MAterIAl
InDIFFerenCe:
How Courts Are Impeding
Fair Disclosure In Criminal Cases

No person shall be …

deprived of life, liberty,

or property, without

due process of law
Amendment V, U. S. Constitution

KAtHleen “CooKIe ” rIDolFI
t IFFAny M. J oSlyn
toDD H. F rIeS

Supported by a grant from the Foundation for Criminal Justice.

COPYRIGHT © 2014 N ATIONAL ASSOCIATION OF C RIMINAL D EFENSE LAWYERS
This report is subject to a Creative Commons Attribution-Noncommercial-Nonderivative Work
license (see www.creativecommons.org). It may be reproduced, provided that no charge is imposed,
and the National Association of Criminal Defense Lawyers is acknowledged as the original publisher
and the copyright holder. For any other form of reproduction, please contact NACDL for permission.

N ATIONAL A SSOCIATION OF
CRIMINAL DEFENSE LAWYERS

1660 l Street nW, 12th Floor
Washington, DC 20036
Phone: 202-872-8600
www.nacdl.org

This publication is available online at

www.nacdl.org/discoveryreform/materialindifference

MAterIAl InDIFFerenCe:
How Courts Are Impeding Fair
Disclosure In Criminal Cases
ProFeSSor KAtHleen “CooKIe” rIDolFI
Director, VERITAS Initiative
Santa Clara University School of Law

tIFFAny M. JoSlyn
Counsel, White Collar Crime Policy
National Association of Criminal Defense Lawyers

toDD H. FrIeS
Pro Bono Research Attorney, VERITAS Initiative
Santa Clara University School of Law

tHeoDore “teD” SIMon

gerAlD b. leFCoUrt

President, NACDL

President, FCJ

Philadelphia, PA

New York, NY

norMAn l. reIMer

ProFeSSor lISA A. KloPPenberg

Executive Director, NACDL

Dean, Santa Clara University School of Law

Washington, DC

Santa Clara, CA

tAble oF ContentS

AboUt tHe VerItAS InItIAtIVe . . . . . . . . . . . . . . . . . . . . . . . . iv
AboUt tHe nAtIonAl ASSoCIAtIon
oF CrIMInAl DeFenSe lAWyerS . . . . . . . . . . . . . . . . . . . . . . . . v
AboUt tHe FoUnDAtIon For CrIMInAl JUStICe . . . . . . vi
ACKnoWleDgMentS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

ii

ForeWorD

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

exeCUtIVe SUMMAry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x
I.

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.

History and Development of the Brady Doctrine . . . . . . . . . . . . . 6

III. Study Purpose and Methodology Summary . . . . . . . . . . . . . . . . 10
IV.

Profile of the Study Sample . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

V.

The Materiality Standard as Defined and Applied by the Bench . . . 15
A. Decision Comparisons — Arbitrary Application of
the Materiality Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
B. Materiality Analysis — An Arbitrary and
Unpredictable Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
C. Conclusions on the Materiality Standard . . . . . . . . . . . . . . 21

VI. Recurring Issues and Factors Affecting Brady Claim Resolution . 24
A. Late Disclosure of Favorable Information . . . . . . . . . . . . . . 24
1. Late Disclosure Sample Decisions . . . . . . . . . . . . . . . 25
2. Problems Created by Late Disclosure . . . . . . . . . . . . 26
3. Late Disclosure Conclusion . . . . . . . . . . . . . . . . . . . . 27
B. The Due Diligence ‘Rule’ . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
1. Due Diligence ‘Rule’ Sample Decisions . . . . . . . . . . . 29
2. Problems Created by the Due Diligence ‘Rule’ . . . . . 29
3. Due Diligence ‘Rule’ Conclusion . . . . . . . . . . . . . . . . 30

C. Incentive/Deal Information . . . . . . . . . . . . . . . . . . . . . . . . . 31
1. Incentive/Deal Information Sample Decisions . . . . . 31
2. Problems Created by Withholding
Incentive/Deal Information . . . . . . . . . . . . . . . . . . . . 33
3. Incentive/Deal Information Conclusion . . . . . . . . . . 36
VII. Withholding of Favorable Information . . . . . . . . . . . . . . . . . . . . 38
A. Courts Expressly State the Information Is Favorable

. . . . . 39

B. Courts Acknowledge Exculpatory or Impeachment
Value of the Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
C. Favorability of the Information Implicit in the Facts . . . . . . 41
D. Withholding of Favorable Information Conclusion . . . . . . 42
VIII. Summary of Study Findings and Conclusions . . . . . . . . . . . . . . . 45
IX. Mechanisms for Increasing Fair Disclosure . . . . . . . . . . . . . . . . . 47
A. Court Order for Disclosure of Favorable Information in
Criminal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
B. Amendment of Judicial Rules and Policies Governing
Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
C. Legislation Codifying Fair Disclosure . . . . . . . . . . . . . . . . . 50
X.

Final Thoughts

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

enDnoteS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
APPenDIx A — MetHoDology . . . . . . . . . . . . . . . . . . . . . . . . . .1
APPenDIx b — rePort gloSSAry . . . . . . . . . . . . . . . . . . . . . . . 1
AUtHor bIogrAPHIeS

How Courts Are Impeding Fair Disclosure In Criminal Cases

iii

AboU t tHe VerItAS InItIAtIVe oF
SAntA ClArA UnIVerSIt y SCHool oF lAW

he Veritas Initiative (VERITAS Initiative) is a program of Santa Clara
University School of Law. The mission of the VERITAS Initiative is to
advance the integrity of the justice system through research and data-driven
reform. The VERITAS Initiative was founded in the fall of 2010 with the release
of the most comprehensive statewide study ever undertaken on prosecutorial
misconduct in state and federal courts. The work of the VERITAS Initiative has
prompted national dialogue on the fair administration of justice and the critical
importance of accountability in the justice system.

T

iv

For more information contact:

VERITAS INITIATIVE

Santa Clara University School of Law
500 El Camino Real
408-554-4993
veritasinitiative.scu.edu

AboU t tHe nAtIonAl ASSoCIAtIon
oF CrIMInAl DeFenSe lAWyerS

he National Association of Criminal Defense Lawyers (NACDL) is the
preeminent organization in the United States advancing the goal of the criminal
defense bar to ensure justice and due process for persons charged with a crime
or wrongdoing. NACDL’s core mission is to: Ensure justice and due process for persons
accused of crime … Foster the integrity, independence and expertise of the criminal defense
profession … Promote the proper and fair administration of criminal justice.

T

Founded in 1958, NACDL has a rich history of promoting education and reform
through steadfast support of America’s criminal defense bar, amicus curiae advocacy and
myriad projects designed to safeguard due process rights and promote a rational and
humane criminal justice system. NACDL’s approximately 10,000 direct members —
and 90 state, local and international affiliate organizations totalling up to 40,000
members — include private criminal defense lawyers, public defenders, active U.S.
military defense counsel, and law professors committed to preserving fairness in
America’s criminal justice system. Representing thousands of criminal defense attorneys
who know firsthand the inadequacies of the current system, NACDL is recognized
domestically and internationally for its expertise on criminal justice policies and best
practices.
The research and publication of this report was made possible through the support of
individual donors and foundations to the Foundation for Criminal Justice, NACDL’s
supporting organization.
For more information contact:

N ATIONAL A SSOCIATION OF
CRIMINAL D EFENSE LAWYERS

1660 L Street NW, 12th Floor
Washington, DC 20036
202-872-8600
www.nacdl.org

How Courts Are Impeding Fair Disclosure In Criminal Cases

v

AboU t tHe FoUnDAtIon
For CrIMInAl JUStICe

he Foundation for Criminal Justice (FCJ) preserves and promotes the core values
of the American criminal justice system — among them due process, freedom
from unreasonable search and seizure, fair sentencing, and access to effective
counsel. The FCJ pursues this goal by supporting programs to educate the public on the
role of these rights and values in a free society; and by preserving these rights through
resources, education, training, and advocacy tools for the nation’s criminal defense bar.

T

vi

The FCJ believes that when someone is accused of misconduct, justice is only possible
when the accused can effectively test the propriety and legality of the government’s
invocation of its power to prosecute. Justice is denied when someone accused of
misconduct lacks universal and timely access to information that could expose a
wrongful prosecution. Due process and respect for fundamental constitutional principles
must be safeguarded in all criminal prosecutions.
The FCJ is incorporated in the District of Columbia as a 501(c)(3) non-profit
corporation. All contributions to the FCJ are tax-deductible. The affairs of the FCJ are
managed by a Board of Trustees that possesses and exercises all powers granted to the
Foundation under the DC Non-Profit Foundation Act, the FCJ’s own Articles of
Incorporation, and its Bylaws.
For more information contact:

FOUNDATION

FOR

CRIMINAL JUSTICE

1660 L Street NW, 12th Floor
Washington, DC 20036
202-872-8600
www.nacdl.org/foundation

ACKnoWleDgMentS

his study and report are the product of a collaborative project between the
National Association of Criminal Defense Lawyers (NACDL) and the
VERITAS Initiative of Santa Clara University School of Law (VERITAS
Initiative). The authors would like to thank Dean Lisa A. Kloppenberg, Santa Clara
University School of Law, as well as NACDL President Theodore Simon, the officers
and directors of NACDL, the Foundation for Criminal Justice (FCJ), and FCJ President
Gerald Lefcourt and, the FCJ Board of Trustees for their support.

T

Many individuals provided invaluable guidance, oversight, and support for this project,
but none more than Norman L. Reimer, Executive Director of NACDL. The success
of this project is possible because of the dedicated efforts, insightful analysis, and critical
editorial work provided by Quintin Chatman, Ivan Dominguez, Kyle O’Dowd, and
Shana-Tara Regon. Jessica Seargeant had a key role in the development of the study’s
analytic framework and the execution of the decision review process.
Santa Clara University Professor Eleanor Walker Willemsen developed and conducted
the statistical analyses supporting some of this study’s findings. The design and
publication of this report would not be possible without the creative efforts and hard
work of NACDL’s Art Director Catherine Zlomek, Freelance Graphic Designer Jason
Rogers, and NACDL Graphic Designer Jennifer Waters. Several law clerks and interns
from both organizations provided valuable assistance as well.
The authors wish to thank the numerous practitioners who volunteered to review
decisions and coding. These practitioners include: Maitreya Badami, Daryl A.
Bloomberg, William Buckman, Brett Burns, Jean-Jacques “J” Cabou, Judy Clarke, Josh
Cohen, Todd Foster, Daniel Gelb, Bill Genego, John Wesley Hall, Rodger A. Heaton,
Bonnie Hoffman, Tracy Miner, Don Rehkopf, John “Bud” Ritenour, Melinda Sarafa,
John Scardamaglia, Jodi Thorp, Richard Westling, Bill Wolf, and Professor Ellen
Yaroshefsky.
Finally, the authors are especially grateful to Rob Cary, Professor Bennett Gershman,
Peter Goldberger, Professor Ellen Kreitzberg, David Ogden, Irwin Schwartz, Professor
Linda Starr, Professor Gerald Uelmen, and Professor Ellen Yaroshefsky for reviewing
drafts of the report and offering candid and helpful feedback.
Despite these acknowledgments, any errors or omissions in the study or report are solely
the responsibility of the authors.

How Courts Are Impeding Fair Disclosure In Criminal Cases

vii

ForeWorD

he criminal justice system is always a work in progress, and its architects
need to stay tirelessly at the project of finding and implementing the right
incentives and safeguards. In 2009, the new leadership of the Department
of Justice — of which I was a part — confronted a critical aspect of that project,
fundamental issues relating to Brady v. Maryland and the issue of prosecutorial
disclosure in criminal cases. Responding to the very painful experience of the failed
Senator Ted Stevens prosecution, early in 2010 we implemented changes in
Department policy meant to provide direction and resources to prosecutors in
fulfilling their obligations to disclose favorable information. In announcing those
changes, we observed that federal prosecutors’ duty is to “seek justice,” and spoke
about the “truth-seeking role of the prosecutor.” I believe today as I did then that
the Department’s lawyers are dedicated to these principles, and in the
overwhelming majority of cases succeed admirably in serving them in letter and
spirit. But of course prosecutors have a dual role; though they are ultimately seekers
of justice and the truth, they are of course tasked as a primary matter with seeking
convictions of those they believe are guilty of crimes. That is obviously an
enormously important function. And advocates pursuing a valid and important
goal may tend to view things through a particular lens, no matter how hard they
try to get their calls right. So certainly, judges have an indispensable role and
obligation to oversee the system’s guarantees of fairness and to make sure that its
truth- and justice-seeking mission is fulfilled in each case.

T

viii

There is no more important judicial role. The issue of fair disclosure relates to the
most fundamental criminal justice issue of all — the guilt or innocence of the
accused. Whether, when, and how the prosecution shares information with the
defense also goes directly to the integrity of our legal system, the participants in
it, and our institutions of justice. Defense counsel have limited discovery tools at
their disposal — and lamentably, in the typical criminal case, often have very
limited resources to conduct their own investigations. If the prosecution for
whatever reason fails to disclose information favorable to the defense, this may
well mean that it never comes to light. No greater harm can be done by our
criminal justice system than conviction of innocent people. And we know from
tragic experience that our system — despite its many virtues — is capable of
reaching wrong results. Progress here as in any proper policy exercise depends on
continued respect for all of the legitimate values at stake, including here, centrally,
the rights of accused persons to have access to favorable information; but also
important or compelling equities of the government, including (in some cases)
concerns about the safety of witnesses or even national security concerns.
Considering the rules and approaches by which judges accommodate those critical
interests is obviously of central importance to the project.

I do not hold myself out as sufficiently expert in the case law or the methodology
to have an informed opinion about all of this study’s findings and conclusions. In
an official role, I may have disagreed with some of them in the past. But by focusing
on the shape of legal rules, and by connecting its prescriptions to data, I do believe
that this paper contributes to our urgent and permanent collective project of
seeking a criminal justice system with incentives and safeguards that best allow
the government to obtain convictions of the perpetrators of crimes while protecting
innocent people from wrongful conviction.

David W. ogden
Chair, Government and Regulatory Litigation Group,
Wilmer Cutler Pickering Hale and Dorr LLP;
Deputy Attorney General of the United States, 2009-2010

How Courts Are Impeding Fair Disclosure In Criminal Cases

ix

exeCUtIVe SUMMAry
he integrity of the criminal justice system relies on the guarantees made to
the actors operating within it. Critical to the accused is the guarantee of fair
process. For the accused, fair process includes not only the right to put on a
defense, but to put on a complete defense. The U.S. Supreme Court recognized the
importance of this guarantee over 50 years ago, in Brady v. Maryland, when it declared
that failure to disclose favorable information violates the constitution when that
information is material. This guarantee, however, is frequently unmet. In courtrooms
across the nation, accused persons are convicted without ever having access to, let
alone an opportunity to present, information that is favorable to their defense.

T

x

The high-profile cases of Senator Theodore “Ted” Stevens and Michael Morton put
a spotlight on this unfulfilled promise. The prosecutors in these cases possessed
information favorable to the defense but failed to disclose it. Convinced of the
defendants’ guilt, they worked to build cases against them while ignoring information
which tended to undercut their own view of the defendants’ guilt. Both Senator
Stevens and Michael Morton prevailed in clearing their own names, but countless
others deprived of favorable information remain incarcerated or stained with a
criminal record. Despite the reform that
Morton’s ordeal spawned in Texas, the federal
system in which Senator Stevens was
In courtrooms across the nation, accused
prosecuted remains the same and disclosure
persons are convicted without ever having
violations continue in state and federal cases
nationwide.
access to, let alone an opportunity to present,

information that is favorable to their defense.

The frequency with which these violations
occur and the role they play in wrongful
convictions prompted the National Association
of Criminal Defense Lawyers (NACDL) and the VERITAS Initiative of Santa Clara
University School of Law (VERITAS Initiative) to come together to look at the
problem from a different perspective. Many have heard about the problem of
prosecutors engaging in misconduct by failing to disclose favorable information. The
focus of such scholarship is typically on the individual prosecutor’s behavior or the
culture and policies of a particular prosecution office. Rather than look at the
prosecution, with this study, NACDL and the VERITAS Initiative ask: What role
does judicial review play in the disclosure of favorable information to the accused?

To answer that question, the authors took a random sample of Brady claims litigated
in federal courts over a five-year period and assessed the quality and consistency of
judicial review of the claims. The sample included 620 decisions in which a court ruled
on the merits of a Brady claim. Guided by an extensive methodology, the review of
these decisions included evaluating the materiality analysis employed by the courts
and a variety of other factors and characteristics. The firsthand review of each decision
in the sample and statistical analysis of the data as a whole reveals a variety of problems
and answers the question motivating the study — through judicial review, the judiciary
plays a significant role in impeding fair disclosure of favorable information.

EXECUTIVE SUMMARY
KEY FINDINGS
u The Materiality Standard Produces Arbitrary Results and
Overwhelmingly Favors the Prosecution
The authors reviewed, analyzed, and coded each of the
620 decisions that decided a Brady claim on the merits.
This process revealed that courts apply the materiality
standard in an arbitrary manner. Two courts could have
the same favorable information before them in
remarkably similar factual contexts and come out
differently on the question of materiality.
Despite the arbitrary application of the materiality
standard, the data shows that it overwhelmingly favors
the prosecution. Of the 620 decisions in the Study,
prosecutors failed to disclose favorable information in
145. The defense prevailed in just 21 of these 145
decisions — that is, in only 14 percent of these decisions
did the court deem the undisclosed favorable information
material and find that a Brady violation had occurred.
The courts ruled in favor of the prosecution in the
remaining 86 percent of these decisions.

Withheld Favorable
Information Decisions
by Brady Claim Resolution
100%
80%

86%

60%
40%
20%

14%

0%

No Violation
(124)

Violation
(21)

u Late Disclosure of Favorable Information
Is Almost Never a Brady Violation
When the prosecution discloses favorable information
late, the prejudice to the defense can be the same as if the
prosecution did not disclose the information at all. The
The defense lost in 90 percent of the
study included 65 decisions in which the prosecution
decisions in which the prosecution
disclosed favorable information late. The majority of these
withheld favorable information.
late disclosures occurred during trial, and statistical
analysis reveals that statements, rather than other types of
information, are more likely to be disclosed late. Only one
court, out of these 65 decisions, held that the prosecution’s
late disclosure violated Brady. In the other 64 decisions, the court rejected the notion
that the prejudice to the defense was sufficient to constitute a Brady violation.

How Courts Are Impeding Fair Disclosure In Criminal Cases

xi

exeCUtIVe SUMMAry
Withheld Favorable
Information Decisions
by Brady Claim Resolution
100%

Brady Violation
No Violation

xii

80%

90%

60%
40%
20%

10%

0%

No Violation
(188)

Violation
(22)

Figure 11

u the Prosecution Almost Always
Wins When It Withholds
Favorable Information
The prosecution prevailed on the question of materiality
in 86 percent of the decisions in which it failed to
disclose favorable information, and its odds improved
when late disclosure decisions are included. In 90 percent
of the decisions in which the prosecution withheld
favorable information — disclosed it late or never at all
— the defense lost. The courts held that the prosecution’s
withholding of favorable information violated Brady in
just 10 percent of these decisions.

u Withholding Incentive or Deal
Information Is More likely to result in
a Brady Violation Finding

The defense was more likely to prevail on its Brady claim when the information at
issue was an incentive or deal for a witness to testify. Despite being just 16 percent of
the Study Sample, decisions involving incentive or deal information make up over
one-third of the decisions resolved by a finding that Brady was violated. Further, the
statistical analysis revealed a strong correlation between this type of impeachment
information and findings that the prosecution violated Brady.

u Courts ‘burden Shift’ When they employ the Due
Diligence ‘rule’ Against the Defendant
When the prosecution fails to disclose favorable information, courts sometimes use
the due diligence rule to excuse this failure and deny a defendant’s Brady claim. This
occurred in just over three percent of the decisions. Employing the due diligence rule
shifts the court’s inquiry away from the
prosecution’s failure to satisfy its disclosure
obligation, and to the defense’s failure to discover
This study provides empirical support for
the favorable information on its own. By treating
the conclusion that the manner in which
the discovery process like a game of hide-andseek, the due diligence rule runs counter to the
courts review Brady claims has the result,
guarantee of fair process.
intentional or not, of discouraging

disclosure of favorable information.

exeCUtIVe SUMMAry
u Death Penalty Decisions Are More likely
to Involve Withheld Favorable Information
and to be resolved With a ‘not Material’ Finding
Favorable information was withheld or disclosed late by the prosecution in 53 percent
of the decisions involving the death penalty, but only 34 percent of all the decisions
studied. And, in death penalty decisions, withheld favorable information was more
likely to be found not material. Nearly two-thirds of the death penalty decisions
resulted in a finding that the withheld information was not material. By comparison,
only one-third of all the decisions studied were resolved with a not material finding.

xiii
Mechanisms for Increasing Disclosure
of Favorable Information
The judiciary plays a significant role in the fair disclosure of, and defense access to,
favorable information. More specifically, this study provides empirical support for the
conclusion that the manner in which courts review Brady claims has the result,
intentional or not, of discouraging prosecutors from disclosing information that does
not meet the high bar of materiality. Thus, any
attempt to address the problems identified in
this study must come from the judiciary or,
The weight of legislative action is greater
should it fail to act, the legislature.
This report offers three reform mechanisms
that can be applied by the judicial and
legislative branches at both the state and
federal levels.

than any other mechanism — it is an
enforceable message that fair disclosure is a
requisite to fair process.

u ethical rule order — A Court order for Disclosure of
Favorable Information in Criminal Proceedings
In each case, defense attorneys should request, and judges should grant, orders for the
prosecution to disclose all favorable information in accord with ABA Model Rule
3.8(d). This order, known as an Ethical Rule Order, would bind prosecutors and make
it possible for judges to sanction those prosecutors who fail to comply. If defense
attorneys and judges make this order the norm for a particular court, jurisdiction, or
even the entire judicial system, it will serve to deter willful non-disclosure. This is
even more effective when judges or courts issue a standing order for all their cases. The
Ethical Rule Order is one way that individual defense attorneys and judges can obtain
immediate results in a particular criminal proceeding, while simultaneously
encouraging broader change in disclosure practices and helping to prevent the
problematic practices identified by this study.

How Courts Are Impeding Fair Disclosure In Criminal Cases

exeCUtIVe SUMMAry
u Amendment of Judicial rules and
Policies governing Disclosure

xiv

Another mechanism for increasing fair disclosure and preventing the type of arbitrary
practices evidenced by this study is amendment of judicial rules. In many jurisdictions,
the judicial branch sets forth the rules that regulate the prosecution’s disclosure
obligations, which are then enforced by every court within that jurisdiction. These
rules are often set by the highest court in a jurisdiction or, as in the federal system, a
group of judges that are representative of the various courts within the system. As a
result, judicial branches nationwide are well-positioned to respond to the failure of the
prosecution to disclose favorable information in a timely fashion. Amendment of
court rules and policies to require fair disclosure of information could decrease the sort
of prosecutorial gamesmanship that has become commonplace and help restore
balance to the justice system.

u legislation Codifying Fair Disclosure
The most effective mechanism for reform of prosecutorial disclosure practices could
come through the legislative branch. Legislation that sets forth a clear mandate for
disclosure of favorable information, as well as comprehensive rules for the disclosure
process, would have a significant system-wide impact. The weight of legislative action
is greater than any other mechanism — it is an enforceable message that fair
disclosure is a requisite to fair process. Codifying a fair disclosure process could
increase defense access to favorable information and help prevent the problems
identified in this study. Further, enactment of this reform may deter prosecutorial
gamesmanship in the discovery context and decrease Brady claims system-wide.

