The Promise Of Brady v. Maryland Is Not Being Kept

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 upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.”

In addition to discovery that might affect the outcome of a trial, the Constitution requires the pretrial disclosure of all evidence relevant to impeachment of potential witnesses. United States v. Bagley, 473 U.S. 667 (1985). Information or documents that may reveal possible biases, prejudices, or ulterior motives of a witness or evidence that tests the witness’s perception or memory is always “material.” Davis v. Alaska, 415 U.S. 308 (1974).

In decisions following Brady, the Court had made it clear that the government’s disclosure obligations are vital and enduring constitutional principles. See, e.g., United States v. Bagley, 473 U.S. 667 (1985) (reversing conviction based on government’s failure to disclose promises made to witness); Kyles v. Whitley, 514 U.S. 419 (1995) (reversing conviction based on prosecution’s failure to disclose information suggesting that police informant committed the crime). See also United States v. Agurs, 427 U.S. 97, 112 (1976) (for appellate purposes, nondisclosure of Brady material is to be evaluated in the context of the entire record).

The government’s duty to disclose Brady material includes the correlative obligation to disclose such material “at a time when disclosure would be of value to the accused.” United States v. Davenport, 753 F.2d 1460, 1463 (9th Cir.1985). Late disclosures are excusable only if the government disclosed the information as soon as it was obtained, see, e.g., United States v. Alderdyce, 787 F.2d 1365, 1369-70 (9th Cir.1986) (late disclosure of pap smear results in rape prosecution did not violate due process where “both the [G]overnment and the defendant were functioning under the same misconception”), or as soon as its relevance has become clear, see, e.g., LaMere v. Risley, 827 F.2d 622, 624-25 (9th Cir.1987) (late disclosure of alibi rebuttal witnesses did not violate Brady, because the scope of defendant’s alibi defense could not have been anticipated). Nevertheless, the Ninth Circuit has cautioned that “[n]othing we say ... should be construed to condone unnecessary delays by the government in revealing potentially exculpatory evidence.” United States v. Alderdyce, 787 F.2d at 1370.

Timely pretrial disclosure of exculpatory information is critical because it: 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 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. United States v. Snell, 899 F.Supp. 17, 20 (D. Mass.1995).

This weekend I read an article about a recent CBS News and Washington Post investigation that concluded that hundreds of defendants were sitting in prisons who had been convicted with the help of evidence from an FBI forensic test that was discredited and repudiated more than two years ago. The National Academy of Sciences had concluded that decades of FBI scientists statements to jurors linking a particular bullet to those found in a suspect's gun or cartridge box based on "comparative lead bullet analysis" were so overstated as to be considered "misleading under federal rules of evidence."

Clearly this is the type of excupatory information the Supreme Court had in mind when it held in Brady v. Maryland that the government was required to disclose exculpatory information to the defense as soon as it became known. While it is distressing enough that FBI junk science was used to obtain convictions for years, what is more distressing is that over two years have passed since the FBI acknowledged its comparative lead bullet analysis test was flawed but neither the FBI lab nor the Department of Justice have taken any steps to alert the affected defendants or to tell the courts of this problem.