witness
gave to police as well as the complaint witness filed with the Civilian Complaint
Review Board.
b. In so doing, the Court rejected the government arguments that (1) by disclosing to
the defense, the witness’ “name and address and the substance of his statement to
the police,” . . . it fulfilled its Brady obligations (2) that the government had no
obligation to disclose the CCRB complaint because it was unaware of its
existence. Id. at 889.
c. The Court specifically notes that the government is responsible for knowing about
Civilian Complaint Review Board complaints against individual police officers,

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particularly because D.C. municipal regulations require notice of any complaints
to be given to the officer accused, and if the individual officer was notified, his
knowledge could be imputed to the government. Id. at 889-90.
d. The Court remands for the trial court to conduct a materiality analysis of the
suppressed information.
12. Curry v. United States, 658 A.2d 193 (D.C. 1995).
a. Government withholds for over a year and fails to disclose until two days before
trial the fact that on the night of the charged murder, an eyewitness gave a
description of the shooter that did not match the defendant. By this time, the
witness was gone, and no party could find him. The government conceded and
the Court held that the Government had violated its duty of disclosure and that the
information should have been disclosed. Id. at 197. Defense counsel moved for
dismissal or in the alternative that the defense be permitted to introduce into
evidence the witness’ statements to police. The trial court denied the motion
finding the witness had disappeared soon after the shooting and that the defense
would not have been able to locate him even if the information had been disclosed
earlier. Id.
b. The Court explains that Brady “is not a discovery rule but a rule of fairness and
minimum prosecutorial obligation. Effective compliance with the prosecution’s
responsibilities under Brady is necessary to ensure the effective administration of
the criminal justice system.” Id. (internal quotation and citation omitted).
c. Regarding timing:
1) The Court holds that the identity of the witness should have been disclosed
“soon after the return of Curry’s indictment,” particularly because the
government was on notice of witness mobility and knew that the “the trail
might quickly turn cold if it were not promptly and energetically pursued.”
Id.
2) The Court emphasizes the importance of timely disclosure: “[T]he practice of
delayed production must be disapproved and discouraged. . . .” Id. The Court
also stated: “Such delay may imperil a defendant’s right to a fair trial, and a
conscientious prosecutor will not countenance it.” Id. at 198.
d. The Court affirms because, under a deferential standard of review, the trial
judge’s factual holding that the defense would not have been able to locate the
witness even had the identity been disclosed at indictment, was not “clearly
erroneous.” Id. at 198. Thus, while the Court might have been permitted to order
other relief, such as the un cross-examined use of the witness’s statement, the trial
judge did not abuse his discretion in not permitting that.
13. Smith v. United States, 666 A.2d 1216 (D.C. 1995).