Conclusion
Courts are impeding fair disclosure in criminal cases, and in so doing, encouraging
prosecutors to disclose as little favorable information as possible. With Brady, the
Supreme Court held that non-disclosure only violates the Constitution when the
information is material. This holding established a post-trial standard of review that
many prosecutors have adopted as the pre-trial standard governing their disclosure
obligations. Despite ethical rules that set forth a disclosure obligation far broader
than Brady, many prosecutor offices, and even some courts, have taken the same
incorrect position — prosecutors need only disclose as much as necessary to ensure
the conviction survives appeal.

exeCUtIVe SUMMAry
Across the nation prosecutors are guiding their disclosure obligations by a post-trial
standard that some courts have decried as unworkable in the pre-trial context.
Prosecutors are ill-equipped to apply a post-trial standard to a pre-trial obligation
without the benefit of the defense perspective and with their natural biases as zealous
advocates. Taking their cues from the courts, prosecutors are acting to the detriment
of the defense and fair process.
This study demonstrates that the odds are in favor of prosecutors who withhold
favorable information. Courts are rarely finding that the withholding of favorable
information is prejudicial enough to constitute a Brady violation. Strict judicial
adherence to the materiality standard without regard to the integrity of the process
is a direct endorsement of non-disclosure of favorable information.
Until courts embrace a broader disclosure obligation, such as that embodied in the
ABA Model Rules, and reject the premise that a prosecution’s obligation is measured
solely by Brady, they will continue impeding disclosure of favorable information. The
status quo of material indifference must yield to the guarantee of fair process.
Whether it comes through individual courts, the judiciary, or legislative action, reform
is necessary.

the status quo of material
indifference must yield to the
guarantee of fair process.

How Courts Are Impeding Fair Disclosure In Criminal Cases

xv

No person shall be …

deprived of life, liberty,

or property, without

due process of law
Amendment V, U. S. Constitution

I. IntroDUCtIon*
ifty years ago in Brady v. Maryland, the U.S. Supreme Court recognized the constitutional
importance of providing a person accused of a crime with favorable information and declared that
failure to do so violates due process when that information is “material” either to guilt or
punishment.1 Yet, studies over the last 10 years have conclusively demonstrated that this duty is often left
unfulfilled.2 Recent high profile wrongful convictions such as those of the late U.S. Senator Ted Stevens,
Michael Morton, and John Thompson have shaken public confidence in the justice system and elevated
the issue of Brady violations in the public arena. These cases and others like them show how devastating
the consequences can be when favorable information is not disclosed to those facing criminal charges.3

F

After over 50 years of discussion, debate, scholarly articles, and conferences, “state and federal criminal
justice systems appear less than adequate in assuring the prosecutorial disclosure obligations are met.”4
The growing visibility of wrongful convictions and the countless anecdotes of prosecutors withholding
favorable information prompted the National Association of Criminal Defense Lawyers (NACDL) and
the VERITAS Initiative of Santa Clara University School of Law (VERITAS Initiative) to undertake
the study that is the subject of this report. The authors took a random sample of Brady claims litigated
in federal courts over a five-year period and
assessed the quality and consistency of judicial
The impact of withholding favorable
review of such claims. Focusing on the courts, this
information extends beyond the question of
study seeks to understand the particular impact of
guilt or innocence. When this occurs, the
judicial review on defendants’ access to favorable
integrity of the entire system is at stake.
information in criminal cases.
At the outset, NACDL and the VERITAS Initiative acknowledge that this study only scratches the
surface of this problem. The question of how often prosecutors violate Brady v. Maryland is impossible
to answer because, by its very nature, the withholding of Brady material is hidden, and withheld
information may never surface. The number of cases in which a judge or jury may have convicted an
innocent person, without becoming aware of all the favorable information actually in existence, remains
unknown. One can fairly assume that for every wrongfully convicted individual who has been vindicated,
there are countless others whose innocence remains invisible to the system.
The impact of withholding favorable information extends beyond the question of guilt or innocence.
And, ramifications extend beyond the right of the accused to present a defense. When deprived of
favorable information, the right of an accused to due process is violated and the role of the judge and
jury as fact-finder is compromised. When this occurs, the integrity of the entire system is at stake.
*The Report Glossary is located at Appendix B. Any word or phrase contained in the Report Glossary will appear in bold the first
time it appears in the report text.

1

2

The failure to timely produce favorable
information to the defense is also a significant
factor in the conviction of innocent people. When
researchers for the Innocence Project looked at
DNA exoneration cases5 involving documented
appeals and/or civil suits alleging prosecutorial
misconduct, 42 percent alleged Brady violations —
non-disclosure of favorable information that would
have made a difference in the outcome of the case.6
Unfortunately, when DNA is unavailable, or it is
not relevant to a case, many individuals wrongly
convicted because of the failure to disclose
favorable information may never get justice.
The case of John Thompson illustrates what can
happen when favorable information is not disclosed.
On Dec. 6, 1984, Ray Liuzza, an executive from a
prominent New Orleans family, was robbed and
murdered near his home.7 The murder received
widespread public attention, leading to an intensive
police investigation and the Liuzza family offering
a $15,000 reward for information leading to a
conviction.8 Soon thereafter, acting on a tip, the
police arrested John Thompson and prosecutors
charged him with the murder.9

For 18 years, the new orleans District
Attorney had withheld from the defense test
results that conclusively established
someone other than Thompson committed
the carjacking.
On Dec. 28, 1984, not far from the Liuzza murder
scene, three teenagers were carjacked at gunpoint
and assaulted.10 Based on a news photo connected
to the Liuzza murder, the teens identified their
carjacker as John Thompson.11 For strategic
reasons, prosecutors obtained a conviction against
Thompson in the felony carjacking case before
trying him for the murder.12 Prosecutors brought

the carjacking charge to trial first because the
felony conviction could serve as the basis for
elevating the homicide to a capital case and deter
Thompson from testifying at the murder trial in
his defense.13 Thompson was ultimately convicted
of the Liuzza murder and sentenced to death.14
After 18 years in prison, 14 of which he spent on
death row, Thompson was facing his seventh
execution date when a defense investigator made a
critical discovery. She learned that the carjacking
perpetrator’s blood was found on one of the victims’
pants leg.15 Although the authorities had tested the
blood as part of their investigation, the results were
not disclosed to the defense. The test results
conclusively established that someone other than
Thompson committed the carjacking.16 For 18
years, the New Orleans District Attorney had
withheld these test results from the defense.17 When
the blood test results became known, Thompson
was exonerated in the carjacking case and the trial
court immediately stayed his execution.18
For the next three years, John Thompson fought
for and gained a reversal in the murder case on the
ground that the carjacking conviction had
“unconstitutionally deprived [him] of his right to
testify … at the murder trial.”19 Undeterred, the
prosecutors retried Thompson for the Liuzza
murder.20 In preparation for this second murder
trial, the defense uncovered even more information
that the government had withheld, information
that bolstered Thompson’s defense.21 The jury took
only 35 minutes to return a verdict of not guilty.22
After nearly two decades, John Thompson was
vindicated and released.23
John Thompson was 22 years old and living in a
public housing project in New Orleans at the time
of his arrest. Two years later, in another part of the
country, 32-year-old Michael Morton was living in
a middle-class Texas suburb when his life took a

similarly tragic turn.24 On Aug. 13, 1986, Morton’s
wife was brutally murdered in their home. In a
deeply disturbing chain of events, Morton was
arrested, charged, and ultimately convicted of her
murder. Michael Morton spent 25 years behind
bars before DNA evidence established his
innocence25 and he was exonerated.26
The post-conviction DNA litigation unveiled
information even more disturbing than the
conviction of an innocent man; it revealed that the
government had obtained that conviction by
failing to disclose favorable information to the
defense in violation of Brady v. Maryland.27 Eleven
days after witnessing his mother’s murder, Eric
Morton, the three-year-old son of Michael and
Christine Morton, told his grandmother Rita
Kirkpatrick what he saw.28 Despite the trauma of
the event, Eric was able to describe the crime
scene and murder in great detail. He stated that a
“monster,” not his father, had attacked his mother
and that his “Daddy” was “not home” when it
happened.29 Eric’s grandmother brought this
information to the police and, although it was
recorded in the notes of the lead investigator, the
information never reached the defense.30
When the defense team raised the possibility that
something was amiss, prosecutors provided the
trial judge with a sealed file of that investigator’s
notes and reports. The sealed file did not include
two critical pieces of information — young Eric’s
eyewitness account and the statements of the
Mortons’ neighbors who told the police that a man
in a green van had repeatedly parked on the street
behind the Mortons’ home and walked off into the
nearby wooded area.31 This information would
have provided material support to Michael
Morton’s defense that an intruder came into his
home and brutally victimized his wife. This
information was withheld from the defense and
intentionally suppressed during the trial court’s

“This court cannot think of a more intentionally
harmful act than a prosecutor’s conscious choice
to hide mitigating evidence so as to create an
uneven playing field for a defendant facing a
murder charge and life sentence.”
— In re Honorable Ken Anderson
(A Court of Inquiry)
pre-trial discovery inquiry. Absent the presence of
DNA evidence in Morton’s case, this other
undisclosed information would have remained
hidden forever.
As Morton sat in prison for a crime he did not
commit, the man who was ultimately convicted of
killing Christine Morton is suspected of taking
another life — Debra Master Baker in Travis
County, Texas — in the same brutal manner.32
Meanwhile, Morton watched his relationship with
his son Eric grow distant and eventually fall into
disarray, while the prosecutor who withheld this
information went on to win election to become a
Williamson County District Judge.33
In February 2011, during a formal “Court of
Inquiry,” a rare legal proceeding for the purpose of
reviewing a prosecutor’s conduct, Morton
explained to the court that although he does not
seek “revenge” or “anything ill” for the prosecutor,
he realizes “that there needs to be accountability”
because, “[w]ithout that, every single thing falls
apart.”34 In the court order following the
proceeding, the presiding judge wrote: “This
court cannot think of a more intentionally
harmful act than a prosecutor’s conscious choice
to hide mitigating evidence so as to create an
uneven playing field for a defendant facing a
murder charge and life sentence.”35

How Courts Are Impeding Fair Disclosure In Criminal Cases

3

4

Despite their different backgrounds —
Thompson, an African-American man living in
public housing, and Morton, a white man living in
middle-class suburbs — their stories are eerily
similar. They demonstrate the significant human
wreckage that can result from a system that fails to
ensure defendants access to information favorable
to their case. The problem is not limited by race or
class and transcends types of crime and the
boundaries of state and federal jurisdiction. In fact,
one of the most notable and recent examples of the
damage caused by the withholding of Brady
material involves a longtime U.S. senator and
allegations of corruption.
Theodore Fulton “Ted” Stevens served in the U.S.
Senate for over 40 years, from December 1968 to
January 2009. He was the longest-serving
Republican senator, holding the position of
majority whip of the Senate twice, serving as
president pro tempore of the Senate once, and
being only the third senator to hold the title of
president pro tempore emeritus. Despite this
lifelong commitment to public service, Senator
Stevens’ career did not end with the dignity
traditionally afforded a dedicated public servant.
Rather, his service was taken from him, along with
his reputation, through a miscarriage of justice.

From the start, the prosecution of
Senator Stevens was permeated with
Brady violations, making it impossible for
the senator to receive a fair trial.
On July 29, 2008, during his re-election campaign,
a federal grand jury indicted Senator Stevens on
seven counts of criminal ethics violations for failing
to report gifts related to renovations of his home.36
Maintaining his innocence and attempting to clear
his name prior to Election Day, the senator
invoked his right to a speedy trial by jury. On Oct.

27, 2008, the jury returned a verdict of guilty on all
counts and, approximately one week later, the
Alaska electorate replaced their senior senator with
his challenger.37 It was only after this electoral
defeat, and shortly before his tragic passing, that
Senator Stevens was finally exonerated.38
From the start, the prosecution of Senator Stevens
was permeated with Brady violations, making it
impossible for the senator to receive a fair trial.39
During a pre-trial interview, for example, the
government’s star witness, Bill Allen, stated that he
believed Senator Stevens would have paid
construction bills if they were sent to him.40 This
statement was crucial information for the defense,
as the senator’s knowledge of and intent to pay
constructions bills was the main issue in the case.41
The government did not give this statement to the
defense. In addition, during the trial the
government also withheld exculpatory statements
made by renovation foreman Rocky Williams
during pre-trial interviews. They also refused to
provide the defense with grand jury testimony of
Williams in which he reiterated the exculpatory
statements. Prosecutors argued that the testimony
was not “Brady material.”42
These are just a few examples of the Brady
violations exacted upon Senator Stevens. It was
only after a whistleblower pulled back the curtain
on this unjust prosecution that the senator’s
indictment was eventually dismissed.43 The
decision to move for dismissal ultimately came
from Attorney General Eric Holder himself,
following a review of the case by a new team of
Department of Justice lawyers.44 Granting the
government’s motion for dismissal, U.S. District
Court Judge Emmet G. Sullivan stated, “‘There
was never a judgment of conviction in this case.
The jury’s verdict is being set aside and has no legal
effect.’”45 He then ordered an investigation into the
government’s conduct, noting that “[t]he

government’s ill-gotten verdict in the case not only
cost that public official his bid for re-election, the
results of that election tipped the balance of power
in the United States Senate.”46 The investigation
could not, however, undo the damage to the
senator’s reputation and legacy, all the more
irreparable due to his tragic passing.
Thompson, Morton, and Stevens were all ultimately
vindicated because they were able to discover
undisclosed information that proved their claims.
Although this study has the benefit of their stories,
it is constrained by the undeniable fact that an
unknowable number of Brady violations are hidden
and no methodology, no matter how elaborate, can
account for such cases. Any study of Brady violations
will be incomplete — the full scope of the problem
is simply unascertainable. For those cases that are
visible, however, there is much to be learned.
The Thompson, Morton, and Stevens cases are
exceptional not only because the undisclosed
information surfaced, but because courts concluded
that the non-disclosures amounted to
constitutional violations. Even when undisclosed
information surfaces, it is rare for the justice system
to afford the defendant a remedy. This unfortunate
reality is in part what motivates this study. Any
attempt to alter the status quo requires an
understanding of the role judicial review plays in
shaping the dynamic between what Brady v.
Maryland requires and what actually happens in
practice. As such, the primary objective of this
study was to review a sufficient number of court
decisions in order to provide a fair assessment of
the quality and consistency of judicial review by
courts deciding claims under Brady v. Maryland.
In support of that objective, the study applies a
detailed analytic methodology to a random sample
of Brady claims litigated in federal courts over a
five year-period47 in order to answer the following

even when undisclosed information
surfaces, it is rare for the justice system to
afford the defendant a remedy.
questions: (1) To what extent are courts consistent
in the use and application of the materiality
standard when deciding Brady claims? (2) What
other issues or factors are there underlying courts’
resolutions of Brady claims? (3) To what extent is
favorable information being withheld from the
defense? These questions focus on the courts and
judicial review of claims brought under Brady v.
Maryland, as opposed to the prosecutors and the
line distinguishing ethical behavior from
prosecutorial misconduct. Rather than critique
individual actors within the system, the study seeks
to assess the system as a whole. This is consistent
with the objective of the study: to understand the
role judicial review plays in shaping disclosure of
favorable information in criminal cases.
The report that follows attempts to set forth the
answers to these questions and to document
central themes that emerged from review of the
Study Sample. As a prelude to the study’s
findings, the report also provides a brief history
of the development of Brady claims and the
gradual erosion of due process rights under Brady
v. Maryland, as well as the methodology
employed in the study. The findings demonstrate
that the deep concerns motivating the study are,
in fact, well-founded. Specifically, the data reveals
several troubling, recurring issues regarding how
courts analyze Brady claims and that application
of the materiality standard overwhelmingly favors
the government and produces arbitrary results. In
light of these findings, the report concludes with
a discussion of various reform proposals and how,
if implemented, such proposals would help
prevent these problems and increase fair
disclosure in the future.

How Courts Are Impeding Fair Disclosure In Criminal Cases

5

II. HIStory AnD DeVeloPMent
oF tHe BRADY DoCtrIne
n Brady v. Maryland, the U.S. Supreme Court held that the prosecution has the duty to furnish
favorable information to the accused and that failure to do so “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.”48 John L. Brady was convicted of capital murder and sentenced to death. Only after an
unsuccessful appeal did he learn the prosecution had withheld a statement that could have mitigated his
death sentence. Upon seeking post-conviction relief, the state appeals court held that “suppression of the
evidence by the prosecution denied [Brady] due process of law,” and remanded the case for retrial of the
question of punishment, not the question of guilt.49 Affirming this decision, the U.S. Supreme Court
concluded that “the withholding of this
particular confession [] was prejudicial to the
no matter how favorable to the defense,
defendant Brady” and he was entitled to relief.50

I

6

if the undisclosed information is not deemed
material, then there is insufficient prejudice
to constitute a Brady violation.

With this decision, “the Supreme Court
established an approach to analyze a case
retrospectively to determine whether a defendant
received a fair enough trial under general due
51
process standards.” To obtain relief under the Brady rule, the accused must show that the information
(1) was not disclosed by the prosecution; (2) is favorable to the accused;52 and (3) is material either to guilt
or punishment. If all three requirements are met, then a Brady violation has occurred and the constitutional
due process right of the accused has been violated.

No matter how favorable to the defense, if the undisclosed information is not deemed material, then
there is insufficient prejudice to constitute a Brady violation. Although the Court established this
materiality requirement in the Brady decision, its contours were not defined until later in subsequent
decisions. The two most common articulations of the materiality standard come from two Supreme Court
decisions referenced in Strickler v. Greene.53 In Strickler, relying on its decision in Bagley, the Court held
that information is material only if “there is a reasonable probability that the result of the trial would have
been different if the suppressed [evidence] had been disclosed to the defense.”54 Quoting from its decision
in Kyles, the Court further explained that “‘[t]he 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.’”55 Despite the prominence of the
Bagley and Kyles standards, lower courts sometimes articulate the materiality requirement in different
ways that increase or decrease the burden on the accused.56

The Brady decision was part of a judicial
movement led by Justice Oliver Wendell Holmes
that expanded criminal due process from the basic
procedural requirement of “notice and
opportunity to be heard,” to the more meaningful
concepts of “substantive justice” and “fair trial.”57
The Brady decision was one in a series of
decisions by the Supreme Court that
incorporated important procedural rights for
defendants and did so in ringing moral tones.
“These opinions possess special rhetorical power
because they were expressly based on fundamental
values like equality, human dignity, morality of
government, protection of the oppressed, and
privacy.”58
The Brady decision was no exception. Concluding
the government’s conduct violated Brady’s 14th
Amendment right to due process, Justice William
O. Douglas wrote,
A prosecution that withholds evidence …
which, if made available, would tend to
exculpate him or reduce the penalty helps
shape a trial that bears heavily on the
defendant [and] casts the prosecutor in the
role of an architect of a proceeding that does
not comport with standards of justice [.]59
Further, Justice Douglas explained, “Society wins
not only when the guilty are convicted but when
criminal trials are fair,” and underscored his
message by quoting the grand language inscribed
on the walls of the Department of Justice: “The
United States wins its point whenever justice is
done its citizens in the courts.”60
At its inception, the Brady rule, through its
disclosure mandate,61 offered new hope for the
strengthening of fair trial rights. In the ensuing
decades, however, the Court took Brady in two
somewhat opposing directions. It expanded the

The current permutation of Brady is a
hindrance to a “defendant’s access to the kind
of exculpatory evidence whose disclosure
Brady held to be fundamental to due process.”
— Professor Alafair burke
reach of the Brady rule in several specific instances
while at the same time it limited its application by
narrowing the definition of materiality. The Court
expanded the reach of Brady to include
information not specifically requested by the
defendant,62 information that may be used to
impeach government witnesses,63 and information
in the control of government agents regardless of
whether the prosecutor was aware of the
information.64 In light of these decisions, “Brady
appear[ed] to be an expanding doctrine into which
the Court ... injected flexibility to reflect the
realities of criminal prosecutions.”65
But at the same time, and in subsequent decisions,
the Court was in other ways moving away from a
broad interpretation of the doctrine to a narrower
definition of materiality and stricter application of
the rule.66 The Court did this by driving home that
Brady did not create a right to discovery per se, but
rather acknowledged a Constitutional Due
Process67 right to a fair trial that includes a right to
discovery of favorable information — that is
exculpatory or impeaching information of such
importance that if omitted would create “a
reasonable doubt of guilt that did not otherwise
exist.”68 This narrowing has led at least one scholar,
Professor Alafair Burke, to describe the current
permutation of Brady as a hindrance to a
“defendant’s access to the kind of exculpatory
evidence whose disclosure Brady held to be
fundamental to due process.”69

How Courts Are Impeding Fair Disclosure In Criminal Cases

7

8

But the analysis does not end there. The
parameters of a prosecutor’s obligation to disclose
favorable information, and a defendant’s
corresponding right to access that information, are
not defined entirely by Brady, and the Court has
repeatedly said so. Despite the Court’s
unwillingness to expand a defendant’s due process
right to information not constrained by the
“materiality” test, it has been reminding prosecutors
all along that they are ethically bound under
professional rules to a broader disclosure obligation
beyond what the Constitution provides a
defendant.70 The Court has long encouraged the
“prudent prosecutor to resolve doubtful questions
in favor of disclosure.”71

As the Court has emphasized, a prudent
and ethical prosecutor discloses more than
what is constitutionally required.
The Court has, on multiple occasions,
underscored the difference between what is
required under Brady to sustain a conviction and
the course an ethical prosecutor must take. The
Brady standard used by courts following a
conviction is not the rule by which prosecutors
should abide when making disclosure
determinations prior to conviction. In 1999, in
Strickler v. Greene, the Court referred to this
broad disclosure obligation when it distinguished
between “material” favorable information that
must be disclosed under the Due Process Clause
and non-material favorable information that a
prosecutor has a “duty to disclose.”72
[T]he 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.73
Through this discussion of “so-called ‘Brady
material,’” the Court was actively encouraging
prosecutors to turn over non-material favorable
information.74
A decade later in Cone v. Bell, the Court provided
additional support for this point:
Although the Due Process Clause of the
Fourteenth Amendment, as interpreted
in Brady, only mandates the disclosure of
material evidence, the obligation to
disclose evidence favorable to the defense
may arise more broadly under a
prosecutor’s ethical or statutory
obligations. As we have often observed,
the prudent prosecutor will err on the
side of transparency, resolving doubtful
questions in favor of disclosure.75
The prosecutor’s affirmative duty to disclose is
separate and apart from the post-trial standard
of review embodied in the Brady rule. And, as the
Court has emphasized, a prudent and ethical
prosecutor discloses more than what is
constitutionally required.
These somewhat disparate views on prosecutorial
disclosure obligations are not confined to the
Court’s dicta. For example, the American Bar
Association (ABA) has established a disclosure
obligation far broader than that recognized by
the Department of Justice (DOJ) in its own
guidance to prosecutors. In Formal Opinion 09454, the ABA Standing Committee on Ethics
and Professional Responsibility acknowledged
the variety of sources governing disclosure

obligations, but held that prosecutors “have a
separate disclosure obligation under Rule 3.8(d)
of the Model Rules of Professional Conduct.”76
The ABA Model Rules establish an “independent”
duty, “more demanding than the constitutional case
law, in that it requires the disclosure of evidence or
information favorable to the defense without
regard to the anticipated impact of the evidence or
information on a trial’s outcome.”77 This duty
“requires prosecutors to disclose favorable evidence
so that the defense can decide on its utility.”78 And,
unlike the constitutional decisions, the ethics rule
does not “establish an after-the-fact, outcomedeterminative ‘materiality’ test.”79
In contrast, in a Jan. 4, 2010, memo to all DOJ
prosecutors, Deputy Attorney General David W.
Ogden stated that “prosecutors should be aware
that [U.S. Attorney’s Manual] Section 9-5.001
details the Department’s policy regarding the
disclosure of exculpatory and impeachment
information and provides for broader disclosures
than required by Brady and Giglio.”80 Neither the
Ogden Memo nor the U.S. Attorney’s Manual
(USAM), however, currently includes any citation
to ABA Formal Opinion 09-454 or any ABA rules
or standards.81 Despite the broad disclosure
obligation referenced in the Ogden Memo,
disclosure of all favorable information, regardless of
materiality, is not the policy of the Department.82
Rather, USAM § 9-5.001(A) states that the
“policy is intended to ensure timely disclosure of
an appropriate scope of exculpatory and
impeachment information so as to ensure that
trials are fair.”83 Then, citing Supreme Court case
law, USAM 9-5.001(B) sets forth a prosecutorial
disclosure obligation that focuses primarily on
the concept of “materiality[,]”84 adding that
“ordinarily[] evidence that would not be
admissible at trial need not be disclosed.”85

What is clear is that the Brady doctrine
alone, as it has been circumscribed by the
courts, cannot be relied upon to ensure a
defendant’s access to favorable information.
Because the Supreme Court takes somewhat
contrary views regarding a prosecutor’s disclosure
obligations, the message to prosecutors and to
courts has been confused. Prosecutors have been
told they are constitutionally bound to disclose
only material favorable information yet ethically
bound to do more. Under a strict reading of
Brady and its progeny, however, prosecutors can
disclose very little without risk of upsetting the
conviction. The lack of clarity from the Court is
evident in the lack of consistency in the practices
of prosecutors and in the different ways in which
lower courts resolve questions of disclosure.
In addition, the difficulties inherent in the
application of Brady’s materiality standard have
caused some courts to conclude that the standard
is simply unworkable in the trial context. For
example, Federal District Court Judge Paul L.
Friedman noted that the pre-trial judgment of
materiality is “speculative” and dependent on
questions that are “unknown or unknowable.”86
What is clear is that the Brady doctrine alone, as
it has been circumscribed by the courts, cannot
be relied upon to ensure a defendant’s access to
favorable information.

