Fair Trials Require Fair Dealings: a Brief Primer on Brady v. Maryland and Exculpatory Evidence
In all criminal prosecution, the government has a responsibility to turn over all favorable evidence to the defense. This is not negotiable and is absolutely required under the constitution. Justice Thurgood Marshall reiterated that “the purpose of a criminal trial is as much about the acquittal of an innocent person as it is the conviction of a guilty one.”[i] If this the purpose, then the role of the prosecutor must be to seek truth and justice, and not simply attempt to get a conviction. With that being the constitutional goal, if the government is allowed to bury, hide, or otherwise restrict favorable evidence within its control, even the tiniest piece of a favorable evidence, then the quest for the truth is lost and the trial unconstitutional. When the government fails to disclose or provide that favorable piece of evidence to the defense, it precludes and restricts the trier of fact from gaining access to all the pertinent evidence to render its verdict. In this regard, the government’s nondisclosure “undermines the reliability of the verdict.”[ii]
In 1963, the Supreme Court in Brady v. Maryland, grappled with the State of Maryland suppressing favorable evidence in a murder case. The Brady Court concluded in a 7-2 decision that the prosecution’s suppression of the favorable evidence violated the “due process clause” of the Fourteenth Amendment.[iii] Twenty or so years later, the Supreme Court limited the disclosure of Brady material to evidence only evidence that was “exculpatory” (or tending to show that the accused did not commit the offense in some fashion) and “material.”[iv]
Brady violations are a big deal because the violation undermines the confidence in the outcome. To establish a Brady violation in court, the defendant has the burden to show (1) that favorable evidence, either exculpatory or impeaching,[v] (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced.[vi] Further, the prosecutor has a responsibility to learn about any favorable evidence and to disclose it to the defense.[vii]
In Wearry v. Cain, 577 US ---, 136 S.Ct. 1002, 194 L.Ed.2d 78 (2012), the Supreme Court recapped the law regarding Brady claims and stated:
“[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.” Brady, supra, at 87, 83 S.Ct. 1194. See also Giglio v. United States, 405 U.S. 150, 153–154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (clarifying that the rule stated in Brady applies to evidence undermining witness credibility). Evidence qualifies as material when there is “ ‘any reasonable likelihood’ ” it could have “ ‘affected the judgment of the jury.’ ” Giglio, supra, at 154, 92 S.Ct. 763 (quoting Napue v. Illinois, 360 U.S. 264, 271, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)). To prevail on his Brady claim, [petitioner] need not show that he “more likely than not” would have been acquitted had the new evidence been admitted. Smith v. Cain, 565 U.S. 73, 132 S.Ct. 627, 629–631, 181 L.Ed.2d 571 (2012) (internal quotation marks and brackets omitted). He must show only that the new evidence is sufficient to “undermine confidence” in the verdict. Ibid. (footnote omitted).
Wearry, at 1006. (emphasis added)
In Florida, prosecutors are held to a higher ethical standard.[viii] It is not enough to simply prosecute defendants. “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” Id. The state has an ethical obligation to turn over Brady evidence to the accused. Rule 4-3.8 (c) states:
(c) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.
Id. The Brady rule is also embodied in Florida Rule of Criminal Procedure Rule 3.220(b)(1)(A)(i)(5) which clearly states, “(5) witnesses known by the prosecutor to have any material information that tends to negate the guilt of the defendant as to any offense charged…”
Although there are many different scenarios where Brady materials are suppressed. These scenarios range from the prosecutor innocently overlooking a document or item to the truly nefarious situation where either law enforcement or prosecutor or both conspire to hide or fail to disclose the favorable evidence. For instance, during an investigation, the police learn that there were five eyewitnesses to the shooting. During questioning, two witnesses identify the defendant as the shooter, one is not sure, and two identify someone completely different as the shooter. Let's further say that the shooter is not arrested on the scene but arrested a few days later. Does the prosecution in its discovery disclosure have to provide the names of the two witnesses that identified another person other than the defendant as the shooter? Does the prosecution have to provide the name of the person who wasn't sure and could not identify anyone? The answer to both questions is yes and if the government fails to provide the names of the three people who did not identify the defendant then that would constitute a Brady violation. It is just one example but fairly illustrates the point.
Each potential Brady violation must be evaluated on a case-by-case basis to determine the extent of the violation and the potential remedy to rectify the violation. Depending on the severity of the Brady violation, the remedy could be dismissal of the case. If you think that the prosecution is hiding or suppressing favorable evidence in yours or a loved one’s case, please do not hesitate to contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss the matter. The suppression of favorable evidence is a serious constitutional violation and must be handled appropriately. As a board-certified trial attorney, I have the experience to properly represent you or your loved on regarding these types of constitutional issues. Over my 18-years, I have handled countless criminal trials and appeals to understand the issues involved.
The purpose of this blog is purely education/information and should not viewed as creating any attorney-client privilege between the reader and author.
Anthony Candela is a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles primarily criminal trials and appeals. He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. He was board certified by the Florida Bar in Criminal Trial in August 2008, recertified August 2013 and is pending recertification in 2018. He is also admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #agoodtampadefenselawyer
[i] United States v. Bagley, 473 U.S. 667, 692, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
[ii] Id., at 693.
[iii] Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
[iv] United States v. Bagley, supra.
[v] In this sense, impeaching means credibility evidence that can be offered to demonstrate that the witness on the stand has a bias or is prejudice, has memory problems, is a felon, or has an inability to tell the truth.
[vi] See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Rivera v. State, 995 So. 2d 191, 197 (Fla. 2008); Hurst v. State, 18 So. 3d 975 (Fla. 2009).
[vii] Mordenti v. State, 894 So. 2d 161, 170 (Fla. 2004), rehearing denied (2005). See Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). In other words, the prosecution cannot bury its head in the sand and ignore favorable evidence merely because that evidence does not fit into its prosecution narrative. Many Brady violations are simply because the government ignores certain evidence because it does not neatly fit into its theory of prosecution. Often, the government offers further suppression as the one-size-fits-all remedy to correct the problem which is exactly the wrong remedy based upon a reading of Brady and its progeny.
[viii] “Special Responsibilities of a Prosecutor.” See Rules Reg. Fla. Bar. Rule 4-3.8 Special Responsibilities of a Prosecutor.