What is a Brady Violation in a Criminal Case?

June 1, 2015

The landmark case of Brady v. Maryland gave the general rule that a prosecutor must disclose all material evidence which has exculpatory value to the defense as timely as possible. The actual evidence need not be completely exculpatory in which proves the innocence of a criminal defendant, rather evidence in which has a tendency to have exculpatory value. For example, if a defendant is charged with murder after shooting the victim and subsequent toxicology reports are drafted evidencing the victim was under the influence of a controlled substance at the time of the altercation, the prosecutor must disclose that evidence. Although the evidence does not completely vindicate the defendant’s culpability in the homicide, however it may be helpful in corroborating a defendant’s position that the defendant was perhaps acting in self-defense. It should be noted that law enforcement and prosecutors are held to this standard and are collectively referred to as the “prosecutor.” Both agency act in conjunction with one another in prosecuting defendant for alleged crimes committed.

There are a number of remedies available in the event there is a “Brady Violation” where a judge determines the prosecutor withheld favorable evidence from the defendant. First, if the defendant can demonstrate that the case has been “prejudiced” as a result of the Brady Violation then a defendant may be awarded a dismissal of all charges. Second, the defendant can move to suppress the evidence from being admissible at trial. And third, a defendant can request a jury instruction where upon the closing of the trial, the jury would be instructed to consider the prosecutor withholding favorable evidence from the accused when deciding guilt.

The process of gaining all the discovery in a criminal case begins with serving the prosecuting agency with an informal request for discovery (“IRD”). Pursuant to Penal Code 1054, the prosecuting agency must produce the requested material and/or evidence the prosecutor intends to elicit at trial, 30 days prior to trial. If the prosecutor disputes any requested discovery, defense counsel may file a “motion to compel discovery” which is a formal motion to be litigated before the judge requesting an order from the court requiring the prosecutor turn over the contested material. In all IRD, a section provides that the prosecutor must disclose / turn over all favorable evidence pursuant to Brady. Conversely, Brady evidence must be disclosed to the defense even if not requested.

Law enforcement and prosecuting agencies have undergone extreme scrutiny with numerous cases revealing a criminal defendant was wrongfully convicted after law enforcement deliberately withheld favorable evidence from the defense. On a weekly basis, the Innocence Project reports individuals wrongfully convicted based on prosecutor or police misconduct. It’s a growing concern that individuals are wrongfully convicted of crimes and that the agency responsible for collecting and turning over evidence is the agency responsible for investigating and arresting the defendant. Thus law enforcement have a substantial incentive to hide or disregard any or all favorable evidence to a defendant.

An example of a Brady violation is as follows: Dan was arrested for attempted murder after shooting someone 4 times in a Los Angeles neighborhood. The victim did not clearly see the shooter but with 90% certainty believes its Dan. Other individuals give statements to the police that Dan had motivation to kill the victim over a debt owed although they did not witness the shooting. Law enforcement obtains cellular phone data indicating that Dan made a phone call minutes before the shooting his cellular phone pinged from a nearby tower blocks from the shooting. Based on the evidence, the police arrest Dan for attempted murder. Little did Dan or his attorney know, the shooting appeared on the evening news where a witness came forward to the police requesting they investigate someone else (not Dan). The police determine that this witness “had nothing relevant to say” so they did not include the witness in any police report or evidence to be turned over to the defense. Since the police did not pursue the witnesses request to investigate the other person, the witness goes to the defense attorney explains everything. Dan’s defense attorney files a motion to dismiss the case on grounds of a Brady violation in that the police failed to turn over the witness they spoke with proposing they investigate someone else. Dan’s motion may be successful because the evidence was favorable to him in that it suggests someone else committed the shooting, and Dan has been prejudiced since other individuals may have come forward proposing police investigate someone else where they were completely disregarded. Moreover, it evidences a biased investigation mandating a case dismissal under due process of law.

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If you have been arrested or charged with a crime, contact Newport Beach Criminal Defense Attorney John Rogers at the Law Offices of John D. Rogers for a free confidential consultation concerning your rights and defenses.

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