How Courts Are Impeding Fair Disclosure In Criminal Cases

9

III. StUDy PUrPoSe AnD
MetHoDology SUMMAry87
he primary objective of this study was to review a sufficient number of judicial decisions in
order to provide a fair assessment of the quality and consistency of judicial review by courts
deciding claims under Brady v. Maryland. As an initial matter, the research team88 limited
the universe of decisions to those made in federal courts over a defined five-year time period from
August 2007 to August 2012.89 From that group, the Research Team identified over 5,000 decisions
in which “Brady v. Maryland” appeared in the decision text and pulled a random selection of those
decisions to arrive at the Study Sample of 1,497 decisions for closer reading, analysis, and coding.90

T

10

The Research Team then developed a detailed analytical methodology to provide quantitative answers to
the following three questions:
1. Are courts consistent in the use and application of the materiality standard when
deciding Brady claims?
2. What other issues or factors, if any, influence or underlie courts’ resolutions of Brady claims?
3. To what extent is favorable information being withheld from the defense?
To ensure consistency, the Research Team created an extensive guidance Document91 with step-by-step
instructions on how to analyze and code each decision within the Study Sample. Only the decisions
contained within the Study Sample received analysis and coding, i.e., the Study did not analyze any
subsequent treatment of the decisions by any reviewing courts.
Before discussing the study’s findings, it is important to acknowledge the limitations of the study’s
methodology. First, this research barely scratches the surface of Brady practice and jurisprudence. Brady
violations are by definition hidden and this study examines only those decisions in which a
petitioner/appellant raised a violation claim. Second, this study is based on information gathered from
post-conviction opinions available on Westlaw and, as such, the Study Sample almost exclusively reflects
cases in which the defendant exercised his right to a trial. The study therefore does not touch on the
majority of criminal prosecutions resolved without trial, which make up more than 90 percent of all
criminal cases,92 or those cases in which the undisclosed information is yet to be discovered. Further,
the troubling findings discussed in this report are all the more serious when considered in the context
of this study’s limitations — the Study Sample includes less than one-third of the federal court decisions
citing Brady during the selected five-year time period that are available on Westlaw, and it does not
include Brady claims that were abandoned before reaching federal court.

IV. PROFILE OF THE STUDY SAMPLE
he Study Sample included 1,497
decisions issued by federal courts over a
five-year time period, from Aug. 1, 2007
to July 31, 2012.

T

As illustrated in Figure One, 620 decisions or 41
percent of the Study Sample resolve a Brady claim
on the merits*,and the remaining 877 decisions or
59 percent of the Study Sample do not resolve a
Brady claim on the merits, i.e., a non-merits
decision.93 See Figure 1.
Of the 620 decisions, 433 are in cases that originated
in a state court and the remaining 187 are in cases
that arose from a federal court prosecution. As Figure
Two reflects, this is a two-to-one ratio of state to
federal prosecutions. See Figure 2.

Study Sample
Merits Decisions (620) v.
Non-Merits Decisions (877)
Merits
Decisions
41%

Figure 1

Decision Origin
State Case (433) v. Federal Case (187)
Federal Case 30%

Procedural Posture
Habeas Petitions
Appeals
Habeas Appeals
Post-Trial Motions
Trial Motions
Other

= 451
= 84
= 40
= 37
=
3
=
5

Post-Trial Motions 6%
Habeas Appeals 6%
Trial Motions <1%
Other <1%
Appeals 14%
Habeas Petitions 73%

Figure 3

11
Non-Merits
Decisions
59%

State Case 70%

Figure 2
Although these decisions present a variety of
procedural postures, nearly three-fourths are
petitions for a writ of habeas corpus.94 Figure
Three illustrates the decisions broken down by
procedural posture.95 See Figure 3.

Percentages may not total 100 due to rounding.

*As used in this report, the term “decisions” refers only to the 620 Study Sample decisions that resolve a Brady claim on the merits.

How Courts Are Impeding Fair Disclosure In Criminal Cases

Figure Four demonstrates that more of the
decisions involve a petitioner appearing pro se
than those acting with legal representation.
Specifically, 285 decisions involve a petitioner
represented by counsel and 335 decisions involve
a petitioner appearing pro se.96 See Figure 4.

As Figure Six demonstrates, the number of
decisions involving impeachment information is
nearly equal to the number involving exculpatory
information. Approximately 28 percent of the
decisions involve both impeachment and
exculpatory information. See Figure 6.

Representation Type
Counsel (285) v. Pro Se (335)

12

The Research Team also identified 59 decisions
in which the petitioner raising the Brady claim
was facing the death penalty. Thus, in nearly 10
percent of the decisions, the court assessing the
Brady claim did so with knowledge that denying
the claim and upholding the conviction could
result in the petitioner’s execution.

Counsel 46%
Pro Se 54%

Decisions by Value
of Information

Figure 4

Neither <1%

Figure Five shows the breakdown of decisions by
crime type, with violent crimes constituting over
50 percent of the 620 decisions. See Figure 5.

Both 28%

Exculpatory
Impeachment
Both
Neither

= 228
= 216
= 172
=
4

Exculpatory 37%

Impeachment 35%

Decisions by Crime Type
Violent
Drug
White Collar and Regulatory
Sex
Property
Other

Property 5%
Other 5%

= 340
= 97
= 66
= 55
= 34
= 28

White Collar & Reg 11%

Sex 9%

Drug
15%
Drug 15%
Violent
Violent 55%
57%

Figure 5

Figure 6

Percentages do not
total 100 due to rounding.

The information at issue in the decisions came
in a variety of forms, most frequently as
documentary information or statements. Figure
Seven illustrates all 620 decisions broken down
by information type.97 In order to account for the
many decisions that involve multiple types of
information, Figure Seven lumps all such
decisions into one category labeled “multiple.”
See Figure 7.

Decisions by Type
of Information

Documentary
Statements
Incentive/Deal
Physical
Other
Multiple

Incentive/Deal 9%

Physical 8%

Other 9%
Statements 21%

= 154
= 128
= 58
= 46
= 58
= 176

Multiple 28%

Documentary 25%

Figure 7
To gain a different perspective on the prevalence
of each information type in the Study Sample,
the Research Team distributed each instance of
a particular type of information
in Violation
the “multiple”
Brady
category to the total count Not
forMaterial
that type of
information without regard to decision double
Not Favorable
counting. By counting the total instances of a
No Suppresion
particular type of information, the prevalence of
that one type, within all the decisions, can be
compared to the prevalence of every other type
of information within all the decisions. Figure
Eight sets forth this comparison and reveals that
nearly half the decisions contain documentary
information and approximately two-fifths
contain statements.98 See Figure 8.

Prevalence of Information
Type in All Decisions
50%

Documentary
(297)

47%

Statements
(240)

40%

48%

39%
30%
20%

Physical
(94)

10%

15%

0

Figure 8

Incentive
(98)

16%

Other
(114)

18%

Each of the 620 decisions resolves one or more
Brady claims in one of four possible ways. In
resolving the claim, the court may have found
(1) the government did not withhold the
information at issue, (2) the information at issue
was not favorable, (3) the information at issue
was not material, or (4) the government violated
Brady by withholding favorable, material
information. Figure Nine shows the breakdown
of the 620 decisions by Brady claim resolution.
See Figure 9.

Decisions by Brady
Claim Resolution

13

50
40

47%

30

34%

20

16%

10

4%

0

No
Not
Not
Withholding Favorable Material
(292)
(98)
(208)

Figure 92

Brady
Violation
(22)

Percentages do not
total 100 due to rounding.

In 292 decisions, the court rejected postconviction relief on the grounds that the
government had not withheld the information
at issue. Another 98 decisions rejected the Brady
claim when the court concluded the information
at issue was not favorable to the defendant. In
208 decisions, more than one-third of all the
decisions, the petitioner failed to obtain relief
because the court deemed the information at
issue not material. And, in the 22 remaining
decisions, the court found that the government
violated Brady by withholding favorable,
material information.100 Thus, as illustrated
above, the court ruled in favor of the defense in
less than four percent of the decisions and sided

How Courts Are Impeding Fair Disclosure In Criminal Cases

with the government over 96 percent of the
time, with approximately one-third of those
decisions turning on the question of materiality.

14

The Research Team also identified 145 decisions
in which the government failed to disclose
favorable information.101 Notably, in 86 percent
of these decisions, the court concluded that the
undisclosed favorable information102 was not
material and rejected the Brady claim; only 14
percent of these decisions resulted in a finding
that the undisclosed favorable information was
material and, therefore, a violation of Brady.
Figure 10 illustrates this significant imbalance
— nearly nine out of 10 decisions involving
undisclosed favorable information rejected the
Brady claim and ruled in favor of the
government. See Figure 10.
Brady Violation
No Violation

Withheld Favorable
Information Decisions
by Brady Claim Resolution

disclosure was not materially prejudicial, in all
but one. Adding late disclosure decisions to
those decisions involving undisclosed favorable
information reveals an even greater imbalance.
As Figure 11 demonstrates, the courts ruled in
favor of the government in 90 percent of
decisions involving withheld favorable
information — i.e., when the government
disclosed favorable information late or never
disclosed it at all, it prevailed in nine out of 10
decisions. See Figure 11.

Withheld Favorable
Information Decisions
by Brady Claim Resolution
100%
80%

90%

60%
40%
20%

100%

10%

0%
80%

No Violation
(188)

86%

60%

Figure 11

40%
20%

14%

0%

No Violation
(124)

Violation
(21)

Figure 10
The Research Team also identified 65 decisions
in which the government did disclose the
favorable information but did so in an untimely
manner. Of these 65 late disclosure decisions,
the court determined that the favorable
information was not material, or that the late

Violation
(22)

V. tHe MAterIAlIty StAnDArD
AS DeFIneD AnD
APPlIeD by tHe benCH
primary objective of this study was to analyze the articulation and application of the
materiality standard by courts resolving Brady claims. In support of this objective, the Research
Team sought to ascertain all articulations of the materiality standard set forth by courts
subsequent to the Brady decision. Then, for each decision in the Study Sample, the researchers identified
which of those articulations, if any, that particular court used when making its materiality determination.
Of the decisions in the Study Sample that included a materiality determination, researchers found that
nearly 87 percent articulated and applied either the Bagley standard, the Kyles standard, or both.103
About five percent of the study’s decisions that included a materiality determination applied an
alternative articulation and the remaining eight percent did not include any materiality standard
articulation.

A

15

The Research Team found that, regardless of how
regardless of how the materiality standard
the materiality standard is articulated, courts apply
is articulated, courts apply the standard
the standard in an arbitrary and unpredictable
in an arbitrary and unpredictable manner.
manner. In other words, the researchers found no
relationship between the particular articulation of
the standard and the decision outcome. Even when evaluating the same information, in similar factual
contexts, and applying the same articulated standard, different courts may ultimately resolve the Brady
claim differently. In addition, the data demonstrates that materiality determinations significantly favor
the government and suggests that courts may take a results-oriented approach to the application of the
materiality standard.

A. Decision Comparisons — Arbitrary Application
of the Materiality Standard
The decision comparisons that follow demonstrate the flawed nature of the materiality standard. Even
when courts articulate it consistently, the standard may be applied in an arbitrary and subjective manner.
As shown below, the results of that application can be inconsistent.

How Courts Are Impeding Fair Disclosure In Criminal Cases

MAterIAl or not MAterIAl?
16

Key government Witness Investigated for Sexual
Misconduct with Minors and Attempt to Suborn Perjury
Factual Similarities: Peter Kott and Victor Kohring were both former members of the Alaska State House of
Representatives when they were convicted of three federal public corruption offenses — conspiracy, extortion, and
bribery.104 The convictions stemmed from a larger public corruption conspiracy orchestrated by Bill Allen, the chairman
of a large oil industry company. Kott and Kohring were alleged to have taken bribes from Allen in exchange for legislative
action. Allen struck a deal with the government in exchange for his testimony against Kott, Kohring, and others
implicated in the conspiracy, as well as former U.S. Senator Ted Stevens.105

Undisclosed Information: The prosecutors failed to disclose several thousand pages of documents, including
information that Allen had been, or was still being, investigated for sexual misconduct with minors and had attempted
to conceal that behavior by soliciting perjury from the minors and making them unavailable for trial.

United States
v.
Peter Kott

United States
v.
Victor Kohring

U.S. District Court for
the District of Alaska

U.S. Court of Appeals
for the Ninth Circuit

Peter Kott —
Information Is not Material

Victor Kohring —
Information Is Material

“Kott had ample opportunity to show, and
at trial did show, Allen’s bias based on the
substantial value of Allen’s cooperation, …
a consideration which made the jury well
aware of the powerful incentive Allen had
to shade his testimony in favor of the
government.” This evidence “may be
described as needlessly cumulative on the
question of Allen’s incentive to help the
prosecution.”

“The fact that Allen might have had a
motive to testify [] in order to gain leniency
as to his corruption charges does not mean
that evidence of a different bias of motive
would be cumulative.” This evidence “would
have shed light on the magnitude of Allen’s
incentive to cooperate” and “would have
revealed that he had much more at stake
than was already known to the jury.”

Therefore, “[t]his evidence would have been
excluded under Rule 403.”

Therefore, this evidence “does not run afoul
of Rule 403[.]”

Regarding cross-examination on the topic,
“[i]t is known that Allen had previously
denied the conduct, so he surely would
have repeated the denial. The result is that
this line of inquiry would not be of
significant assistance[.]”

Regarding cross-examination on the topic,
“even if Allen would have denied the
allegations, the jury would have been able
to observe his demeanor when he
answered the questions, which might have
been telling.”

“[A]dmission of the evidence creates a
serious danger of confusing the issues
which the jury actually needs to decide —
whether Kott is guilty of the crimes
charged, not whether Allen is guilty of
sex crimes.”

“The alleged misconduct would have added
an entirely new dimension to the jury’s
assessment of Allen. Allen was the
prosecution’s star witness.”

“In view of this court, the evidence
regarding the alleged subornation of
perjury is not material in the context of all
the evidence, and the failure to disclose it
did not prejudice Kott.”

“[H]ad the evidence of Allen’s past been
disclosed, there is a reasonable probability
that the withheld evidence would have
altered at least one juror’s assessment
regarding Allen’s testimony against
Kohring.”

U.S. District Court for
District of Alaska:
no Brady violation.
Conviction upheld.

Court of Appeals for
the Ninth Circuit:
Brady violation.
Conviction reversed.

17

MAterIAl or not MAterIAl?
18

late Disclosure of Potentially
exculpatory Physical evidence

Factual Similarities: During their respective jury trials, Michael A. Willis and Wayne D. McDuffie each pursued the same
defense theory — that he had been framed.106 Specifically, each argued that he was the victim of a police conspiracy because he
refused to cooperate with other ongoing murder investigations. The prosecution in both cases possessed, but failed to disclose until
after the trial was well underway, physical evidence that could have supported the defense theory and may have proven exculpatory
upon further investigation. The untimely disclosure of this evidence not only foreclosed such investigation, but prevented Willis and
McDuffie from presenting their defense theory in a coherent manner.

Different Crimes: The charges against Michael Alan Willis were violent in nature, first degree felony murder being the most
serious count of which he was convicted, whereas Wayne D. McDuffie was convicted of two drug charges (manufacture and
possession with intent to distribute cocaine base).
Undisclosed evidence: For Willis, the government withheld a Michigan State Police laboratory report stating that the palm
print recovered from the crime scene was suitable for comparison but that no match had been identified and that the lab requested,
but did not receive, a palm print of Willis for comparison. Following the trial, Willis learned that the Michigan State Police records
contained a copy of his palm print that could have been compared to the palm print recovered from the crime scene. In the case of
McDuffie, the government withheld the presence of a fingerprint belonging to Detective Barrington, a key witness for the
government, on a drug scale recovered from McDuffie’s apartment during a planned search pursuant to a warrant.

Michael A. Willis v.
Warden Carol Howes

United States v.
Wayne D. McDuffie

U.S. District Court for the
Eastern District of Michigan

U.S. Court of Appeals
for the Ninth Circuit

Michael Alan Willis —
late Disclosure of
evidence Is not Material

Wayne D. McDuffie —
late Disclosure of
evidence Is Material

“[The] report was not ‘suppressed’ within the meaning of
Brady … [because it] was disclosed during Officer
Calabrese’s testimony and counsel was able to
cross-examine Calabrese regarding his earlier incorrect
testimony about the contents of the report.”

“Because the disclosure of this evidence
near the end of its own case in chief
prevented McDuffie from presenting his
theory of the case in a coherent manner,
the government effectively suppressed it.”

“[I]nformation that the state police in fact had petitioner’s
palm print on file would not have impeached Calabrese or
damaged any of his other testimony, but merely would
have impeached the laboratory report.”

“This evidence is favorable to McDuffie
and
potentially
impeaching
of
Barrington.”

“[T]here is not a reasonable probability that the result of the
proceeding would have been different had the existence of
petitioner’s palm print file been disclosed at trial. The
existence of the palm print file had no substantive
exculpatory value, and its only value would have been in
impeaching Officer Calabrese’s testimony regarding the
reason why the recovered palm print was not compared with
petitioner’s palm print.”

“[H]ad McDuffie been able to present a
coherent theory of evidence tampering,
there is a reasonable probability that the
jury
would
have
discredited
Barrington and reached a different 19
conclusion in the case.”

“[The] view that ‘[t]he palmprint record was Brady evidence
because at a minimum Willis could have used it to impeach
the credibility of the investigating officer who subsequently
denied that the record existed’ … is simply incorrect.”

“This evidence supported McDuffie’s
theory that Barrington sought to frame
him in order to pressure him to
cooperate.”

Court discredits defense theory
of the case, relies on
government’s case …

Court relies on defense theory
of the case, does not consider
government’s case…

“There was extensive eyewitness testimony[] and defense
counsel strove mightily to impeach or otherwise call into
question that testimony, and at times succeeded in doing so.
Counsel focused extensively, particularly in his crossexamination of Officer Calabrese, on the utter lack of
physical evidence tying [Willis] to the crime. [Willis]
presented a vigorous alibi and misidentification defense,
calling witnesses who testified both as to his whereabouts on
the day and time of the crime and his appearance at that time,
which did not match the descriptions given by the witnesses.
... Despite this evidence, and despite [Willis’] own alibi
evidence, the jury nonetheless credited the prosecution
witnesses’ in-court identifications[.]”

“[H]ad McDuffie been able to present a
coherent theory of evidence tampering,
there is a reasonable probability that the
jury would have discredited Barrington
and reached a different conclusion in
the case.”

“Given the extensive impeachment of the prosecution case
already before the jury, it is highly doubtful that one
additional point of impeachment, on a collateral matter
which was not actually within the testifying witness’s
personal knowledge, would have affected the jury’s verdict.
Much less is there a “reasonable probability” that the result of
petitioner’s trial would have been different had it been
disclosed that the State Police in fact had a copy of
petitioner’s palm print on file.”

U.S. District Court for the
Eastern District of Michigan:
no Brady violation. Conviction upheld.

“McDuffie was unable to retain his own
experts in forensics or police procedure, or
to do any pretrial discovery into the []
chain of custody.”

“The government’s failure to disclose
this evidence was [] prejudicial, again
because it prevented McDuffie from
presenting a coherent version of his
theory of the case.”
“The prejudicial effect of the
government’s late disclosure is therefore
‘sufficient to undermine confidence in the
outcome of the trial.’”