83

a. In Smith, the government did not disclose until trial that the victim/witness had
misrepresented to police that the assailant had waved a gun in his face during the
911 call. He did this in order, he said, to have the police come more quickly. The
Court held that the failure to disclose this information pretrial was a Brady
violation. 666 A.2d at 1225.
b. In so doing the court rejected the government’s argument that this was mere
impeachment information that could properly be disclosed as Jencks material. Id.
at 1224-25.
c. Although defense could have tried to use this information to seek reconsideration
of the ruling, admitting the complainant’s initial report of the crime as an excited
utterance, id. at 1225 (citing James v. United States, 580 A.2d 636 (D.C. 1990),
the Court ultimately affirmed because it determined that the defense had the
opportunity to use this information to impeach the witness during crossexamination and in closing argument. Id. at 1225-1226.
14. Jackson v. United States, 650 A.2d 659 (D.C. 1994).
a. In this murder case, defendant and co-defendants made a Rule 16 and Brady
request for “any and all photo spreads shown to witnesses” and “non
identification by any witnesses of any defendant.” Id. at 661 n.4. The
government responded that “all photo spreads have been shown to counsel. . .
there is no Brady information concerning the identification of any defendant.” Id.
But, “[t]his statement proved to be false.” Id.
b. In fact “within two days of the murder, the police questioned Mr. Jose Garcia, a
college-educated investment analyst, who witnessed the murder. When shown a
photo array by the police that included a photo of appellant Kerry Jackson, Mr.
Garcia was unable to identify anyone as the assailant. . . . [And] when queried
whether the assailant was six feet, six inches tall and light-skinned (Kerry
Jackson's description), Mr. Garcia responded that the assailant was only five feet,
eight inches tall and dark-skinned. On November 2, 1990, Mr. Garcia died of a
terminal illness.” Id.
c. The government on appeal “wisely conceded in oral argument that, by failing to
reveal the identity of a potentially important exculpatory witness, it violated both
the letter and the spirit of Brady,” and the Court of Appeals accepted without
discussion the trial court’s ruling that the government had violated its Brady
obligations. Id.
d. However, the Court affirmed the trial court’s denial of the defense motion to
dismiss the indictment where the trial court determined that the Brady violation
“could be ‘cured’ by requiring the parties to enter into a stipulation setting forth
the testimony of Mr. Garcia, which was then read to the jury.” Id.
15. Edelin v. United States, 627 A.2d 968 (D.C. 1993).

84

a. In this murder case, the government disclosed on the eve of trial just after opening
statements that a witness had seen another man, Anthony Pate, wearing the
distinctive green jacket that the shooter was believed to be wearing. Subsequently
the government disclosed as Jencks a statement from this witness describing the
defendant’s clothing that day and omitting any mention of a green jacket. The
prosecutor disclosed during trial that a witness had given some inconsistent
statements about the attire of the suspect and of the defendant (which was relevant
to identification).
b. Regarding timing the Court held that:
1) It was now “well settled” that the prosecution must disclose Brady
information “at such a time as to allow the defense to use the favorable
material effectively in the preparation and presentation of its case, even if
satisfaction of this criterion requires pre-trial disclosure.” Id. at 970.
2) That disclosure as Jencks does not satisfy Brady. Id.
3) And that if the prosecution belatedly discloses Brady information the burden
“may [not] then be shifted to the defendant, under pain of waiver, to request a
continuance or similar remedy.” Id.
c. Regarding materiality, the court noted that “we rightly expect prosecutors to
resolve all reasonable uncertainty about the potential materiality of exculpatory
evidence in favor of prompt disclosure, especially in response to a pointed
request.” Id. at 971.
d. Court declined to reverse, finding that the trial judge did not abuse his discretion
in determining that the defense was able to make adequate use of the belatedly
disclosed information.
16. James v. United States, 580 A.2d 636 (D.C. 1990).
a. In this murder case, the government withheld until the fifth day of a six-day trial a
statement by an eyewitness which undercut a determination that a statement by
another person present at the time of the crime but who did not testify at trial
could be admitted as a spontaneous utterance. Specifically, the eyewitness, Essie
Bowman, testified that Gary Augustine instructed her to remove the guns from the
scene before he made the statement “Keith [James] shot at Ben.” The statement
that was admitted as an excited utterance. Id. at 641-42.
b. Noting the defense’s failure to request a mistrial or seek a continuance, the Court
declined “to impose upon defense counsel the obligation, every time Jencks
material is disclosed, . . . to evaluate-or to request a continuance in order to
evaluate-the material’s relevance not only to the witness who is testifying, but
also to every witness who has previously testified”; the Court reasoned that