U.S. Court of Appeals
for the Ninth Circuit:
Brady violation.
Conviction reversed.

b. Materiality Analysis —
An Arbitrary and
Unpredictable Approach

20

The disparity in the way courts resolve similar
Brady claims, as demonstrated in the preceding
decision examples, is a consequence of the highly
subjective nature of assessing the relevance and
impact of information and the inherent vagaries
in the nature of the Brady doctrine itself. In that
regard, the case of Senator Ted Stevens discussed
in the introduction is particularly illustrative
when considered alongside the two related court
decisions, United States v. Kohring107 and United
States v. Kott,108 that are compared above.
Stevens, Kohring, and Kott were all Alaska
elected officials facing charges of political
corruption, and in all three cases the government
withheld substantial information pertaining to
its star witness Bill Allen. As between Kohring
and Kott, despite reviewing nearly identical
Brady claims, the U.S. District Court for Alaska
and the Ninth Circuit Court of Appeals reached
different results.109

In Kohring and Kott, different courts
dealing with identical charges, an identical
witness, and identical information in the
same context, reached different conclusions.
In Stevens, the U.S. District Court for the
District of Columbia vacated the conviction
upon the request of the government when the
Brady violations came to light.110 At the same
time, Kohring and Kott were pursuing appellate
challenges to their respective convictions and
moved to order the government to disclose all
information “favorable to the accused.”111 In
response, the government moved to remand

both cases to the Alaska District Court and
then, for the first time, disclosed literally
thousands of pages of documents, including
multiple pieces of information that directly
impeached star witness Bill Allen and
information that had not been revealed in the
Stevens proceedings.112 Arguing that the
government’s conduct violated Brady, Kohring
and Kott moved for a dismissal of their
convictions or a new trial. The district court
rejected their claims, declaring that the
withheld information was not material, forcing
both defendants to pursue another appeal. In
both cases, however, the Ninth Circuit
disagreed — it ultimately held the undisclosed
information was in fact material and therefore a
violation of Brady. It was not until the Ninth
Circuit vacated their convictions that Kohring
and Kott were finally afforded a remedy.113 For
Kott, it took nearly a year from the Stevens
dismissal to secure this relief and, for Kohring,
the wait was over two years.114
The inclusion of the Alaska District Court’s
Kott decision and the Ninth Circuit Court’s
Kohring decision in the Study Sample is
particularly illustrative of the arbitrary manner
in which the materiality standard can be
applied.115 In Kohring and Kott, different courts
dealing with identical charges, an identical
witness, and identical information in the same
context, reached different conclusions when
applying the same legal standard. Further, the
interplay between the government’s decision to
dismiss the conviction in the Stevens case and
its decision to defend the convictions of Kott
and Kohring, even after more withheld
information came to light, illustrates the truly
disparate treatment defendants can receive
when the government withholds information
from the defense.

These decision comparisons put a human face
on the flawed nature of the materiality standard.
The data, however, illustrates another problem
— when a Brady claim is resolved on the
question of materiality, courts overwhelmingly
favor the government. Of the 620 decisions,
courts found the withheld information to be
material in only 22 — i.e., less than four percent
of the decisions were resolved with a court
finding that Brady was violated.
Acknowledging that not all the Study Sample
decisions involved the withholding of favorable
information, the Research Team individually
evaluated each of the 620 decisions to identify
only those involving favorable information that
was not disclosed.116 The Research Team found
that 145 decisions involved undisclosed
favorable information and, notably, only 21 of
those decisions (14 percent) resulted in a court
finding the government violated Brady.
Conversely, of the 145 undisclosed favorable
information decisions, the court found that the
information was not material in 124 decisions
— i.e., when the Brady claim was resolved by
application of the materiality standard, the
government won 86 percent of the time (see
Figure 10). When those decisions involving the
late disclosure of favorable information are
included, this number jumps to 210 decisions
and, of those 210 decisions, the court found the
information not material in 188, which is 90
percent of the time (see Figure 11).117
While the arbitrary application of the
materiality standard is problematic in itself, the
frequency with which courts conclude
information is not material overwhelmingly
favors the government and creates an
impression of bias.

C. Conclusions on the
Materiality Standard
Although Brady violations are often couched in
terms that place criticism on the shoulders of the
prosecutors, this is not a complete picture of the
problem. When materiality is the norm for
disclosure, earnest and ethical prosecutors are
asked to struggle with a doctrine that in many
ways is unworkable. Justice Thurgood Marshall
characterized the materiality requirement as “a
pretrial standard that virtually defies
definition.”118 For these reasons, while
recognizing the importance of strengthening and
enforcing ethical rules, experts are now turning
their attention to the Brady doctrine itself,
specifically reforms that prohibit the use of the
materiality requirement to limit disclosure, rather
than reinforcing ethical rules or disciplining
prosecutors for mistakes or failures.119

The prosecutor was so convinced of the
defendant’s guilt that DnA tests to the
contrary were, in his eyes, not material.
The Brady rule is no match for this sort of
blinding conviction.
Brady articulates a post-trial standard used by
reviewing courts when assessing the prejudice of
non-disclosure in the context of due process
demands. This may make sense in the post-trial
context, but use of Brady as the pre-trial standard
for determining disclosure obligations is
fundamentally flawed. It is flawed because it asks
a prosecutor to assess the materiality of
information in relation to the “whole case” before
there is a “whole case” to measure the information
against.120 It is impossible to weigh the material
value of information in a case before it is tried,
before the issues are known, and without the

How Courts Are Impeding Fair Disclosure In Criminal Cases

21

benefit of the defense theory. The job of correctly
assessing materiality prospectively, when
materiality can only accurately be measured
retrospectively, is guesswork under the best of
circumstances. According to the Agurs Court,
“[t]he significance of an item of evidence can
seldom be predicted accurately until the entire
record is complete.”121

22

Further, the problem is compounded by the
cognitive biases inherent in human nature. In the
prosecutor’s dual roles of advocate and minister
of justice, with the difficult job of deciding what
information to disclose to her opponent, cognitive
bias takes on exceptional importance.
Confirmation bias is a type of cognitive bias that
signifies the tendency to seek or interpret
information in ways that support existing beliefs,
expectations, or hypotheses.122

Judges are under considerable pressure
from the system to uphold convictions
and are limited in many of the same
ways as prosecutors when attempting to
measure materiality.

A prosecutor reviewing a case file for the first
time is testing the hypothesis that the defendant
is guilty and is looking for information to confirm
that expectation.123 Because the police or agents
have “solved” the case, there will undoubtedly be
information in the file to support the guilt
hypothesis. Thus, as a result of confirmation bias,
the prosecutor that expects to become convinced
of guilt then engages in selective information
processing, accepting as true information that is
consistent with guilt and discounting conflicting
information as unreliable or unimportant.
Information discounted as unpersuasive,

unreliable, or unimportant will rarely rise to the
level of “material” in the mind of that prosecutor.
Common examples of this phenomenon can also
be seen when requests are made for post-trial
DNA testing in cases in which prosecutors start
out convinced of the defendant’s guilt. This is
illustrated in the case of Ronald Williamson, the
subject of John Grisham’s first book of nonfiction. Grisham writes: “Bill Peterson [the
prosecutor] liked the idea of DNA testing. He
had never wavered in his belief that Williamson
was the killer, and now it could be proved with
real science.”124 But after the DNA tests
exonerated Williamson, the prosecutor’s opinion
was not affected. Grisham wrote: “Peterson was
still convinced Ron Williamson had raped and
murdered Debbie Carter, and his evidence had
not changed. Forget the DNA.”125 The prosecutor
was so convinced of the defendant’s guilt that
DNA tests to the contrary were, in his eyes, not
material. The Brady rule is no match for this sort
of blinding conviction.
Even for the most ethical prosecutor, application
of the materiality standard is not done in a
vacuum and rarely considers the defense
perspective — the application is unfairly
influenced by the prosecutor’s theory of the case,
even if inadvertent. In light of what is a pliable
materiality standard, a prosecutor, with a singular
drive to win his case, might be inclined to
conclude that information is not material.
Prosecutors are not only zealous advocates but
also ministers of justice responsible for ensuring
the fairness of a judicial process.
[T]he dual role that the prosecutor must
play poses a serious obstacle to
implementing Brady. The prosecutor is by
trade, if not necessity, a zealous advocate.

He is a trained attorney who must
aggressively seek convictions ... at the
same time, as a representative of the state,
he must place foremost in his hierarchy of
interests the determination of truth. Thus,
for purposes of Brady, the prosecutor must
abandon his role as an advocate and pore
through his files, as objectively as possible,
to identify the material that could
undermine his case. Given this obviously
unharmonious role, it is not surprising
that these advocates oftentimes overlook
or downplay potentially favorable
evidence.126
And for those prosecutors practicing close to the
ethical line, the nature of the materiality standard
provides an opportunity for engaging in a kind of
gamesmanship that is wholly inconsistent with
the spirit of Brady and, quite possibly, in violation
of Brady’s mandate.127
Unless the jurisdiction has adopted open file
discovery, the prosecution’s file is not available to
the defendant or to the court absent the
prosecutor’s permission.128 The justice system
therefore depends on the prosecutor to recognize
the significance of the information and to
willingly disclose it. This makes little sense in
cases in which the decision to disclose jeopardizes
the prosecution’s case.129 The problem is
exacerbated since such decisions are almost never
subject to review.

this Study not only provides quantitative
evidence that the materiality standard favors
the government, but it demonstrates how such
an approach is arbitrary, and, therefore, unjust.
support that verdict, and pressures ... to finalize
criminal judgments, is in little better position to
review the withheld evidence than the
prosecutor.”130 The reviewing court has a record
of what was presented at trial, but rarely has
insight into that which is not in the record —
defense theories and strategic decisions based on
what was disclosed, additional information that
could have been discovered, what influenced the
jury’s decision, and how the disclosure might have
tipped the scales.
Despite these uncertainties, judges are left to
make these decisions in a vacuum and, when the
decision turns on the question of materiality, as
this Study demonstrates, the defense rarely wins.
This Study not only provides quantitative
evidence that the materiality standard favors the
government, but it demonstrates how such an
approach is arbitrary, and, therefore, unjust.

Judges face similar challenges and are just as
susceptible to confirmation bias as anyone else.
They are under considerable pressure from the
system to uphold convictions and are limited in
many of the same ways as prosecutors when
attempting to measure materiality. As the
Supreme Court acknowledged, “The reviewing
court, faced with a verdict of guilty, evidence to

How Courts Are Impeding Fair Disclosure In Criminal Cases

23

VI. reCUrrIng ISSUeS AnD
FACtorS AFFeCtIng BRADY
ClAIM reSolUtIon

24

nalysis of the Study Sample reveals some recurring issues in the decisions and certain factors that
tend to influence courts’ resolution of Brady claims. First, a significant number of the decisions
involved the late disclosure of favorable information.131 Second, the Research Team identified
a group of decisions in which the court denied the Brady claim because “the defense could have obtained
the evidence on its own with reasonable diligence,”132 sometimes in instances in which defendants had
little ability to access the information. Third, in a large portion of the decisions — nearly one of every six
— the Brady claim involved information of an incentive or deal for a witness to testify or alleged facts
suggesting the existence of a deal for a witness to testify.

A

of the 65 late disclosure decisions,
nearly all involved a disclosure taking
place after the start of trial and, in all
but one, the courts concluded the timing
was not materially prejudicial.

A.

late Disclosure of
Favorable Information

The Study Sample includes 65 late disclosure
decisions.133 A late disclosure decision is a decision
in which the accused asserts a Brady claim based
on the untimely disclosure of favorable
information
During
Trial by the prosecutor. The timing of disclosure in these
decisions ranges from shortly before trial to long after conviction, with the large majority taking place
during trial. Specifically, the Research Team
identified 12 decisions involving late disclosure
Timing of Late Disclosures
pre-trial, 53 decisions where the favorable
Pre-Trial = 12
During Trial = 53
information was disclosed during trial, and three
Post-Trial = 3
decisions where the favorable information was
the timing
disclosed after trial.134 Figure 12 shows
During Trial 78%
Pre-Trial
of the disclosure — pre-trial, during trial, and
after trial — for decisions involving late disclosure
Post-Trial
Pre-Trial 18%
of favorable information. See Figure
12.
Post Trial 4%

Figure 12

The rules that govern the timing of favorable
information disclosures vary, but any such
disclosure that takes place after the start of trial is
untimely under most rules. Federal districts differ
widely, but all require disclosure of favorable
information before trial.135 There is also disparity
among state disclosure requirements, ranging from
10 days after arraignment to not later than seven
days before trial.136 In addition, as the Supreme
Court recognized in Cone v. Bell,137 a prosecutor’s
disclosure obligation “may arise more broadly
under a prosecutor’s ethical or statutory
obligations” than under Brady. The Court cited the
ABA Criminal Justice Standards, which encourage
prosecutors to disclose favorable information at the
“earliest feasible opportunity,”138 as well as ABA
Model Rule of Professional Conduct 3.8(d).139 The
Model Rule encourages “timely disclosure,”
clarified in ABA Formal Opinion 09-454 to mean
“as soon as reasonably practical” after the
prosecutor becomes aware of the information.140
Of the 65 late disclosure decisions, nearly all
involved a disclosure taking place after the start
of trial. In all but one of these 65 decisions, the
courts concluded that the defendant was not
materially prejudiced by the timing of the
disclosure. By excusing this behavior, the judiciary
undermines the clear rules intended to protect a
defendant’s access to timely disclosure of
favorable information.141

1.

late Disclosure
Sample Decisions

Disclosing favorable information late can render
that information useless, either by preventing the
defense from following up on potential leads or by
interfering with the ability to develop a cogent
defense theory or an alternate theory of a case. The
Jackson v. Senkowski decision illustrates these
precise issues.142

In Jackson, the favorable information was disclosed
three and a half years after it was in the prosecutor’s
control — too late to be of any value to the defense
and having the same effect had it never been
disclosed. Just a couple days after a multiple
homicide, an eyewitness made two separate
statements to the police and prosecutor, respectively,
supporting Jackson’s defense theory.143 Specifically,
the eyewitness stated unequivocally that Jackson
was in the stairwell, not inside the apartment with
the victims, when the fatal shots were fired. The
statements also included leads to other possible
perpetrators of the crimes. The prosecution
withheld these two favorable statements for three
and a half years, disclosing them just six months
before trial. By then, the witness’s “memory of the
incident had diminished to the point that he could
no longer recollect any of the events at issue.”144

25

There is no Brady violation as long as Brady
material is disclosed in time for “its
effective use at trial,” a phrase that is
interpreted in such a way as to give
considerable deference to the prosecution.
As a result of the prosecution’s late disclosure,
Jackson lost the ability to present eyewitness
testimony that supported his version of the facts
and to pursue other leads. When affirming
Jackson’s conviction, the court acknowledged the
favorable nature of these two statements, but held
that “the trial judge effectively remedied any
prejudice stemming from the prosecution’s Brady
violation” when it severed Jackson’s trial from his
co-defendants, allowed the admission of the two
favorable statements into evidence, and instructed
the jury that they could draw an adverse inference
from the prosecution’s failure to disclose.145
Jackson was convicted of multiple counts and
sentenced to 25 years to life in prison.146

How Courts Are Impeding Fair Disclosure In Criminal Cases

26

In another decision, Chinn v. Warden of Mansfield
Correctional Institution, the disclosure of favorable
information during the trial prevented the defense
from following up on potential leads.147 At trial,
during the cross-examination of a key government
witness, the defense learned for the first time that
the witness had seen a third person at the crime
scene just before the crime occurred. It was also
revealed that the witness made a statement to this
effect to both the police and the prosecutor directly,
but it was never disclosed to the defense. Although
defense counsel “was afforded the opportunity to
fully cross-examine” the witness on this
information, the timing of this disclosure
precluded any additional investigation.148

late disclosure handicaps pre-trial
preparation by a defendant’s legal team and
can have the same profoundly unfair
consequences as never disclosing the
information at all.
Chinn argued that the delayed disclosure of this
favorable information “effectively deprived him and
his counsel of the opportunity to pursue an
investigation[,] … to explore alternative [defense
theories], to fully present inconsistencies in the
testimony of the State’s witnesses, and to show
weaknesses in the State’s evidence.”149 If the defense
had these opportunities, Chinn asserted, then “there
was a reasonable probability that the result of the
proceeding would have been different.”150 Rejecting
the notion that the late disclosure caused any
prejudice, the court stated: “It is purely speculative
that defense counsel would have been able to track
down this unidentified third person and what he
would have said.”151 The court concluded the
prosecution did not violate Brady and upheld
Chinn’s conviction and death sentence.

These decisions demonstrate that the late disclosure
of favorable information — in some cases years
after the prosecutor had control of the information
— has the same profoundly unfair consequences as
never disclosing the information at all.

2.

Problems Created by
late Disclosure

Courts generally take the position that there is no
Brady violation as long as Brady material is
disclosed in time for “its effective use at trial,”152 a
phrase that is interpreted in such a way as to give
considerable deference to the prosecution.153
Despite the judicial standard for what constitutes
an excusable late disclosure,154 the reality is that late
disclosure of favorable information poses serious
challenges for the defense.
Late disclosure handicaps pre-trial preparation by
a defendant’s legal team. Yet prosecutors withheld
favorable information until after opening
statements in nearly all the late disclosure decisions
in this Study Sample. By the time the opening
statement is given, the defense in most cases is
already committed to its theory of the case. It can
be devastating when the prosecution discloses
information for the first time after the defense has
delivered its opening statement, particularly when
the information contradicts an assertion made in
the opening or when it is critical information that
should have been addressed in the opening. After
the defense has delivered the opening statement, it
is often too late to take meaningful advantage of
new information or follow up on leads that require
further investigation.
Importantly, late disclosure also increases the
likelihood that an innocent defendant, unaware that
favorable information exists, will plead guilty155
rather than risk conviction of a more serious crime
and higher sentence after trial.156 According to
retired U.S. District Court Judge Lee Sarokin,

Roughly 20 percent of those that have been
exonerated confessed to the crimes with
which they were charged and convicted.
Most of those involved persons who had
actually gone to trial, but we have no way of
knowing how many there are who merely
entered guilty pleas through bargains and
never appealed as a result. … [O]nly about
5 percent [of criminal cases] actually go to
trial and the balance are resolved by plea
agreements.157
Judicial tolerance of late disclosure enables
prosecutors to pressure a defendant, who would
otherwise exercise his right to a trial, to accept a
plea agreement.
Sometimes the late disclosure contains information
probative of an issue that concerns a witness who
has already taken the stand and been excused.
Making use of that kind of information requires
recalling the witness and interrupting the flow of
the trial. Courts sometimes suggest a continuance
to give the defense time to pursue the witness for
State
recall or to make use of other newly produced
information as a proper remedy for late
the flow
disclosure,158 but that too risks disruptingFederal
of the case and jurors blaming the defense for
prolonging the trial. This can undercut the value
of the information and force the defense, after
weighing the options, to conclude that recalling the
witness is not worth the risk. When defense
counsel fails to ask for a continuance, however,
some appellate courts interpret this to mean timely
disclosure would not have made a difference to the
defendant.159

3.

late Disclosure Conclusion

Nearly half of the late disclosure decisions in the
Study Sample involved statements, suggesting that
witness statements are disclosed late more often
than other kinds of information.160 This makes

There is very little excuse for a prosecutor
to disclose witness statements late.
sense in the context of federal cases because the
Jencks Act does not require disclosure of
government witness statements until after the
witness has testified on direct examination.161
However, of the late disclosure decisions involving
statements, only nine are decisions that originated
in federal court where the Jencks Act applies. As
illustrated in Figure 13, the majority of the late
disclosure decisions involving statements are in
decisions that originated in state court where the
Jencks Act does not apply and where witness
statements are not exempt from rules of discovery
that require information be turned over before
trial.162 See Figure 13.

Late Disclosure Decisions
Involving Statements
State-Originated (23) v. Federal-Originated (9)

Federal-Originated
28%

State-Originated 72%

Figure 13
The side-by-side pie charts in Figure 14 illustrate
the overrepresentation of statements in late
disclosure decisions as compared to statements in
all decisions. Of the 620 decisions, approximately
39 percent involved statements. However, of the
late disclosure decisions, 49 percent involved
statements. See Figure 14.

How Courts Are Impeding Fair Disclosure In Criminal Cases

27

Statements Overrepresented
in Late Disclosure Decisions

ements
(379)
ements

atements

All Decisions
Statements 39%
No Statements 61%

atements

tements (33)

28

Late Disclosure Decisions

ements
Statements 49%
No Statements 51%

Figure 14
There is very little excuse for a prosecutor to
disclose witness statements late. Witness
statements are, with rare exception, recorded in
the earlier phases of criminal investigations.
Prosecutors not only have access to witness
statements early in the process, but could not
develop their case-in-chief without them. When
prosecutors exercise their discretion to delay
disclosure of favorable material without
justification, they are taking advantage of judicial
tolerance of late disclosure and unfairly
disadvantaging the defense. Except in unusual
circumstances in which disclosure of a witness
statement would put the witness in jeopardy,

even when the government failed
to disclose favorable information in a timely
fashion, it still prevailed on the Brady claim
in over 98 percent of the decisions — an
almost perfect record.

there is no justifiable basis for prosecutors to
disclose witness statements late.163
The findings of this report demonstrate that, with
65 late disclosure decisions, the practice is
common.164 Over 10 percent of the Study’s
decisions involved the late disclosure of
information. Due to the generally accepted
notion that there is no Brady violation if the
information is disclosed in time for “its effective
use at trial,”165 courts almost never find the late
disclosure of information a violation of Brady. In
fact, of the 65 late disclosure decisions in the
Study Sample, only one resulted in a Brady
violation. Thus, even when the government failed
to disclose favorable information in a timely
fashion, it still prevailed on the Brady claim in
over 98 percent of the decisions — an almost
perfect record. Judicial indifference encourages
the continued practice of late disclosure, which
the data strongly suggests has evolved into a trial
tactic rather than an allowance for exceptional
and necessary circumstances.166

b. the Due
Diligence ‘rule’
The Study Sample includes 19 decisions in which
the court denied the Brady claim based, at least in
part, on an assertion that the defense knew or
should have known about the relevant
information or could have obtained the
information through the exercise of its own due
diligence.167 In binding the defendant to this due
diligence ‘rule,’ courts reason that the
prosecutor’s failure to disclose the relevant or
favorable information is not a breach of duty if
the defendant with any reasonable diligence could
have obtained the information on his own.168
These courts conclude that Brady simply is not
implicated if “a defendant knew or should have
known the essential facts permitting him to take

advantage of any exculpatory information[.]”169
When a court invokes the due diligence rule,
however, it is engaging in burden shifting —
alleviating the prosecution from its obligation to
disclose the relevant or favorable information by
imposing an obligation on the defense to seek out
the information.

1.

Due Diligence ‘rule’
Sample Decisions

The majority of due diligence decisions in the
Study Sample involved information contained
within police reports and government documents.
For example, in Abdur’Rahman v. Colson, portions
of a police report documenting the erratic behavior
of Abdur’Rahman were withheld from the
defense.170 The information in these redactions
supported the central theme of Abdur’Rahman’s
defense — that he was a man who suffered
emotional problems, was particularly susceptible to
manipulation, and was not the calculated depraved
killer the prosecutor depicted at trial.171 Specifically,
the redacted portions memorialized observations
that, upon arrest at the police station,
Abdur’Rahman cried and banged his head against
the table and the wall, and that after the detectives
got him under control and relocated him to the
booking room, he again began banging his head
against the wall.172 The government offered no
explanation for the redactions and failure to provide
a complete report to Abdur’Rahman.
The defense argued that the report could have
caused one or more jurors to vote in favor of a life
sentence over death.173 The court, in its majority
opinion, rejected the defense argument: “[W]e are
not convinced that, at the time of the sentencing
phase, petitioner did not know the essential facts
of the behavior described in [the Detective’s]
report. … The prosecution’s suppression of this
part of [the Detective’s] report does not
undermine our confidence in petitioner’s

Under the due diligence ‘rule’, a prosecutor
is encouraged to hide, and a defendant is
unfairly burdened to seek, information
that a prosecutor should disclose.
sentence.”174 The court reasoned further: “If
[defense] counsel did not know the essential facts
of Abdur’Rahman’s head-banging[,]” then “he
likely should have discovered them through
further investigation.”175 The court’s reasoning
assumes, incorrectly, that a defendant is capable of
telling his lawyer the statements he made and the
behavior he engaged in during an extreme
emotional disturbance. Further, it minimizes the
weight that a jury might give to the recorded
observations of the defendant by a police officer.
As acknowledged by Judge Cole in his dissent,
“[T]he fiction that the defense had the time and
aptitude to discover what the prosecution had a
constitutional obligation to provide underpins the
[court’s] dismissal of the exculpatory evidence at
issue[.]”176 Further, “[w]ith respect to the [] report,
the majority washes its hands of the prosecution’s
deliberate withholding of this evidence by insisting
that [defense] counsel knew the fuzzy contours of
the report and that through investigation he
‘should have discovered’ the essential facts that it
contained.”177 In that regard, the court minimized
the weight of a detective’s written statement
contained within a police report by equating it with
an oral statement made by a defendant that, on its
face, appears self-serving.