85

the result would be that a prosecutor's Brady obligations would extend no
further than the requirements of the Jencks Act. That is to say, the prosecutor
could withhold evidence material to various evidentiary rulings during the
course of the trial and ultimately, perhaps, to the outcome of the trial as long as
the evidence was eventually disclosed to the defense as Jencks material. At that
point the burden would be on the defense to evaluate the evidence's relevance to
every previous evidentiary ruling in the trial, or else waive the right to complain
later. We do not read Brady or the due process clause so narrowly that they
would allow such a result.
Id. at 643-44.
c. The Court remanded to the trial court to determine if “(1) earlier disclosure of
Bowman’s police statement have had any effect on the court's spontaneous
utterance ruling? If so, (2) is there a reasonable probability that the exclusion of
Augustine's statement to Baptiste would have changed the outcome of this
apparently close trial?” Id. at 645.
17. Lewis v. United States, 408 A.2d 303 (D.C. 1979).
a. In an initial opinion the Court held that the prosecution must disclose impeachable
convictions for its witness to the defense upon request, and that the government
would be imputed with knowledge of convictions in an FBI rap sheet.
b. The Court granted rehearing to consider “the government’s arguments that (1) the
impeachable convictions of government witnesses are not Brady material,
automatically producible at trial upon request, and that (2) even if they are, this
court’s order [imputing knowledge of the FBI rap sheet] is too broad.” Id. at 305.
The Court reaffirms its opinion.
c. Regarding the requirement that impeaching convictions be turned over upon
request:
1) The Court “begin[s] from the premise that ‘impeaching evidence’ is
exculpatory and thus can be material to guilt or punishment, within the
meaning of Brady.” Id. at 307.
2) The Court then defends its requirement that all impeachable convictions be
disclosed upon request regardless of materiality
because there can be no objective, ad hoc way to evaluate before trial
whether an impeachable conviction of a particular government witness will
be material to the outcome. No one has that gift of prophecy. To argue that
the court can apply a material-to-outcome test before trial is to argue a
contradiction. . . . It also raises the serious possibility that a defendant may
be forced, unfairly, to disclose his or her case before trial, in an effort to
carry a virtually impossible burden.

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Id. at 307.
3) The Court further observes that
a defendant's actual use of convictions for impeachment at trial before the jury
decides is a better test of materiality than a retrospective inquiry by an
appellate court, limited to review of a less-than-vivid trial transcript, or an
even later evaluation in a collateral proceeding under D.C. Code 1973, s 23110 . . . . It follows, that a defendant is entitled to disclosure because “a
substantial basis for claiming materiality exists”; a defendant should have no
less a constitutional claim to at-trial disclosure of exculpatory information,
when he or she has a chance to make use of it, than to post-trial appellate or
collateral analysis of omitted evidence (which, absent a fortuity, the defendant
will not even discover). In short, the defendant, not the post-trial reviewing
court, should have control over materiality to outcome.
Id. at 308.
4) Given the alternative of having a blanket disclosure rule and leaving the
disclosure of impeachable convictions to the discretion of the prosecution
(“prosecutorial grace,” id. at 306), the Court chooses the former:
The government is not in a position to be a perfect arbiter of defense strategy,
let alone a defendant's constitutional rights. It follows that the government's
current policy of disclosing only those impeachable convictions about which a
particular prosecutor happens to be aware makes the criminal trial process too
fortuitous, and thus unfair, in a significant respect. We conclude, accordingly,
that the integrity of the criminal trial process requires uniformity of access to
impeachable convictions of government witnesses when requested.
Id. at 309; see also id. (“Although it may be somewhat strained to conclude that
potentially all impeachable convictions can affect the outcome, we believe it is
more strained to assume, as the government does, that failure to disclose such
convictions is Not likely to affect the outcome.”)
d. Regarding imputing knowledge of the FBI rap sheet to the prosecution, the Court
determines that the government has easy access to these records, id. at 310, and
that any cost of imputing this knowledge to the government “cannot be relevant
here. If a defendant has a constitutional right to the disclosure of impeachable
convictions or adjudications, the government must bear that cost, whatever it is.”
Id. at 311.
e. The Court sets up framework for ex parte review of witness’ juvenile records and
notes that general request for impeachable convictions encompasses request for
juvenile records. Id. at 312.

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