2.

Problems Created by the
Due Diligence ‘rule’

The due diligence rule puts unreasonable
expectations on defendants to obtain information
that is not readily accessible to the defense, but
which is almost always within easy reach of

How Courts Are Impeding Fair Disclosure In Criminal Cases

29

prosecutors.178 Under the due diligence rule, a
prosecutor is encouraged to hide, and a defendant
is unfairly burdened to seek,179 information that a
prosecutor should disclose. The rule is rationalized
on two grounds. “First, prosecutors should not be
punished for failing to provide the defense with
facts or [information] that defendants or defense
counsel could have obtained themselves.”180
Second, if a defense attorney is not diligent, the
defendant can subsequently raise a claim of
ineffective assistance of counsel.181

30

These rationalizations “are contrary to the Due
Process Clause, as interpreted in Brady and its
progeny.”182 The first rationale runs contrary to
the truth-seeking process. The inspiration behind
Brady is the concept that justice prevails when all
the evidence is before the jury. The second
rationale, instituting an ineffective assistance of
counsel claim as a fail-safe, is troubling for several
reasons. It is a waste of government resources to
require the defendant to unnecessarily pursue an
ineffective assistance of counsel claim. This is
especially so when the situation could easily have
been avoided had the prosecutor shared the
information in the first place. Further, an
ineffective assistance of counsel claim, considered
years after the information is withheld and years
after conviction, almost never leads to relief for
the defendant and “is no substitute for having the
benefit of the evidence at trial when the
defendant might avoid the conviction
altogether.”183 Even where counsel is found to be
ineffective, it is extremely difficult for a defendant
claim to obtain relief under harmless error
analysis.184

For some prosecutors, the due diligence rule
facilitates the sort of gamesmanship that
undermines the intent of Brady.

The due diligence rule is contrary to due process
and inconsistent with Brady jurisprudence, which
requires that “evidence tending to show
innocence, as well as guilt, be fully aired before
the jury.”185 The due diligence rule relieves the
prosecutor of his obligation to “assist the defense
in making its case”186 and imposes an expectation
on a defendant to access information that is often
not realistically within reach. A defendant’s ability
to actually obtain the information is often limited
by a lack of resources — resources that
prosecutors readily have at their disposal.

3.

Due Diligence
‘rule’ Conclusion

This study illustrates the ramifications of courts
invoking the due diligence rule — prosecutors are
incentivized to withhold relevant or favorable
information, rather than encouraged to abide by
their duty to err on the side of disclosure.187 In 19
decisions, or just over three percent of the Study
Sample, courts imposed the due diligence rule
upon the defendant and excused the prosecution’s
non-disclosure. The undisclosed information in
most of these due diligence decisions fits into four
major categories: (1) witness statements,188 (2)
defendant’s own statements or conduct,189 (3)
witness criminal records,190 and (4) police
reports.191 Witness statements and police reports
are typically in the sole possession of the
prosecution team, making the prosecution, not
the defense, best positioned to know of the
information’s existence. And when in possession
of criminal records, the prosecution’s decision to
disclose that record to the defense should not turn
on whether the record is publicly available — it
should simply be disclosed.

For some prosecutors, the due diligence rule
facilitates the sort of gamesmanship that
undermines the intent of Brady. Judicial reliance
on the due diligence rule turns the Brady inquiry
away from the prosecutor’s obligation to disclose
favorable information and, ultimately, decreases
defense access to favorable information.192
Despite the prevalence of courts imposing the due
diligence rule on the defense, it is worth noting
that a recent Michigan Supreme Court opinion
held “that a diligence requirement is not
supported by Brady or its progeny.”193

C. Incentive/Deal
Information
According to Northwestern University Law
School’s Center on Wrongful Convictions, 45.9
percent of documented wrongful capital
convictions have been traced to false informant
testimony, making “snitches the leading cause of
wrongful convictions in U.S. capital cases.”194 In
spite of demonstrated proof that informant
testimony is a leading cause of wrongful
conviction, prosecutors continue to rely on it
heavily.195 As reflected in Figure 15 on page 36,
within the 620 Study Sample decisions, a total of
101 involved incentive/deal information. These
are decisions in which prosecutors made deals
with witnesses, witnesses had an admitted selfinterest to testify, witnesses received unexplained
benefits, or there was a suggestion that a witness
had a self-interested motive to testify.

1.

Incentive/Deal Information
Sample Decisions

Notwithstanding the clear impeachment value of
information that a witness is testifying in
exchange for government favors or has another
incentive to testify against the accused, courts
routinely hold that such information is not

material and that its non-disclosure does not
amount to a Brady violation.

u Deal with Witness to testify
In Hunt v. Galaza, evidence of a deal with a
witness was disclosed only after Victor Hunt’s
trial and conviction for second-degree murder.196
The prosecutor informed Hunt’s defense counsel
that a discovery violation had occurred — that the
government had failed to disclose that a witness
had been offered a deal in exchange for testifying.
In response to Hunt’s request for post-conviction
relief, the court said, “There is no dispute
regarding whether the evidence of [the witness’s]
proposed plea deal was favorable to petitioner or
was suppressed by the government.”197
Nonetheless, the court held that because the
witness had been impeached at trial with
information of prior convictions, pending
criminal charges, and a mental health problem,
the deal information was cumulative and
therefore not material.198

31

Despite what the court said was the
“undeniably damaging” effect of the
witness testimony, it rejected the notion that
this additional impeachment evidence
could have made a difference.
— Payton v. Cullen
u Admitted Self-Interested
Motive to testify
In Payton v. Cullen,  a key prosecution witness
testified that he was not working for a law
enforcement agency “in any capacity.”199 The
witness’s true role only came to light more than
two decades after William Payton was convicted

How Courts Are Impeding Fair Disclosure In Criminal Cases

of rape and murder.200 The witness then admitted
that, at the time of his testimony, he “was and had
been for some time working for various police
agencies”201 and considered himself to be working
as a government agent during that time. Seeking
relief for the prosecution’s failure to disclose this
information, Payton argued that impeachment of
the witness with these facts would have “changed
the calculus on the believability of his
testimony”202 and affected the jury decision.

32

The court, however, found that “[w]hile it would
no doubt have been helpful to [Payton] because of
its impeachment value ... [t]he jury knew that [the
witness] had prior convictions, and that he had
recently pled to a felony robbery charge ... [and]
hoped for leniency for testifying against
Payton.”203 The court reasoned that the jury was
well aware that the witness “had a motive for
testifying, and for testifying in such a way as to
maximize benefit to himself.”204 Despite what the
court said was the “undeniably damaging” effect
of the witness testimony, it rejected the notion
that this additional impeachment evidence could
have made a difference.205 The court found the
information not material and Brady not violated.

“[P]rosecutors are adept at holding out
hopes for leniency to a cooperating witness
without creating any legally cognizable
‘promise’ subject to disclosure.”
— r. Michael Cassidy
u Unexplained benefits given to
Prosecution Witness
In Cooper v. McNeil, Richard Cooper, a Florida
inmate, was convicted of three counts of firstdegree murder.206 During the penalty phase, the

prosecution called an incarcerated former police
officer who had previously served as a jailhouse
informant. By recounting a confession that
Cooper allegedly made to him, the witness
provided the prosecution with damning
testimony in support of the death penalty. The
defense knew of the witness’s past work as an
informant, and that information was shared with
the jury, but the prosecution did not disclose any
information on the benefits or incentives the
witness had for testifying.207
Seeking post-conviction relief, Cooper argued
that the witness received a variety of benefits —
a trip outside the prison to eat dinner with his
family, conjugal visits, and a reduction of sentence
in three grand theft cases — that were in
exchange for his testimony.208 Lacking evidence
that tied these benefits directly to the witness’s
testimony, the court dismissed Cooper’s claim as
mere speculation. The court found “a dearth of
evidence in the record” to support the defense
claim. The one exception was the opportunity the
witness had to leave the prison to have dinner
with his family.209 In that instance, the court
accepted the witness’s representation that his
extraordinary opportunity to take a trip outside
the prison to have dinner with his family was not
a favor in exchange for his cooperation but rather
“was granted because he was not allowed the
same contact visits as other inmates due to his
solitary confinement, which was because of
security reasons[.]”210

u other Information
Suggesting Incentive
In United States ex rel. Young v. McCann,211 James
Young was prosecuted and convicted of murder
in the gang-related shooting of two men near a
Chicago housing project. According to the
prosecution, the shooting was to avenge a sexual
assault of A.W., Young’s girlfriend, committed by

rival gang members. Immediately after the
killings, police interviewed A.W., who denied any
connection to Young and the events surrounding
the shooting. She was later called as a witness
before the grand jury where she again denied
involvement. At trial, however, A.W.’s testimony
contradicted her earlier version of events — she
implicated Young and four other gang members
in the murders.212
Specifically, A.W. testified that she reported the
assault to Young and walked him and members
of his gang around the neighborhood to identify
her attackers. Another prosecution witness
testified that a few hours later Young and his
fellow gang members committed the murders.
During her testimony, A.W. explained that her
prior account had been untruthful and motivated
by her fear at that time of Young and other gang
members.213 She said that she did not provide the
“true account” to the officer and assistant State’s
attorney until after she was relocated out of the
housing project.214
Young argued that A.W.’s trial account was
motivated by favors she received from the State.
First, Young pointed out that A.W’s testimony
changed only after the State relocated her out of
the housing project. Young also argued that
prosecutors failed to provide him with her new,
different version of the events. Second, “the State
failed to disclose that police had promised A.W.
that she would not be prosecuted for perjury if
she gave a different version of events at trial.” 215
The court rejected both defense claims and
affirmed Young’s conviction. It found no
information to support the immunity claim,
noting that “[O]fficer Winstead testified that he
informed A.W. that he could make no guarantee
of immunity.”216 The court reasoned further that
Young “had sufficient opportunity to explore any
suspected bias on cross-examination.”217

2.

Problems Created
by Withholding
Incentive/Deal Information

Former prosecutor and Senior Circuit Judge for
the Ninth Circuit Stephen S. Trott said,
Never has it been more true than it is now
that a criminal charged with a serious
crime understands that a fast and easy way
out of trouble with the law is not only to
have the best lawyer money can buy or the
court can appoint, but to cut a deal at
someone else’s expense and to purchase
leniency from the government by offering
testimony in return for immunity, or in
return for reduced incarceration.218

33

According to Professor Cassidy,
“The more uncertain the inducement,
the greater the witness’s incentive to tailor
his testimony to please the government.”

The Supreme Court has also raised concerns
about the use of informant testimony:
[T]he evidence of such a witness ought to
be received with suspicion, and with the
very greatest of care and caution, and
ought not be passed upon by the jury
under the same rules governing other and
apparently credible witnesses.219
Although there are inherent risks, prosecutors rely
heavily on the testimony of informants and
sometimes fail to disclose the fact that the witness
is receiving benefits in exchange for testimony.220
Moreover, “prosecutors are adept at holding out
hopes for leniency to a cooperating witness without

How Courts Are Impeding Fair Disclosure In Criminal Cases

creating any legally cognizable ‘promise’ subject to
disclosure.”221
According to Michael Hersek, California State
Public Defender, prosecutors in death penalty
cases in particular rely on informant testimony
when they have little independent evidence
against the defendant:

34

I’ve noticed that in death penalty cases
snitch testimony is used to (1) bolster
shaky identity testimony (where the
informant claims that the defendant
admitted the crime); (2) show
premeditation; and/or (3) establish at
the guilt phase the special circumstance
allegation, which if found true by the
jury, makes a first degree murder eligible
for the death penalty. (Pen. Code § 190.2
lists all the special circumstances.) As to
the special circumstances, I’ve seen the
snitch used to supply the motive and
intentionality
requirements
not
necessarily present simply from the raw
facts of the crime.222

Without discovery of the oral assurances made
to the witness “the defense is handicapped in
cross-examining the witness for bias.”
— r. Michael Cassidy

Informants typically cooperate and provide
information in exchange for some sort of benefit,
and the prosecution is required to disclose that
benefit to the defense.223
In Giglio v. United States, the U.S. Supreme
Court held that a prosecutor must inform the

jury when a government witness has been offered
an incentive in exchange for his testimony.224
“[A] promise, reward or inducement to a
government witness in a criminal case is
considered exculpatory evidence subject to
mandatory disclosure to the defense under the
Due Process Clause of the Fifth Amendment.”225
Despite the concerns and the attention that the
use of informants has received from courts and
legal experts, the “impact of Giglio in terms of
guaranteeing meaningful disclosure to defense
counsel has turned out to be largely illusory.”226
This is best understood by considering the ways
in which cooperation agreements between the
prosecution and informant witnesses are made.
According to Professor R. Michael Cassidy,
former Chief of the Criminal Bureau in the
Massachusetts Attorney General’s office, there
are three models of cooperation.227 In Model
One, the prosecutor makes no initial promises
to the witness. At the conclusion of the witness’s
testimony, however, the prosecutor and the
defense attorney bargain for the appropriate
charge and sentence based upon what the
prosecutor assesses to be the value of the
witness’s testimony to the prosecution’s case. In
this scenario, the risk is that the witness,
knowing that his fate depends upon the
prosecutor’s satisfaction with his testimony, will
conform his testimony to best support the
prosecution’s case even if that means not being
completely truthful. According to Professor
Cassidy, “The more uncertain the inducement,
the greater the witness’s incentive to tailor his
testimony to please the government, precisely
because the witness does not know exactly what
he will get for his cooperation, and hopes for the
very best.”228

In Model Two, the witness is allowed to plead
guilty to a lesser offense and is sentenced before
providing testimony.229 Of the three models, this
provides the greatest disadvantage to the
prosecutor. Not only must the prosecutor trust
that the witness will live up to his side of the
bargain, but because a deal has been made, under
Giglio the prosecutor is required to disclose to
the jury that the witness is receiving a benefit for
his testimony.
Under Model Three, the witness pleads guilty
before testifying but sentencing is delayed until
after the defendant’s trial.230 According to
Professor Cassidy, these agreements are written
in such a way that the witness’s “obligation is
very clear (i.e., to tell the truth), but the
prosecutor’s obligation is open-ended (e.g., the
prosecutor will consider whether to file a
substantial assistance motion and/or will make
the witness’s level of cooperation known to the
sentencing judge).”231 A critical fact to be
underscored in this scenario is that the
prosecution, and the prosecution alone, decides
what is “truthful” testimony. Thus, the obligation
in the agreement to “tell the truth” is really an
obligation to testify to what the prosecution
wants, hopes, or expects the “truth” to be.
Having the witness enter a guilty plea prior to
testifying, but delaying the sentencing of that
witness until after the trial concludes,
accomplishes two things. As in the first model,
the witness knows his fate depends upon the
prosecutor’s satisfaction with his testimony and,
therefore, has incentive to conform his testimony
to best support the prosecution’s case. At the
same time, because the prosecution’s side of the
bargain is open, the witness can honestly testify
that no promises have been made in exchange for
his testimony, even though there is clear incentive
for the witness to conform his testimony to align

with the prosecution’s theory of the case. This
raises serious concerns since these decisions are
in cases in which there is incentive to testify
untruthfully, but the disclosure obligations
triggered by Giglio do not apply.232
Without discovery of the oral assurances made
to the witness by the prosecution in Models One
and Three, “the defense is handicapped in crossexamining the witness for bias. The witness can
testify that he is cooperating ‘because it is the
right thing to do’ (Model One) or can testify that
‘what happens to me is up to the judge’ (Model
Three) and the partial falsity of these statements
cannot be exposed successfully on crossexamination.”233 A mere hope or expectation of
leniency by a cooperating witness or his counsel
does not trigger Giglio disclosure, absent an
affirmative representation by the prosecution.
Thus, in Models One and Three, the prosecution
is able to circumvent the risk of a Brady violation
by deliberately diluting the favorable aspect of
the benefit conferred while still ensuring the
cooperation of the witness. In this way, the
prosecution is violating the spirit of Brady v.
Maryland without technically committing a
Brady violation.

35

The prosecution, and the prosecution
alone, decides what is “truthful” testimony.
Thus, the obligation in the agreement to
“tell the truth” is really an obligation to
testify to what the prosecution wants, hopes,
or expects the “truth” to be.

How Courts Are Impeding Fair Disclosure In Criminal Cases

3.

36

Incentive/Deal Information
Conclusion

While it cannot be determined from the record
how many of the decisions in the Study Sample
are Model One or Model Three decisions, there
is ample evidence to suggest that there are a
significant number.234 Out of the 101
incentive/deal decisions identified, 42 involved
prosecution-made deals with witnesses, 11
contained witnesses admitting a self-interested
reason to testify, 12 involved prosecution
witnesses receiving unexplained benefits, and 14
included information suggesting the witness had
Non-Violent (280) v. Violent (340)
Non-Violent
a self-interested motive to testify. The
existence
of incentive/deal information could not be
Violent
substantiated in 22 decisions.
Figure 15 shows the percentage of each type of
incentive/deal information in relation to all 101
incentive/deal information decisions. See
Figure 15.

Non-Violent (31) v. Violent (70)
Non-Violent

Types of Incentive/Deal
Information

Violent

State Made Deals
Admitted Self-Interest
Unexplained Receipt of Benefits
Evidence Suggesting Self-Interest
Insufficient Detail

Unexplained Receipt
Of Benefits 12%

Admitted
Self-interest 11%

=
=
=
=
=

The incentive/deal category of decisions reveals
certain interesting connections. Nearly 70
percent of the incentive/deal decisions involve
violent crimes, which is noticeably higher than
the percent of violent crimes — 55 percent — in
all the decisions in the Study Sample. The sideby-side pie charts in Figure 16 illustrate the
overrepresentation of violent crimes in
incentive/deal decisions. See Figure 16.

Violent Crimes Overrepresented
in Incentive/Deal Decisions
All Decisions
Non-Violent 45%
Violent 55%

Incentive/Deal Decisions
Non-Violent 31%
Violent 69%

42
11
12
14
22

Figure 16
Evidence Suggesting
Self-interest 14%

State Made Deals
Insuffient Detail

Evidence Suggesting Sel

State Made Deals 42%

Figure 15

Insufficient
Detail 22%

Percentages do not
total 100 due to rounding.

Unexplained REceipt of B
Admitted Self-Interest

9)

As illustrated in the side-by-side charts in Figure
17, incentive/deal information is overrepresented
in Brady violation decisions.235 Whereas only 16
percent of all decisions involve information of
incentives or deals, 36 percent of the Brady
violation decisions involve incentive/deal
information. See Figure 17.
The 20 percentage point difference shown in
Figure 17 suggests that courts may have an easier
time appreciating the value of impeachment
information than they do exculpatory
information. These findings also reinforce the
notion that judges may find it more challenging
to view non-impeachment exculpatory
information from the defense perspective than
they do impeaching information.

Incentive/Deal Information
Overrepresented in
Brady Violation Decisions
All Decisions
Incentive/Deal
16%

s

4)
eal

Other 84%

Brady Violation Decisions
Incentive/Deal 36%

ons

Other 64%

Because of the inherent unreliability of
informant testimony, rules requiring disclosure
and other trial safeguards are necessary to assist
juries in evaluating witness credibility.236 When
prosecutors fail to disclose the fact that they are
presenting a cooperating witness or a witness
who expects to receive a favor, defendants are
denied access to these safeguards. Juries are left to
weigh the credibility of the informant testimony
without knowing the testimony should be viewed
with suspicion. The defendants are denied the
opportunity to cross-examine these informants
about the self-serving nature of their testimony.
And the defendants do not have the benefit of
the cautionary jury instruction to which they are
entitled. Thus, despite disclosure rules and trial
safeguards, there remains a high risk that
cooperating witnesses will testify falsely, juries
will believe that testimony, and wrongful
convictions will result.237
Courts have acknowledged “the reality that the
Government has ways of indicating to witness’s
counsel the likely benefits from cooperation
without making bald promises.” 238 To address
the inherent problems in dealing with informant
witnesses, there needs to be a broader
construction of Giglio by the courts. As Professor
Cassidy recommends, courts should broaden
their definition of “promises, rewards, and
inducements” under Giglio to capture any
statement by a government agent to a witness
that the agent knows or reasonably should know
may be construed by the witness to suggest
favorable consideration on a pending or
anticipated criminal charge.239

Figure 17

How Courts Are Impeding Fair Disclosure In Criminal Cases

37

VII. WItHHolDIng oF
FAVorAble InForMAtIon
n Strickler v. Greene, the Supreme Court distinguished “real” Brady information from “so-called”
Brady information.240 “Real” Brady information is favorable information that would be deemed
“material,” i.e., would change the outcome of a case. “So-called” Brady information is all other
favorable information.241 One purpose of this study was to assess the extent to which Brady violation
claims involve the withholding of favorable information.

I

38

The 210 favorable information decisions
represent a small fraction of all cases in
which prosecutors withheld information
from the defense. The true number is
unknowable.

y Violation

Violation

Withheld Favorable
Information Decisions
by Brady Claim Resolution
100%
80%

90%

60%
40%
20%

10%

0%

No Violation
(188)

Figure 18

Violation
(22)

Favorable information includes both exculpatory
and impeachment information. Exculpatory
information tends to negate the guilt of the
accused or mitigate the defendant’s sentence.242
Impeachment information tends to have a
negative impact on the credibility or reliability of
a government witness.243 The duty to disclose
impeaching information is the same as the duty
to disclose exculpatory information244 and applies
without regard to whether the
information would be admissible at
trial.245 The study identified 210
decisions in which favorable
information was withheld or
disclosed late. These decisions
turned on the question of
materiality. In 188 decisions, the
court deemed the information not
material or concluded the late
disclosure did not materially
prejudice the defendant.
Figure 18 is a graph showing how
courts resolved the 210 decisions in
which favorable information was
withheld or disclosed late. The
defendant prevailed in only 10
percent of these decisions. See
Figure 18.

In assessing the frequency with which favorable
information was being withheld, the Research
Team found that looking to the courts for
guidance was of limited use. Decisions in the
Study Sample rarely articulated whether a
particular piece of information was favorable or
not. In the Study Sample, many courts issuing
decisions skipped the discussion of information
favorability altogether and moved directly to the
question of materiality.246 Though many courts
did not explicitly refer to information as
“favorable,” they often used language that
acknowledged the exculpatory or impeachment
character of the information.247 Thus, in order to
tabulate the total number of decisions within the
Study Sample in which favorable information was
withheld, the Research Team looked to the court’s
express articulation of favorability, its
acknowledgment of the exculpatory or
impeachment value of the information, or, where
the court was silent, researchers implemented an
independent analysis of favorability based on the
facts.

A. Courts expressly
State the Information
Is Favorable
Of the 210 favorable information decisions, in
only 45 did the court explicitly use the word
“favorable” in characterizing the withheld
information, 22 of which were Brady violations.
One example, not a Brady violation decision, is
Moya v. Sullivan, in which the pre-trial
prosecutor failed to disclose to the trial
prosecutor critical information she learned at the
time of the preliminary hearing regarding the
eyewitness’s failure to identify the defendants at
the post-arrest show up.248 When this fact was
uncovered at trial, the trial court found the nondisclosure of this information constituted a Brady

violation, but concluded it could be cured through
the testimony of a detective and an instruction
addressing the failure to disclose. In
characterizing the information, the district court
said that the failure to make an identification
“constituted evidence that was favorable to the
defense.”249 Despite finding the information
favorable, the court concluded that the failure to
disclose it was not materially prejudicial.250

b. Courts Acknowledge
exculpatory or
Impeachment Value
of the Information

39

Rather than expressly characterizing withheld
information as “favorable,” courts were more likely
to acknowledge the exculpatory or impeachment
value of the information. For example, in Salgado
v. Allison, Salgado was charged with attempted
murder and assault with a deadly weapon.251 The
central issue at trial was the identity of the
perpetrator. The Brady claim was based on the
prosecution’s failure to disclose a composite
drawing and its accompanying description of the
suspect based on information furnished by the
victim immediately after the attack. What was
remarkable about the composite drawing was that
it portrayed a person very different in appearance
from Salgado. Nonetheless, despite the
differences between the victim’s description to the
police and Salgado’s appearance, the victim
positively identified Salgado at trial as his
attacker.

Courts often skipped over the favorability
prong of the Brady analysis altogether and
moved straight to the question of materiality.

How Courts Are Impeding Fair Disclosure In Criminal Cases

Although the reviewing court failed to use the
word “favorable” in reference to the withheld
information, it acknowledged the information’s
exculpatory and impeachment value by reference
to the state court of appeals opinion:

40

Despite the People’s arguments to the
contrary, we agree with [petitioner] that
the composite drawing and its
accompanying description of the suspect
were clearly exculpatory evidence that
should have been disclosed to the defense.
The composite drawing, based on
information furnished by [victim]
immediately after the attack, shows a
suspect whose appearance is very different
from [petitioner’s] appearance. More
importantly the composite drawing is
accompanied by a description of a suspect
that differs greatly from the description of
[petitioner].252

relying on the cumulative nature of the
information to deny a Brady claim is
logically flawed and is another illustration
of the manner in which judicial reliance on
the Brady rule encourages non-disclosure.
Despite agreeing with Salgado on the salient
facts and finding the information exculpatory,
the court cited the strength of the prosecution’s
evidence to reject Salgado’s Brady claim.
Another example of a court acknowledging the
exculpatory or impeachment value of information
involves the non-disclosure of information that
calls into question prosecution efforts to present a
witness as neutral and disinterested. In Gentry v.
Morgan, Gentry was convicted of aggravated firstdegree murder and sentenced to death based on

evidence that included the testimony of two
government informants, Brian Dyste and
Timothy Hicks.253
Regarding Brian Dyste, the government
stipulated that the “State had no relationship with
any of its witnesses” and Dyste “testified at trial
that he was not given anything in exchange for
his testimony[.]”254 Rejecting these claims, the
court found that Dyste had in fact acted as a paid
informant for Detective Pfitzer during the
relevant time period.255 Without expressly
characterizing the undisclosed information as
favorable, the court held that it “plainly has
impeachment value” and Gentry could have used
it to “impeach Dyste’s credibility.”256
Likewise, concerning Timothy Hicks, the court
said, “[r]espondent’s insistence that Hicks
received no ‘deal’ in exchange for his testimony is
a carefully worded argument intended to suggest
that Hicks received nothing in exchange for his
testimony, a notion that is clearly belied”257 by
the evidence. Further, the court said that “the
prosecution could dispute the materiality or
impeachment value of this information, but its
responsibility to disclose the information is
indisputable.”258 Without specifically describing
the withheld information as “favorable,” the
court clearly acknowledged the impeachment
value of the information to the defense.259
Despite the court’s acknowledgement that the
undisclosed information had impeachment
value, it ultimately rejected Gentry’s Brady
claims. The court concluded that the nondisclosure of this information was “not
prejudicial to Gentry when considered
collectively in the context of the evidence
presented at the guilt phase of the trial.”260 The
court affirmed Gentry’s conviction and death
sentence.

C. Favorability of the
Information Implicit
in the Facts
In some decisions in the Study Sample, courts
skipped over the favorability prong of the Brady
analysis altogether and moved straight to the
question of materiality. In many of these decisions,
however, the favorability of the information at issue
was implicit in the facts. In one such example,
Trevino v. Thaler, a prosecutor failed to disclose a
co-defendant’s written statement linking someone
other than Trevino to the crime.261 The court
deemed the information immaterial because the
co-defendant made a subsequent inconsistent
statement. The dissent disagreed, asserting that the
statement could have been effectively used “to
exculpate [petitioner] and challenge the credibility
of the state’s witnesses against him in the guilt and
penalty phases of his capital murder trial.”262
Stevenson v. Yates is another decision in which the
favorability of the information was implicit in the
facts.263 In that case, Stevenson was the driver of
a truck from which a passenger shot and killed a
man. He was subsequently convicted of aiding
and abetting a murder. Central to the
prosecution’s case was witness Kelly Reaves, who
testified that Stevenson drove his truck directly at
the victim. So crucial was this evidence that the
prosecutor in closing argument told the jury, “Mr.
Stevenson drove the car at them. The testimony
was it was driven directly at them. ... He punched
it and went directly at the victims in this case.”264
In contrast, after the trial, the prosecutor produced
an audiotape recording of a police interview with
Reaves in which the witness told police, “It looked
like [Stevenson] just wanted to turn off, you know.
Turn into the lane and just take off.”265 This crucial
evidence corroborated Stevenson’s testimony that

he was trying to drive away and not aiming the
truck at the victim. The trial court denied
Stevenson’s motion for a new trial, finding there
was nothing material in the tape recording, and the
reviewing court rejected his Brady claim on the
same basis.
The dissent disagreed, concluding this nondisclosure was a Brady violation. The dissent said,
“[O]ne might consider the language of the
audiotape to be ambiguous. … Such matters are
in the province of the jury. In either case, it seems
clear from the audiotape transcript that Stevenson
turned the truck, a fact which undermines the
prosecution’s theory at trial. ... Stevenson’s lawyer,
if he had received the audiotape, was entitled to
present his most vigorous defense with that
audiotape supporting his client’s views.”266

41

over 34 percent of the Study Sample
decisions involved the withholding or late
disclosure of favorable information.

And in Brooks v. Tennessee, a third decision with
strong facts implying the favorability of the
information, Brooks had been convicted of firstdegree felony murder and sentenced to life in
prison based in part on the testimony of Michael
During
the
post-conviction
Nelson.267
proceedings well after the trial, Brooks learned
that Nelson had a prior conviction for forged
instruments and perjury. The perjury charge was
based on Nelson’s false testimony against another
person years earlier, which led to the man being
arrested and charged with attempted murder.
Brooks argued that the prosecution violated his
due process rights by failing to disclose this
important impeachment information about its
key witness Michael Nelson.

How Courts Are Impeding Fair Disclosure In Criminal Cases

42

Without explicitly finding this information
favorable, the court went directly to the question
of materiality, which it characterized as “a close
one.”268 The court reasoned that “[a]s a
professional and ethical matter, the prosecution
should have discovered this important
background information about Nelson before
calling him as a witness.”269 “This is particularly
true,” the court stated, when the prior
convictions “were obtained by the very same
prosecutor’s off ice as was trying Brook’s case.”270
Finally, the court admonished the prosecution
for “failing to correct” Nelson’s “inaccurate
testimony at trial concerning the extent of his
prior criminal history[.]”271

The judiciary’s almost unilateral focus on
materiality conveys a message that nonmaterial favorable information is
unimportant and need not be disclosed.

Ultimately, the court declared the prosecution’s
conduct “a serious professional failing[,]” but
conceded that “the Brady standard for
materiality is less demanding than the ethical
obligations imposed on a prosecutor.”272 The
court found that because Brooks impeached
Nelson on other grounds, Nelson’s conviction for
providing false testimony in the past would only
have been cumulative in this case. Affirming
Brooks’ conviction, the court concluded that
“although this issue is uncomfortably close to
the constitutional line, the undisclosed evidence
was not material under Brady.”273

D. Withholding of
Favorable Information
Conclusion
The 210 favorable information decisions in the
Study Sample represent a small fraction of all
cases in which prosecutors withheld
information from the defense. The true number
is unknowable. The 210 decisions include a
wide range of withholding, from late disclosure
to complete non-disclosure. While the courts in
nearly all these decisions ultimately decided the
withholding of favorable information did not
materially prejudice the defendant, the most
important point is that valuable information
that could have helped bolster the defense
theory, led to a more effective trial strategy, or
led to other material information was not
turned over to the defense.
When the withheld information is favorable,
courts sometimes deny Brady claims based on
the assertion that the information is cumulative
and, as such, it would not have made a
difference in the outcome of the case. This
reasoning ignores the fact that cumulative
information may still be critical information in
the eyes of the jury; it is not readily apparent
what or how much information a jury will find
persuasive. One additional instance of
impeachment can make the difference in a
juror’s assessment of a witness’s credibility.
Relying on the cumulative nature of the
information to deny a Brady claim is logically
flawed and is another illustration of the
problematic nature of the materiality standard
and the manner in which judicial reliance on the
Brady rule encourages non-disclosure.

The number of Brady violations uncovered
through this study cannot convey the full extent to
which favorable information is being withheld.
The 210 favorable information decisions identified
include 22 Brady violation determinations; 23
decisions in which courts expressly articulated that
the withheld information, though not deemed
material, was favorable; 80 decisions in which the
court acknowledged the exculpatory or
impeachment value of the information without
expressly calling it favorable; and 85 decisions in
which, through independent analysis, favorability
was found to be implicit in the facts. Of the 620
decisions in the Study Sample, over 34 percent
involve the non-disclosure or late disclosure of
favorable information.
Favorable
Decisions
Withheld Favorable (210)
v. Other
(410)
Figure 19 breaks down the 210 withheld favorable
Other
Decisions
information decisions into
one
of the three
categories discussed above. Specifically, in 22
percent of withheld favorable decisions the court
expressly articulated favorability, in 38 percent of
these decisions the court acknowledged the
Othervalue
Decisions
exculpatory or impeachment
of the
Withheld Favorable (31) v. Other (28)
information, and in 40 percent of these decisions
Favorable
Decisons
the Research Team discerned
favorability
based on
the facts. See Figure 19.

In addition, the Research Team found a correlation
between death penalty decisions and favorable
information decisions.274 Within the Study
Sample, researchers identified a total of 59 death
penalty decisions, and in 31 (53 percent)
prosecutors disclosed favorable information late or
never at all. The side-by-side charts in Figure 20
demonstrate that withheld favorable information
is overrepresented in death penalty decisions as
compared to all Study Sample decisions. See
Figure 20.

Withheld Favorable Information
Overrepresented in
Death Penalty Decisions
All Decisions
Withheld
Favorable 34%
Other 66%

Death Penalty Decisions
Withheld
Favorable 53%
Other 47%

Court Articulation
of Favorability

Acknowledges
Value 38%

Express = 45
Acknowledge = 80
Implicit = 85

Figure 20

Favorability
Implicit 40%

Express
Statement 22%

Figure 19
How Courts Are Impeding Fair Disclosure In Criminal Cases

43

Despite the high stakes involved, the data also
shows that courts in death penalty decisions
overwhelmingly find withheld information not
material. As illustrated in Figure 21, of the 59
death penalty decisions, courts found the
information not material in 38 or nearly twothirds.275 By comparison, only one-third of all
decisions were resolved with a finding that the
information was not material. See Figure 21.

44

) v. Other (412)
Not Material

Resolution

8) v. Other (21)
solution

aterial

Not Material Resolutions
Overrepresented in
Death Penalty Decisions
All Decisions
Not Material 34%
Other
Resolution 66%

Death Penalty Decisions
Not Material 64%

Other
Resolution 36%

Figure 21
That death penalty decisions are more likely to
result in a finding that the undisclosed information
is not material could be related to the greater
volume of evidence typically introduced in capital
cases. Where there is a greater volume of evidence,
judges are more likely to view the undisclosed
information as cumulative in nature and, therefore,
not material to the outcome.

The court’s reliance on materiality as the central
inquiry in a Brady violation claim has evolved into
a standard by which prosecutors measure their
disclosure obligations. In doing so, prosecutors
conflate two distinct issues: (1) the obligation to
disclose favorable information pre-trial, and (2) the
court’s application of the materiality standard posttrial. Taking cues from the way in which courts
analyze Brady claims in the post-trial context, the
prosecutor’s inquiry becomes not whether a piece
of information is favorable, but instead whether the
information would have made a difference in the
outcome of the case. The judiciary’s almost
unilateral focus on materiality conveys a message
that non-material favorable information is
unimportant and need not be disclosed. As a result,
the current system of judicial review fails to
promote a culture of compliance, instead fostering
Brady, or “so-called Brady,” violations.276

VIII. SUMMAry oF StUDy FInDIngS
AnD ConClUSIonS
u Application of the materiality standard produces arbitrary results. The study
demonstrates the arbitrary nature of the materiality standard. Even when
evaluating the same information, in similar factual contexts, and applying the same
articulation of the materiality standard, different courts may ultimately resolve a
Brady claim differently.
u Materiality determinations overwhelmingly favor the prosecution. Of all the
decisions, only four percent result in a court finding that the prosecution violated
Brady. In those decisions where the prosecution failed to disclose favorable
information, it still won 86 percent of the time, with the court concluding the
information was not material. On the issue of materiality, this data demonstrates
that the odds are almost always in the government’s favor.
u Courts almost never find Brady was violated by the late disclosure of favorable
information. Of the 65 decisions that involve late disclosure of favorable
information, only one resulted in a Brady violation finding. This means that, for
the decisions in this Study Sample, the government has a nearly perfect record
when defending late disclosure of favorable information.
u Disclosed late or never disclosed at all, the withholding of favorable
information is rarely found to violate Brady. The study identifies hundreds of
decisions in which favorable information was disclosed late or never disclosed at
all. And, within this group, the defendant prevails on the question of materiality
in only one of every 10 decisions — i.e., the prosecution wins 90 percent of the
time.
u Statements are more likely to be disclosed late. Of the decisions involving the
late disclosure of favorable information, nearly half involved statements.

How Courts Are Impeding Fair Disclosure In Criminal Cases

45

u Some courts engage in burden shifting by denying Brady claims upon a finding
that the defense could have obtained the information on its own with due
diligence. In just over three percent of the decisions, courts excused the
prosecutor’s failure to disclose favorable information by imposing a due diligence
obligation on the defendant. By employing this due diligence rule, courts shift the
inquiry away from the prosecutor’s obligation to disclose favorable information,
and instead focus on the defendant’s efforts to find information.

46

u Brady claims involving information on incentives or deals are more likely to
result in a Brady violation finding. The statistical analysis reveals a strong
correlation between Brady violation decisions and incentive/deal information.
Whereas 16 percent of all the decisions involve incentive/deal information, 36
percent of the Brady violation decisions involve incentive/deal information.
u Favorable information is more likely to be disclosed late or withheld entirely in
death penalty decisions. Favorable information was never disclosed or disclosed
late by the prosecution in 53 percent of decisions involving the death penalty, but
only 34 percent of all the decisions studied.  
u Death penalty decisions are more likely to be resolved with a finding that the
information is not material and almost always upon a finding that the
information is cumulative. Nearly two-thirds of the death penalty decisions
resulted in a finding that the withheld information was not material.  By
comparison, only one-third of all the decisions studied were resolved with a not
material finding.

Ix. MeCHAnISMS For InCreASIng
FAIr DISCloSUre
hile acknowledging the role that prosecutors play in establishing policies and cultures
affecting disclosure,277 this report focuses on the role of courts in fostering a culture
of non-disclosure. This section offers three different proposals for addressing the
problems identified in this report. The first reform mechanism can be initiated by criminal defense
lawyers in their current practice and by individual judges. The other two mechanisms require
action by the judiciary or the legislature through their respective rule and lawmaking functions.
Federal and state courts could amend court rules and policies to mandate disclosure of favorable
information. State and federal lawmakers could also enact legislation requiring prosecutors to
disclose favorable information. Whether through the judicial or legislative process, such reforms
would prohibit prosecutors from using the materiality standard to limit the extent of pre-trial
disclosure obligations.

W

47

A. Court order for Disclosure of Favorable
Information in Criminal Proceedings
On Jan. 1, 2010, the American Bar Association (ABA) officially clarified that Rule 3.8(d) of the
ABA Model Rules of Professional Conduct, Special Rules of a Prosecutor, is broader than the
constitutional obligation established by Brady v. Maryland and its progeny.278 The ABA explained
that although the disclosure obligation under Rule 3.8(d) may overlap with prosecutors’ other
disclosure obligations, it is “separate from” any imposed under the “Constitution, statutes,
procedural rules, court rules, or court orders.”279 “It relies on state law, but it would bind every
state and federal prosecutor”280 and has been adopted in every state but California.281
Model Rule 3.8(d) states that “the prosecutor in a criminal case shall ... 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.” 282
Materiality, under the rule, is not a factor for
prosecutors to consider when making the
Whether through the judicial or legislative
decision of whether or not to disclose
process, these reforms would prohibit
favorable information. The rule is also
prosecutors from using the materiality standard
forward-looking, not retrospective, and
to limit pre-trial disclosure obligations.
prosecutors need not assess whether the
information would be admissible at trial.283

How Courts Are Impeding Fair Disclosure In Criminal Cases

48

As a recently enacted statute adopted in every
state with the exception of California, Model
Rule 3.8(d) supersedes the Jencks Act, which
allows witness statements to be withheld until
after the witness testifies for the prosecution.284
Thus, if a federal prosecutor withholds a
favorable statement under the Jencks Act and
fails to turn over the statement “as soon as
reasonably practicable” as required by Model
Rule 3.8(d), then the federal prosecutor would
be in violation of federal code provision 28
U.S.C. § 530B(a), which requires federal
prosecutors to abide by the state laws and rules,
and local federal court rules, governing that
particular jurisdiction.285

The court should issue an order in each case
plainly stating that “willful and deliberate
failure to comply” with rule 3.8(d)
will be viewed as contempt of court.

To most effectively enforce Model Rule 3.8(d),
defense attorneys should file a pre-trial motion
asking the court to issue an ethical rule
order requiring the prosecutor to search his
file and disclose all information that “tends to
negate the guilt of the accused or mitigates the
offense.”286 The motion should cite the relevant
rule in the local jurisdiction. To the extent it
makes strategic sense, the attorney could also
lay out the defense theory of the case and
describe the kind of information that would be
favorable and tend to negate guilt. Defense
attorneys should be specific in requesting the
court to order prosecutors to search the files of
law enforcement or other agencies where
favorable information is likely to be found and
to put on the record or reduce to writing all
favorable oral witness statements.287

To ensure enforcement, the court should
prepare and sign an order in each case plainly
stating that “willful and deliberate failure to
comply” with Rule 3.8(d) will be viewed as
contempt of court. Such an order would avoid
the problem that faced the court in the case of
the late Senator Ted Stevens. In that case, after
granting the Department of Justice’s motion to
set aside the verdict and dismiss the
indictment, District Judge Emmett G. Sullivan
was unable to hold the assistant U.S. attorneys
accountable for their deliberate failure to
disclose information. Judge Sullivan did not
have the legal authority to hold the prosecutors
in contempt because their actions did not
constitute a specific violation of the contempt
statute 18 U.S.C. § 401, which requires the
intentional violation of a clear and
unambiguous court order.
A carefully worded order requiring a prosecutor
to comply with Rule 3.8(d) — made at the
outset of the case — would bind prosecutors
and make it possible for judges to hold in
contempt prosecutors who willfully fail to
comply with the order of the court to disclose
favorable information. The presumption that
most lawyers will comply with ethical rule
orders creates a reasonable probability that
widespread use could have a deterrent effect on
willful non-disclosure. This should “generally
and specifically deter ‘bad apple’ prosecutors
because it is not subject to many of the practical
and procedural hurdles that have obstructed
punishment even for deliberate, intentional,
and malicious Brady violations.”288
Based on recent discussions with leaders in the
prosecutorial community and the judiciary,
there is a growing consensus that the
prosecutors who deliberately and willfully

withhold favorable information should be
sanctioned for the deterrent value alone, even if
the withholding is deemed harmless.289 In a
recent amicus brief filed by the National
Association of Assistant U.S. Attorneys and the
National District Attorneys Association in the
case of Pottawattamie County v. McGhee,
prosecutors underscored the effectiveness of
consequences and the deterrent value of the
threat of bar discipline, criminal prosecution,
and political embarrassment.290 Increased
requests for and imposition of an ethical rule
order is a direct mechanism for both the defense
bar and individual judges to recognize and
counter the problems identified by this study.

b. Amendment of Judicial
rules and Policies
governing Disclosure
While the American Bar Association requires
that all prosecutors disclose information “that
tends to negate the guilt of the accused or
mitigates the offense,” state and federal rules
governing
disclosure
obligations
vary
significantly. In the federal system, Federal
Criminal Procedure rule 16 obligates
prosecutors to disclose only “favorable
information material to guilt or sentencing,”291
allowing federal prosecutors to withhold other
favorable information without breaking the
rule.292 Under state systems, disclosure
obligations range “from bare compliance with
constitutional minimums to more expansive
disclosure requirements.”293 Clear and consistent
guidelines to improve defendants’ access to
favorable information are needed and can be
achieved through judicial rule and policy reform.

Judicial rule changes, at the state and federal
levels, would do a great deal to prevent
reoccurrence of the kind of problems
discussed in this report.
In 2004, seeking to address problems within the
federal system, the American College of Trial
Lawyers (ACTL) proposed amending the Federal
Rules of Criminal Procedure to “codify the rule
of law first propounded in Brady,” in particular
requiring disclosure of all favorable information
without requiring a finding of “materiality.”294 In
support of its proposal, the ACTL explained that
“[b]ecause the prosecutor alone can know and
weigh what is undisclosed, he is faced with serious
and potentially conflicting responsibilities: to
decide whether information is exculpatory, and, if
so, whether and when it should be disclosed to
the accused.”295
Faced with fierce opposition from the Justice
Department, the ACTL proposal died before
reaching the Judicial Conference’s full Advisory
Committee on Criminal Rules.296 While
NACDL has long championed discovery
reform, in recent years federal judges have also
begun calling for Rule 16 reform, including
Ninth Circuit Judge Alex Kozinski and Judges
Paul Friedman and Emmet Sullivan of the U.S.
District Court for the District of Columbia.297
The findings of this Study lend hard evidence
to what supporters for reform have been saying
— by focusing solely on the question of
materiality, courts are encouraging prosecutors
to withhold favorable information. Rule
changes, at the state and federal levels, would
do a great deal to prevent reoccurrence of the
kind of problems discussed in this report.

How Courts Are Impeding Fair Disclosure In Criminal Cases

49

C. legislation Codifying
Fair Disclosure

50

On March 15, 2012, in direct response to the
flawed prosecution of the late Senator Ted
Stevens,298 Senators Lisa Murkowski (R-AK)
and Daniel Inouye (D-HI), along with a
bipartisan group of co-sponsors, introduced S.
2197, the Fairness in Disclosure of evidence
Act of 2012, to provide a clear and meaningful
standard governing the prosecution’s disclosure
obligation.299 The Act would require
prosecutors to disclose all information “that
may reasonably appear favorable to the
defendant,”300 effectively prohibiting the
government from using the Brady materiality
requirement to narrow its disclosure obligation.
Although the bill has not yet been enacted,301 it
would address the major problems identified
and detailed in this report and it serves as a
model for bringing about sensible discovery
reform through legislation.302

The Fairness in Disclosure of evidence Act
is a model for sensible and comprehensive
discovery reform that this study
demonstrates is critically needed.
The Act would require prosecutors to disclose
all “information, data, documents, evidence, or
objects that may reasonably appear to be
favorable to the defendant in a criminal
prosecution” with respect to the determination
of guilt, any preliminary matter, or the sentence
to be imposed. 303 The disclosure obligation
would apply to that which is “within the
possession, custody, or control of the
prosecution team,” known to the prosecution
team, or “by the exercise of due diligence would

become known” to the prosecution team.304 The
Act defines the term “prosecution team” broadly
to include all individuals and agencies,
including law enforcement, that act on behalf
or under the control of the government or that
jointly investigate with the prosecuting
agency.305 In those instances where disclosure
could be detrimental to witness safety, the Act
includes a fair mechanism for seeking a
protective order, 306 and exempts all classified
information from the disclosure obligation.307
If legislation such as this were enacted,
defendants would have increased access to
favorable information, thereby reducing Brady
litigation system-wide. When prosecutors use
the Brady rule to determine pre-trial disclosure
obligations, they engage in a subjective
assessment of whether the information would
make a difference in the case without the
benefit of hindsight. Under this Act, that
assessment is removed from the prosecution’s
decision-making — the favorability of the
information alone would trigger the duty to
disclose.
The enactment of this legislation would also
address the major problems discussed in this
report, including the common practice of late
disclosure, the imposition of the due diligence
rule, and the frequency with which
incentive/deal information is not disclosed.
Sixty-five decisions, over 10 percent of all the
Study Sample decisions, involved late
disclosure. Compliance with the language of
this Act would require that information be
disclosed “without delay after arraignment” or,
if its existence is not known, “as soon as is
reasonably practicable upon the existence of [it]
becoming known.”308 Moreover, because this
timing requirement applies “before the entry of
any guilty plea[,]”309 it would better inform the

defense on the strength of the government’s
case, thereby reducing the pressure on innocent
defendants to plead guilty.310

Under the Act, the favorability
of the information alone would
trigger the duty to disclose.

This legislation would also significantly reduce,
and possibly eliminate, the imposition of a due
diligence requirement on the defense. On its
face, the Act does not base the prosecutor’s
disclosure obligation on the defendant’s
knowledge or access to the information.
Prosecutors would be required to disclose
favorable information that previously would
have been subject to the due diligence rule,
such as witness statements, statements by the
defendant, police reports, criminal records, and
incentive/deal information. The Act would also
set forth broad definitions of the covered
information and the prosecution team, and
place a due diligence requirement on the
prosecutor to seek out the information. This
legislation would mandate a comprehensive
disclosure obligation that should foreclose
attempts to impose the due diligence rule on
the defense.
The Fairness in Disclosure of Evidence Act is
a model for sensible and comprehensive
discovery reform that this study demonstrates
is critically needed. Providing clear standards
aimed at ensuring compliance would remove
much of the gamesmanship that is
commonplace in the discovery process and
result in less litigation and a fairer process.

How Courts Are Impeding Fair Disclosure In Criminal Cases

51

x. FInAl tHoUgHtS
n Brady v. Maryland, the Supreme Court recognized that criminal defendants have a due process
right to favorable, material information and that the prosecutor has an obligation to make that
information available to the defense. The purpose of the Brady decision was not to limit a
prosecutor’s disclosure obligations by the constitutional parameters articulated in the decision. Courts,
when properly analyzing Brady claims, are not asking whether the prosecution has fully met its
disclosure obligation, since the obligation extends beyond Brady, but whether the prosecution withheld
favorable, material information, thereby violating a defendant’s constitutional right to due process.
These two separate questions are often conflated, misleading courts and prosecutors to conclude that
prosecutors are not obligated to turn over favorable information unless it is deemed material.

I

52

Whereas the courts are charged with applying the Brady analysis to protect defendants’ due process
rights, the disclosure decisions made by prosecutors are not so constrained — the prosecution’s disclosure
obligation extends far beyond Brady and, as such, Brady has no role in determining that obligation. The
Supreme Court, as well as other courts, has repeatedly stated that prosecutors should err on the side of
disclosing more than the constitutional minimum. Courts have made clear that prosecutors are bound
by ethical rules beyond Brady that require the disclosure of favorable information without regard to
materiality. The American Bar Association has expressly articulated that prosecutors have an obligation
embodied in ABA Model Rule 3.8(d)311 to disclose favorable information “as soon as reasonably
practical” or, according to the ABA Criminal Justice Standards, at the “earliest feasible opportunity.”
Yet, even as some courts encourage disclosure of more than what is constitutionally required and what
ethical rules dictate, many other courts disregard these directives and continue to analyze and resolve
Brady claims in a way that reinforces the
incorrect assumption that the prosecutor’s
Courts, when properly analyzing Brady claims,
obligation is measured solely by the defendant’s
are not asking whether the prosecution has fully
due process rights. The courts’ reliance on
materiality to assess disclosure obligations, and
met its disclosure obligation, but whether the
its parsimonious application of that standard,
prosecution withheld favorable, material
have resulted in a rigid materiality rule with a
information, thereby violating a defendant’s
bar set dangerously high. As explained by
constitutional right to due process.
Ninth Circuit Judge Alex Kozinski,

By raising the materiality bar impossibly
high, [courts invite] prosecutors to avert
their gaze from exculpatory evidence,
secure in the belief that, if it turns up after
the defendant has been convicted, judges
will dismiss the Brady violation as
immaterial.312
The findings in this study support Judge Kozinski’s
conclusion that the materiality bar is set
unreasonably high. Out of 210 decisions where
favorable information was withheld, the court, in
188, or 90 percent of the decisions, held that the
information or timing of the disclosure was not
material to the outcome of the case.313
Compounding the unduly narrow construction of
“materiality” is the unworkable nature of the
materiality standard itself, described by Justice
Thurgood Marshall as “a pretrial standard that
virtually defies definition.” The materiality
standard requires prosecutors to predict what
information will be relevant to the defense’s case
before the defense’s case is known or developed. As
Justice John Paul Stevens pointed out in United
States v. Agurs, “the significance of an item of
evidence can seldom be predicted accurately until
the entire record is complete.”314 For a prosecutor
poised to try to win a case while meeting his
responsibility to an opponent in an adversarial
system, accurately assessing what information is
material poses a significant challenge.
Moreover, as this study demonstrates, several
disturbing issues arise within Brady jurisprudence
that can effectively relieve prosecutors of their
disclosure obligations and deprive defendants’
access to favorable information. Late disclosure of
favorable information is a common problem. More
than 10 percent of the Study Sample decisions
involved late disclosure of favorable information.
Despite the large number of late disclosure

decisions identified in the Study Sample, only one
resulted in a Brady violation finding.
A second troubling issue is the court’s imposition
of a due diligence requirement on the defense.
Researchers identified 19 decisions, or three
percent of all the decisions, in which courts
imposed a due diligence requirement. When a
court refuses to hold the prosecution to its
disclosure obligation because the defense could
have obtained the information, it sends a message
that fulfillment of that obligation is not important,
interferes with the truth-seeking process, and
unfairly burdens the defense.

53

The current system’s reliance on prosecutors
to make these decisions does not
facilitate fair disclosure.
Perhaps most troubling of the issues identified by
this study is the prevalence of government
incentives offered in exchange for informant
testimony — despite the strong link between use of
informant testimony and wrongful convictions. In
this study, researchers identified 101 decisions that
involved the promise or insinuation of favor in
exchange for testimony. Of the 22 Brady violation
decisions in the Study Sample, 36 percent involved
incentive/deal information, suggesting that courts
may have an easier time appreciating the value of
impeachment information than of exculpatory
information.
The 22 Brady violation decisions identified in the
study represent just a small fraction of all decisions
where favorable information was withheld. In
addition to these 22 decisions, researchers
uncovered another 188 decisions in which a Brady
violation was not found, but favorable information
was withheld or disclosed late. This study shows

How Courts Are Impeding Fair Disclosure In Criminal Cases

that the manner in which courts review Brady
claims fosters a culture of non-disclosure by: (1)
applying an overly stringent definition of
materiality; (2) minimizing the importance of
favorable information by failing to make specific
reference to its favorability; (3) failing to remind
prosecutors of their ethical obligation to disclose
non-material favorable information; and (4)
regularly excusing the prosecution’s late disclosure
or non-disclosure of favorable information.

54

In light of the adversarial nature of the justice
system, it is unreasonable to rely on prosecutors
alone to fix the problem. As Ninth Circuit Chief
Judge Kozinski acknowledged, “[t]here is an
epidemic of Brady violations abroad in the land”
which, in his view, “[o]nly judges can put a stop
to.”315 While prosecutors bear some responsibility,
it is also true that they are in a conflicted position.
The prosecutor is a minister of justice but also an
advocate with the pressure to prosecute and win
cases. He is tasked with controlling information
and playing gatekeeper to what information is
disclosed. He decides whether a single piece of
information, if withheld, would make a difference
in the outcome of a case and on that basis decides
whether or not to disclose it. The prosecutor’s
unilateral, non-transparent application of an
unworkable materiality standard may explain why
otherwise ethical prosecutors fail to turn over
favorable information.

Until the materiality standard is removed as
a barrier to fair disclosure, and there are real
consequences for withholding favorable
information, the system will remain
unaccountable to defendants.

In deciding whether favorable information is
material to the defense, the prosecutor has to be
completely neutral, which as an advocate he cannot
be. He must be in a position to understand the
defense perspective — what the defense knows and
appreciates about the case. “What may appear
exculpatory to a defense attorney — or lead to the
discovery of exculpatory evidence through
additional investigation — may appear only
tangentially relevant to a prosecutor.”316 The
current system’s reliance on prosecutors to make
these decisions does not facilitate fair disclosure.
To bring clarity to this issue, provide prosecutors
and courts with clear guidance, and ensure that
those facing criminal charges are accorded the
rights they deserve, there needs to be reform. That
reform should come through passage, at the state
and federal levels, of a statute consistent with
Model Rule 3.8(d) of the ABA ethical rules
governing disclosure. Reform also could be
attained through amendment of state and federal
judicial rules in the same manner. In the meantime,
individual judges can order prosecutors to abide by
ABA Model Rule 3.8(d) to disclose favorable
information that “tends to negate the guilt of the
accused or mitigates the offense.”
“Society 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.”317 Until the
materiality standard is removed as a barrier to fair
disclosure, and there are real consequences for
withholding favorable information, the system will
remain unaccountable to defendants.

enDnoteS
1. Brady v. Maryland, 373 U.S. 83 (1963).
2. See American Civil Liberties Union of New Jersey, Trial and Error: A Comprehensive Study of Prosecutorial Conduct in New Jersey
(September 2012), available at http://pdfserver.amlaw.com/nj/aclu_report09-12.pdf; Kathleen M. Ridolfi & Maurice Possley, Northern
California Innocence Project, Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009 (2010), available at
http://digitalcommons.law.scu.edu/ncippubs/2/; Emily M. West, Innocence Project, Court Findings of Prosecutorial Misconduct Claims in
Post-Conviction

Appeals

and

Civil

Suits

Among

the

First

255

DNA

Exoneration

Cases

(2010),

available

at

http://www.innocenceproject.org/docs/Innocence_Project_Pros_Misconduct.pdf; see generally The Center for Public Integrity, Harmful
Error: Investigating America’s Local Prosecutors, http://www.publicintegrity.org/accountability/harmful-error; Investigative Series, Misconduct
at the Justice Department, USA TODAY, http://usatoday30.usatoday.com/news/washington/judicial/2010-12-08-prosecutor_N.htm#; Ken
Armstrong & Maurice Possley, Trial & Error: How Prosecutors Sacrifice Justice to Win (Parts 1-5), CHI. TRI., Jan. 11-14, 1999, at A1.
3. Since its decision in Brady, the Supreme Court has further clarified that the prosecutor’s duty extends to not just exculpatory
information but to all favorable information. Specifically, “the duty encompasses impeachment evidence as well as exculpatory evidence” and
thus, “[i]n order to comply with Brady, therefore, ‘the individual prosecutor has a duty to learn of any favorable evidence known to the others
acting on the government’s behalf[], including the police.’” Strickler v. Greene, 527 U.S. 263, 280-81 (1999) (quoting United States v. Bagley,
473 U.S. 667, 676 (1985) and Kyles v. Whitley, 514 U.S. 419, 437 (1995). This duty is not limited to that which goes to guilt, rather it extends
to mitigating information, including that which would reduce the penalty. See Peter Goldberger, Codifying the Brady Rule, THE CHAMPION,
May 2013, at 9 (noting that the Brady decision dealt with sentencing mitigation and that the majority never actually used the word
“exculpatory”).
As such, when discussing the type of information that prosecutors must disclose under Brady, this report generally uses the term
“favorable.” However, when exploring individual decisions or data sets, this report may specifically refer to the information at issue as
“exculpatory,” “impeachment,” or “mitigating” information, depending on its precise nature. In all such instances, this report defines
“exculpatory,” “impeachment,” and “mitigating” information as types of “favorable” information and, inversely, defines “favorable” to include
information that is “exculpatory,” “impeaching,” and/or “mitigating” in nature.
4. Ellen Yaroshefsky, Foreword: New Perspectives on Brady and Other Disclosure Obligations: What Really Works?, 31 CARDOZO L. REV.
1943 (2010) (summarizing the purpose and work of the two-day symposium).
5. The Innocence Project standard for exoneration is rigorously confined to cases where there is conclusive evidence of innocence
established as a result of DNA testing. Email from Dr. Emily West, Research Director, Innocence Project, to Kathleen “Cookie” Ridolfi,
Professor of Law, Santa Clara University School of Law ( Jan. 27, 2014) (on file with recipient).
6. West, supra note 2, at 4-5.
7. Connick v. Thompson, 563 U.S. ___, 131 S. Ct. 1350, 1371 (Ginsburg, J., dissenting) (2011).
8. Id.
9. Id.
10. Id.
11. Id. at 1372.
12. Id.
13. Id. at 1372-74.
14. Id.
15.

Id.

at

1356,

1375;

The

Innocence

Pr o j e c t ,

Holding

P r o s e c u to r s

A c c o u n ta b l e ,

http://www.innocenceproject.org/Content/Holding_Prosecutors_Accountable.php.
16. Connick at 1375.
17. Id. After the trial court vacated the carjacking conviction, the District Attorney’s Office initiated grand jury proceedings to investigate
the non-disclosure of the lab report on the blood. Id. However, the District Attorney terminated these proceedings after just one day, based
upon the spurious reasoning that “the lab report would not be Brady material if the prosecutors did not know Thompson’s blood type.” Id.
18. Id.

How Courts Are Impeding Fair Disclosure In Criminal Cases

55

19. Id. at 1357 (citing State v. Thompson, 825 So.2d 552 (La. App. 4 Cir. 2002)).
20. Id. at 1376.
21. Id.
22. Id.
23. Id.
24. See generally In re Honorable Ken Anderson (A Court of Inquiry), Probable Cause Order, Cause No. 12-0420-K26 (26th Jud. Dist. Ct.
Williamson Cty., TX, April 19. 2013) [hereinafter Probable Cause Order].
25. Id. See Chuck Lindell, Lawyers Spar Over Documents in Anderson Inquiry, AM. STATESMAN, Feb. 4, 2013, available at
http://www.statesman.com/news/news/anderson-court-of-inquiry-set-to-begin/nWFRp/.
26. Ex Parte Morton, No. AP-76663 (Tex. Crim. App., Oct. 12, 2011).
27. See generally Probable Cause Order.
28. Id. at 3.
29. Id. at 3.
30. Id. at 5.
31. Id. at 6.

56

32. Brandi Grisson, Mark Norwood Indicted in Second Austin Murder, The Texas Tribune, Nov. 9, 2012, available at
http://www.texastribune.org/2012/11/09/mark-norwood-faces-grand-jury-second-austin-murder/; see also Pamela Colloff, Mark
Alan

Norwood

Found

Guilty

of

Christine

Morton’s

Murder,

Texas

Monthly,

March

27,

2013,

available

at

http://www.texasmonthly.com/story/mark-alan-norwood-found-guilty-christine-mortons-murder.
33. Brandi Grisson, Exonerated in Killing of Wife, a Father Renews Ties With Son, The Texas Tribune, July 7, 2012, available at
http://www.nytimes.com/2012/07/08/us/exonerated-in-wifes-killing-father-renews-bonds-with-son.html.
34. Chuck Lindell, Lawyers Spar Over Documents in Anderson Inquiry, AM. STATESMAN, Feb. 4, 2013, available at
http://www.statesman.com/news/news/anderson-court-of-inquiry-set-to-begin/nWFRp/.
35. Probable Cause Order at 13.
36. Report to Hon. Emmet G. Sullivan of Investigation Conducted Pursuant to the Court’s Order, dated April 7, 2009, In re Special
Proceedings, Case No. 09-0198 at 2 (D.D.C. March 15, 2012) [hereinafter Schuelke Report].
37. Memorandum Opinion, In re Special Proceedings, Case No. 09-0198 at 2-3 (D.D.C. Feb. 8, 2012) [hereinafter Sullivan Order].
38. It is noteworthy that the prosecution, which was eventually determined to be flawed and rife with misconduct, was conducted by
the Justice Department at a time when the same political party as Sen. Stevens led the Executive Branch, underscoring that the problem of
withholding favorable information is institutional in nature.
39. See generally Schuelke Report; see also Sullivan Order at 54.
40. Schuelke Report at 4, 390-91, 393, 395-96.
41. Id. at 5, 497.
42. Id. at 6-9, 28, 38, 107-08, 122-25, 500.
43. Id. at 1, 32.
44. See Statement of Attorney General Eric Holder Regarding United States v. Theodore F. Stevens, Department of Justice (April 1,
2009), available at http://www.justice.gov/opa/pr/2009/April/09-ag-288.html. See also Carrie Johnson & Del Quentin Wilber, Holder Asks
Judge to Drop Case Against Ex-Senator Stevens, WASH. POST, April 2, 2009, available at http://www.washingtonpost.com/wpdyn/content/article/2009/04/01/AR2009040100763.html (“Holder assigned a team of top department lawyers to review the case” and “he
made the decision [to dismiss the indictment] after a thorough review of the evidence.” In particular, the “discovery [of notes contradicting
testimony of a key witness] by a fresh team of lawyers and their acknowledgment that the material should have been shared with Stevens’
defense team led Holder to conclude [the case] could not be salvaged.”); Nina Totenberg, Justice Dept. Seeks to Void Stevens’ Conviction, NPR,
April 1, 2009, available at http://www.npr.org/templates/story/story.php?storyId=102589818 (Holder decided to drop the case “rather than
continue to defend the conviction in the face of persistent problems stemming from the actions of prosecutors” and the “straw that apparently
broke Holder’s back” was the discovery of more undisclosed prosecutorial notes “by the new prosecution team, which was appointed in
February.”).
45. Schuelke Report at 12.
46. Sullivan Order at 54.
47. As used in this report, the phrase “Study Sample” refers to the complete set of 1,497 federal court decisions analyzed by NACDL
and the VERITAS Initiative researchers for this study. Appendix A, containing the Methodology and Guidance Document, provides a
detailed explanation of the criteria and methodology used to identify this set of decisions.

48. Brady v. Maryland, 373 U.S. 83, 87 (1963).
49. Id. at 85.
50. Id. at 88.
51. Laurie L. Levenson, Discovery from the Trenches: The Future of Brady, 60 UCLA L. REV. 74, 77 (2013); See also Irwin H. Schwartz,
Beyond Brady: Using Model 3.8(d) in Federal Court for Discovery of Exculpatory Information, THE CHAMPION, March 2010, at 34 (“Brady is
applied retrospectively. ‘[T]here is never a real “Brady violation” unless nondisclosure was so serious’ that a post-trial review leads judges to
conclude that it undermined their confidence in the verdict.”) (alteration in the original) (quoting Strickler v. Green, 527 U.S. 263, 281-82
(1999)).
52. Favorable information includes exculpatory as well as impeachment information. See supra note 3; see also Peter Goldberger, Codifying
the Brady Rule, THE CHAMPION, May 2013, at 9 (“The Brady majority itself never used the term ‘exculpatory’ to describe the limits of its
concern. Instead, it referred to material which ‘would tend to exculpate [the accused] or reduce the penalty,’ using the term ‘favorable’ three times
to capture the essential characteristic of the covered material.”) (italics and alteration in the original).
53. Strickler v. Greene, 527 U.S. 263, 289-90 (1999).
54. Strickler, 527 U.S. at 289 (internal quotation marks omitted); see also United States v. Bagley, 473 U.S. 667, 682 (1985) (defining a
“reasonable probability” to be “a probability sufficient to undermine confidence in the outcome”). For the purposes of discussion, this report
refers to this articulation as the Bagley standard.
55. Strickler, 527 U.S. at 289-90; see also Kyles v. Whitley, 514 U.S. 419, 434-35 (1995). For the purposes of discussion, this report refers
to this articulation as the Kyles standard.
56. These alternative articulations used such phrases as “reasonable doubt,” “significant chance of reasonable doubt,” “reasonable
likelihood,” “reasonable possibility,” and a “different view of the testimony.” See Banks v. Thaler, 583 F.3d 295, 311 (5th Cir. 2009) (“[A]
materiality showing does not require demonstration by a preponderance of the evidence that disclosure of the suppressed evidence would
have resulted in acquittal[.]”) (citing Kyles, 514 U.S. at 434-46); Ortega v. Duncan, 333 F.3d 102, 109 (2d Cir. 2003) (“We also consider
‘whether there was a significant chance that this added item, developed by skilled counsel … could have induced a reasonable doubt in the
minds of enough jurors to avoid a conviction.’”) (quoting United States v. Seijo, 514 F.2d 1357, 1364 (2d Cir. 1975)); accord. Ogden v. Wolff,
522 F.2d 816, 822 (8th Cir. 1975) (citing Shulder v. Wainwright, 491 F.2d 1213, 1223 (5th Cir. 1974) (quoting United States v. Miller, 411
F.2d 825, 832 (2d Cir. 1969))); United States v. Coppa, 267 F.3d 132, 141 (2d Cir. 2001) (“In this sentence, the Court appears to be using the
word ‘material’ in its evidentiary sense, i.e., evidence that has some probative tendency to preclude a finding of guilt of lessen punishment,
cf. FED. R. EVID. 401. Thirteen years later, however, in United States v. Agurs, 427 U.S. 97, [] (1976), the Court began a process that would
result in the word ‘material’ in the Brady context having an entirely different meaning.”) (footnote omitted); Singh v. Prunty, 142 F.3d 1157,
1163 (9th Cir. 1998) (“[T]here is a reasonable probability that had the evidence been disclosed to the defense, one or more members of the
jury could have viewed [the witness’s] testimony differently.”); United States v. Gardner, 611 F.2d 770, 774 (9th Cir. 1980) (“In a case in which
a general request for exculpatory evidence is made, the test for materiality is whether the suppressed evidence ‘creates a reasonable doubt that
did not otherwise exist.’”) (quoting Agurs, 427 U.S. at 112); United States v. Aguiar, 610 F.2d 1296, 1305 (5th Cir. 1980) (“Assuming that
appellants have established [a suppression by the prosecution after a request by the defense], they have not shown [the evidence’s favorable
character for the defense] and [the materiality of the evidence] because there is no reasonable likelihood that ‘the suppressed evidence might
have affected the outcome of the trial.’”) (quoting Agurs, 427 U.S. at 104); Lutes v. Ricks, 2005 WL 2180467 at *16 (N.D.N.Y. 2005) (“[T]here
is no reasonable possibility that had the evidence been disclosed, the result would have been different.”) (internal quotation marks and
citations omitted). In addition, when articulating the materiality standard, some courts specifically stated what the standard is not; it is not
a “preponderance of the evidence” standard and the term “material” is not synonymous with the Federal Rules of Evidence definition.
57. Colin Starger, Expanding Stare Decisis: The Role of Precedent in the Unfolding Dialectic of Brady v. Maryland, 46 LOY. L.A. L. REV.
77, 113-14 (2012) (discussing the creation and evolution of the Brady doctrine) (internal quotation marks and citations omitted).
58. Scott Sundby, Fallen Superheroes and Constitutional Mirages: The Tale of Brady v. Maryland, 33 MCGEORGE L. REV. 643 (2002).
59. Brady v. Maryland, 373 U.S. 83, 87-88 (1963). “Justice Douglas’s constitutional analysis relied on a line of due process cases involving
prosecutors soliciting or willfully failing to correct false evidence and a quote inscribed on a wall in the Department of Justice. The cases,
Mooney v. Holohan, Pyle v. Kansas, and Napue v. Illinois, had set a low floor for fairness at trial, finding a due process violation only when the
state ‘knowingly use[d] false evidence . . . to obtain a conviction.’ The inscribed quote taught that ‘[t]he United States wins its point
whenever justice is done its citizens in the courts.’” Christopher Deal, Brady Materiality Before Trial: The Scope of the Duty to Disclose and the
Right to a Trial by Jury, 82 N.Y.U. L. REV. 1780, 1788-89 (2007).
60. Brady, 373 U.S. at 87.
61. In 1977, in Weatherford v. Bursey, the Supreme Court clarified that, while Brady provides an avenue for discovery, there is no
constitutional right to discovery in a criminal case. 429 U.S. 545, 559 (“It does not follow from the prohibition against concealing evidence

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57

favorable to the accused that the prosecution must reveal before trial the names of all witnesses who will testify unfavorably. There is no general
constitutional right to discovery in a criminal case, and Brady did not create one; as the Court wrote, ‘the Due Process Clause has little say
regarding the amount of discovery which the parties must be afforded.’”) (quoting Wardium v. Oregon, 412 U.S. 470, 474 (1963)).
62. See United States v. Agurs, 427 U.S. 97, 111 (1976) (reasoning that “there are situations in which evidence is obviously of such
substantial value to the defense that elemental fairness requires it to be disclosed even without a specific request[]” because the prosecutor
“is the ‘servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.’”) (quoting Berger v. United States, 295
U.S. 78, 88 (1935)); see also JOSHUA DRESSLER & ALAN C. MICHAELS, UNDERSTANDING CRIMINAL PROCEDURE, Vol. 2: Adjudication 145
(4th ed. 2006).
63. See United States v. Bagley, 473 U.S. 667 (1985) (holding “[i]mpeachment evidence, [] as well as exculpatory evidence, falls within
the Brady rule”) (citing Giglio v. United States, 405 U.S. 150, 154 (1972) (reversing conviction where government failed to disclose information
relevant to the credibility of one of its witnesses)); see also Kyles v. Whitley, 514 U.S. 419, 434 (1995).
64. Kyles, 514 U.S. at 438-39 (“[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on
the government’s behalf in the case, including the police.”).
65. Sundby, see supra note 58, at 647.

58

66. In addition to narrowing the definition of materiality, in the decisions following Brady v. Maryland, courts have created a variety of
arbitrary barriers to limit the application of the Brady rule. For example, Brady does not discuss the undisclosed information in terms of
admissibility nor does it declare admissibility a precondition for a due process violation. Yet, “[s]everal courts have construed the Brady rule
to require that, unless the evidence would be admissible, it need not be disclosed.” Bennett L. Gershman, Reflections on Brady v. Maryland,
47 S. TEX. L. REV. 685, 701 (2006) (citing Madsen v. Dormire, 137 F.3d 602, 604 (8th Cir. 1998); United States v. Derr, 990 F.2d 1330, 133536 (D.C. Cir. 1993); Zeigler v. Callahan, 659 F.2d 254, 269 (1st Cir. 1981)). See also Hoke v. Netherland, 92 F.3d 1350, 1356 n.3 (4th Cir. 1996)
(holding inadmissible information is “as a matter of law, ‘immaterial’ for Brady purposes.”); United States v. Kennedy, 890 F.2d 1056, 1059
(9th Cir. 1989) (“To be material under Brady, undisclosed information or evidence acquired through that information must be admissible.”);
United States v. Ranney, 719 F.2d 1183, 1190 (1st Cir. 1983) (“Inadmissible evidence is by definition not material, because it never would
have reached the jury and therefore could not have affected the trial outcome.”). This admissibility rule not only ignores the role that
inadmissible information can play in leading to admissible evidence, but it fails to acknowledge the fact that evidence may be inadmissible
for some purposes but admissible for others or under certain exceptions.
In addition to this admissibility rule, courts frequently refuse to apply Brady to situations in which the defense could have obtained the
undisclosed (or late disclosed) information through reasonable due diligence. Generally there are three variations of the so-called due
diligence ‘rule.’ Specifically, courts may excuse non-disclosure when (1) the information at issue is “equally available to a diligent defendant[,]”
(2) the information at issue is “known by the defendant himself and he could have or should have told his lawyers about it[,]” or (3) even if
the information at issue “is in the exclusive control of the government, so long as the relevant facts are accessible to a diligent defendant.”
Kate Weisburd, Prosecutors Hide, Defendants Seek: The Erosion of Brady Through the Defendant Due Diligence Rule, 60 UCLA L. REV. 138,
154-56 (2012). Thus, even when the government knows that its key witness has a criminal record and fails to disclose this fact to the defense,
if the defense could have discovered the criminal record through a search of public records, the trend now is for the court to rely on the due
diligence rule to avoid finding Brady violated. In sum, courts apply the due diligence rule “not just to situations where the defendant had
actual knowledge, but also to situations where the defendant could have obtained the knowledge through due diligence” and impute the
knowledge of the defendant to defense counsel. Id. at 154; see, e.g., Parker v. Allen, 565 F.3d 1258, 1277 (11th Cir. 2009) (“there is no
suppression if the defendant knew of the information or had equal access to obtaining it”); United States v. Zichittello, 208 F.3d 72, 102 (2d
Cir. 2000) (“Even if evidence is material and exculpatory, it is not suppressed by the government within the meaning of Brady if the defendant
either knew, or should have known, of the essential facts permitting him to take advantage of any exculpatory evidence.”) (internal quotation
marks and citations omitted); United States v. Rodriguez, 162 F.3d 135, 147 (1st Cir. 1998) (“government has no Brady burden when the
necessary facts for impeachment are readily available to a diligent defender”); Rector v. Johnson, 120 F.3d 551, 558-59 (5th Cir. 1997) (to state
a Brady claim a defendant must demonstrate that “discovery of the allegedly favorable evidence was not the result of a lack of due diligence”)
(citations omitted); Hoke, 92 F.3d at 1355 (“The strictures of Brady are not violated, however, if the information allegedly withheld by the
prosecution was reasonably available to the defendant.”); United States v. Dimas, 3 F.3d 1015, 1019 (7th Cir. 1993) (when “the defendants
might have obtained the evidence themselves with reasonable diligence . . ., then the evidence was not ‘suppressed’ under Brady and they would
have no claim”); United States v. Clark, 928 F.2d 733, 738 (6th Cir. 1991) (“No Brady violation exists where a defendant ‘knew or should have
known the essential facts permitting him to take advantage of any exculpatory information,’ … or where the evidence is available to defendant
from another source.”) (citations omitted).
67. Agurs, 427 U.S. at 107 (“We are not considering the scope of discovery authorized by the Federal Rules of Criminal Procedure, or
the wisdom of amending those Rules to enlarge the defendant’s discovery rights. We are dealing with the defendant’s right to a fair trial

mandated by the Due Process Clause of the Fifth Amendment to the Constitution.”).
68. Id.
69. Alafair S. Burke, Revisiting Prosecutorial Disclosure, 84 IND. L.J. 481, 483 (2009). In her article advocating for a prophylactic rule to
effectuate Brady, Professor Burke explains: “Brady’s progeny have made clear that prosecutors are not constitutionally obligated to disclose
all exculpatory evidence, or even all relevant exculpatory evidence. In fact, the definition of ‘material’ exculpatory evidence is so restrictive that
it is probably best articulated not as a duty of the prosecutor to disclose, but as a narrow exception to a prosecutor’s general right to withhold
evidence from the defense. Under Brady’s progeny, a prosecutor can constitutionally withhold all evidence, except for exculpatory evidence
that ‘creates a reasonable doubt that did not otherwise exist.’” Id.
70. The Court discussed this juxtaposition of duties in Kyles v. Whitley, stating: “We have never held that the Constitution demands
an open file policy [], and the rule in Bagley (and, hence, in Brady) requires less of the prosecution than the ABA Standards for Criminal
Justice, which call generally for prosecutorial disclosures of any information tending to exculpate or mitigate. See ABA Standards for Criminal
Justice, Prosecution Function and Defense Function 3-3.11(a) (3d ed. 1984) (‘A prosecutor should not intentionally fail to make timely
disclosure to the defense, at the earliest feasible opportunity, of the existence of all evidence or information which tends to negate the guilt
of the accused or mitigate the offense charged or which would tend to reduce the punishment of the accused’); ABA Model Rule of
Professional Conduct 3.8(d) (1984) (‘The prosecutor in a criminal case shall … 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’).” 514 U.S. 419, 437 (1995).
71. Agurs, 427 U.S. at 108 (“Because we are dealing with an inevitably imprecise standard, and because the significance of an item of
evidence can seldom be predicted accurately until the entire record is complete, the prudent prosecutor will resolve doubtful questions in favor
of disclosure.”).
72. Strickler v. Greene, 527 U.S. 263, 281 (1999).
73. Id.
74. Id.
75. Cone v. Bell, 556 U.S. 449, 470 n.15 (2009); see also Agurs, 427 U.S. at 108.
76. ABA Standing Comm. on Ethics & Prof ’l Responsibility, Formal Op. 09-454, at 1 (2009). The ABA opinion explains that
although the “obligation may overlap with a prosecutor’s other legal obligations[,]” it would be “inaccurate” to describe this rule as
merely “codifying” Brady and “incorrect” to assume it requires “no more from a prosecutor than compliance” with Brady and its progeny.
Id. The text of Rule 3.8(d) does not contain a materiality requirement and a “review of the rule’s background and history indicates that
Rule 3.8(d) does not implicitly include the materiality limitation recognized in the constitutional case law.” Id. at 2. Notably, every state
but California has adopted ABA Model Rule 3.8(d). See ABA, State Adoption of the ABA Model Rules of Professional Conduct,
http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/alpha_list_state_a
dopting_model_rules.htm.
77. ABA Formal Opinion 09-454 at 4.
78. Id. at 2 (emphasis added).
79. Id. at 4 n.16 (citing Cone, 556 U.S. at 470 n.15; Kyles v. Whitley, 514 U.S. 419, 436 (1995); Annotated Model Rules of Professional
Conduct 375 (ABA 2007); 2 Geoffrey C. Hazard, Jr., & W. William Hodes, The Law of Lawyering § 34-6 (3d 2001 & Supp. 2009); Peter
A. Joy & Kevin C. McMunigal, Do No Wrong: Ethics for Prosecutors and Defenders 145 (ABA 2009).
80. Memorandum from David W. Ogden, Deputy U.S. Att’y Gen, U.S. Dept. of Justice, Guidance for Prosecutors Regarding Criminal
Discovery ( Jan. 4, 2010), available at http://www.justice.gov/dag/discovery-guidance.html [hereinafter Ogden Memo].
81.The Department of Justice Office of Legal Education has also published a “Federal Criminal Discovery Blue Book” for use by federal
prosecutors. DOJ has declined, however, to make this guidance available to the public. In December 2012, NACDL filed a Freedom of
Information Act (FOIA) lawsuit to obtain the guidance and is currently engaged in litigation over the matter. DOJ has asserted that its
policies regarding disclosure of favorable information are protected from public disclosure by attorney-client and work-product privileges.
See Press Release, National Association of Criminal Defense Lawyers, DOJ Opposes Legislating Discovery Reform, but Declines to Disclose
Its Own Federal Criminal Discovery Blue Book; Nation’s Criminal Defense Bar Filed Federal Suit Today (Feb. 21, 2014)
(http://www.nacdl.org/NewsReleases.aspx?id=31999).
82. Following the release of the Ogden Memo, one commentator wrote: “Consistent with Bagley, [DOJ’s] guidance has required, and
continues to require, some degree of materiality.” Gil Soffer, Recent Changes in DOJ Discovery Policies: The Ogden Memo, 2011 WL 190331
*5 (2011). Further, Soffer explains that “[t]he department’s newest guidance does not address materiality head-on, but in prescribing more
rigorous methods for the collection, review, and production of exculpatory and impeaching information, the department doubtless hopes to
forestall demands for changes to Rule 16 [of the Federal Rules of Criminal Procedure to expand the government’s disclosure obligations.]”
Id. at *4-5; see Ellen Yaroshefsky, Prosecutorial Disclosure Obligations, 62 HASTINGS L.J. 1321, 1336-37 (2011) (Under the U.S. Attorney’s

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59

Manual, “the DOJ adheres to the materiality standard[]” and “federal prosecutors are likely to continue to adhere to the [manual] when in
conflict with the ABA Criminal Justice Standards until courts decide otherwise.”).
83.

U.S.

Dep’t

of

Justice,

United

States

Attorneys’

Manual

9-5.001

(updated

June

2010),

available

at

http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/5mcrm.htm [hereinafter USAM 9-5.001].
84. Id. In addition, the Ogden Memo sets forth the following considerations regarding the scope and timing of disclosures:
Providing broad and early discovery often promotes the truth-seeking mission of the Department and fosters a speedy
resolution of many cases. It also provides a margin of error in case the prosecutor’s good faith determination of the scope
of appropriate discovery is in error. Prosecutors are encouraged to provide broad and early discovery consistent with any
countervailing considerations. But when considering providing discovery beyond that required by the discovery obligations
or providing discovery sooner than required, prosecutors should always consider any appropriate countervailing concerns in the
particular case, including, but not limited to: protecting victims and witnesses from harassment or intimidation; protecting
the privacy interests of witnesses; protecting privileged information; protecting the integrity of ongoing investigations;
protecting the trial from efforts at obstruction; protecting national security interests; investigative agency concerns;

60

enhancing the likelihood of receiving reciprocal discovery by defendants; any applicable legal or evidentiary privileges;
and other strategic considerations that enhance the likelihood of achieving a just result in a particular case.
Ogden Memo at Step 3, Part A (emphasis added).
85. USAM 9-5.001, supra note 83.
86.The ambiguity raised by this judicial double-speak and the difficulty applying the materiality standard pre-trial inspired a number
of federal courts to conclude that the Brady materiality standard is unworkable in the trial context. For example, in United States v. Safavian,
a case that arose out of the Jack Abramoff scandal, Federal District Court Judge Paul L. Friedman characterized the materiality standard
as requiring the trial court to “look at the case through the end of a telescope an appellate court would use post-trial,” and concluded that
the materiality standard is unworkable in the trial context. United States v. Safavian, 233 F.R.D. 12, 16 (D.D.C. 2005). Further, Judge
Friedman stated that the “only question before (and even during) trial is whether the evidence at issue may be ‘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.” Id.
(citing United States v. Sudikoff, 36 F. Supp. 2d 1196, 1198-99 (C.D. Cal. 1999); also citing United States v. Acosta, 357 F. Supp. 2d 1228,
1233 (D.Nev. 2005), and appended magistrate judge’s decision, 357 F. Supp. 2d at 1237; United States v. Carter, 313 F. Supp. 2d 921, 92425 (E.D. Wis. 2004)). In the end, the court ordered the government to disclose all favorable information before trial. Id. 20-21.
Similarly, in United States v. Sudikoff, the court concluded that, because it was unable to determine whether the information the
government was trying to withhold would create a reasonable probability of a different outcome at trial, “[the materiality] standard is only
appropriate, and thus applicable, in the context of appellate review.” United States v. Sudikoff, 36 F. Supp. 2d 1196, 1198 (C.D. Cal. 1999).
Rather than wrestle further with the materiality standard, the Sudikoff court ordered the government to disclose all favorable information
before trial. Id. at 1206.
Finally, the idea that pre-trial discovery requires broad disclosure of favorable information is a position taken by many, but not all,
courts. See, e.g., United States v. Coppa, 267 F.3d 132 (2d Cir. 2001); United States v. Osorio, 929 F.2d 753 (1st Cir. 1991); United States v.
Mannarino, 850 F. Supp. 57 (D. Mass 1994).
87. A detailed description of the methodology is available at Appendix A — Methodology [hereinafter Methodology Appendix].
88. As used in this report, the phrase “Research Team” refers to the group of individuals who developed and executed the study discussed
in this report. This group includes VERITAS Initiative Director Kathleen “Cookie” Ridolfi, NACDL Counsel for White Collar Crime Policy
Tiffany M. Joslyn, VERITAS Initiative Pro Bono Research Attorneys Todd Fries and Jessica Seargeant, and six law student volunteers from
the Santa Clara University School of Law. The phrase “Project Supervisors” refers to Ridolfi, Joslyn, and Fries.
89. The Study Sample included only decisions made by federal courts. However, these decisions resolved Brady claims from cases that
originated in both federal and state courts. Those decisions originating in state courts generally reached the federal courts through a petition
for a writ of habeas corpus. See 28 U.S.C. § 2254.
90. As discussed in the Methodology Appendix, only those decisions that resolve a Brady claim on its merits were subjected to extensive
analysis. If a court discards the Brady claim on procedural grounds, then the decision was coded as “non-merits” and no further analysis or
coding was conducted for it.
91. The Guidance Document is part of the Methodology Appendix.
92. As the Supreme Court has explained, with “[n]inety-seven percent of federal convictions and ninety-four percent of state convictions
[] the result of guilty pleas,” the criminal system “‘is for the most part a system of pleas, not a system of trials.’” Missouri v. Frye, 566 U.S. ___,

132 S. Ct. 1399, 1407 (2012) (quoting Lafler v. Cooper, 566 U.S. ___, 132 S. Ct. 1376, 1378 (2012)). As a result, the Court recognized that
“[i]n today’s criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical
point for a defendant.” Id. See also Lucian E. Dervan & Vanessa A. Edkins, The Innocent Defendant’s Dilemma: An Innovative Empirical Study
of Plea Bargaining’s Innocence Problem, 103 CRIM. L. & CRIMINOLOGY 1, 13 (2013) (“[Today] over 96% of convictions in the federal system
result from pleas of guilt rather than decisions by juries.”).
93. For additional explanation of the difference between a decision that resolves a Brady claim on the merits and a decision that does
not, see the Methodology Appendix.
94. In 1996, AEDPA altered 28 U.S.C. § 2254 and set a new “standard of review” for habeas relief in prosecutions originating in state
courts. Under AEDPA, the federal habeas court determines whether the state court’s finding was either “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or that it was based
on an “unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” De novo is the standard of
review for habeas claims that originate in federal court. See United States v. Espaillet, 380 F.3d 713, 718 (2d Cir. 2004); Owens v. United
States, 483 F.3d 48, 57 (1st Cir. 2007); Parsley v. United States, 604 F.3d 667, 671 (1st Cir. 2010); United States v. Infante, 404 F.3d 376, 386
(5th Cir. 2005); United States v. Blanco, 392 F.3d 382, 387 (9th Cir. 2004).
95. Procedural postures in the “other” category include: an application for a stay and abeyance of habeas proceedings; a petition for a
writ of coram nobis; and an application for a certificate of appealability.
96. The Research Team only looked at the representation type for the specific proceeding resolved by the decision included in the
Study Sample — i.e., these numbers do not speak to the type of representation at the time of plea or conviction.
97. Information in the “other” category includes, for example, the identity of a particular person, information concerning the
government’s trial strategy and intended witnesses, and unspecified assertions such as “everything the prosecutor knows.”
98. As discussed above, the totals for the information form exceed 620 because 176 decisions involve multiple forms of information.
Of the 176 decisions involving multiple forms of information, 48 involve physical information, 112 involve statement or testimony
information, 143 involve documentary information, 40 involve incentive or deal information, and 50 involve information categorized as
“other.”
99. Although a number of decisions involved multiple Brady claims, researchers coded and analyzed only one Brady claim per decision—
the claim that was the central focus of the court’s decision.
100. Of the 22 Brady violation decisions identified in the Study, only one was a pro se decision, despite the fact that pro se decisions
represented 54 percent of the Study sample.
101. As detailed in the Methodology Appendix, the Research Team coded a decision as one involving favorable information only when
the court explicitly states that the information is “favorable,” the court implies the information is favorable by acknowledging its exculpatory
or impeaching value, or when the Research Team could make such a determination based on a reasonable reading of the facts. Decisions are
not coded as favorable if the information does not exist, if there is insufficient detail about the information to make such a determination,
or if the claim is not relevant or is frivolous. As a result, the quantity of decisions coded as favorable is conservative and may be understated.
102. For the purposes of this report, the phrase “undisclosed favorable information” refers to information that the Research Team
determined to be favorable, in accord with the Guidance Document contained in the Methodology Appendix, and not disclosed to the
defense. See id. (discussing the method for determining the number of decisions involving favorable information). Undisclosed favorable
information is not information that the government actually disclosed or disclosed in an untimely fashion.
103. See supra notes 54 and 55 (providing Bagley and Kyles standards).
104. The facts, quotations, and any other information used in this decision comparison come from United States v. Kohring, 637 F.3d
895 (9th Cir. 2011), and United States v. Kott, No. 3:07-CR-056, 2010 WL 148447 (D.C. Alaska 2010), vacated, United States v. Kott, 423
F. App’x 736 (9th Cir. 2011).
105. Bill Allen, the government’s key witness in both the Kott and Kohring prosecutions, was also the government’s key witness in the
prosecution of Senator Stevens discussed in the introduction of this report. See supra Section I.
106. The facts, quotations, and any other information used in this decision comparison come from Willis v. Howes, No. 2:02-CV72436, 2010 WL 7645642 (E.D. Mich. 2010), adopted by, No. 02-CV-72436, 2011 WL 4504739 (E.D. Mich. 2011), and United States v.
McDuffie, 454 F. App’x 624 (9th Cir. 2011).
107. Kohring, 637 F.3d 895.
108. Kott, 2010 WL 148447.
109. In Stevens, the U.S. District Court for the District of Columbia vacated the conviction upon the request of the government after
the Brady violations came to light. Whereas in both Kott and Kohring, following the revelations in the Stevens case, the government opposed
dismissal and the U.S. District Court for the District of Alaska rejected the defendants’ Brady claims. As a result, Kott and Kohring appealed

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the district court’s decisions to the U.S. Court of Appeals for the Ninth Circuit, which reversed the district court, vacated their convictions,
and remanded both cases for new trials.
110. Ultimately the decision to dismiss the indictment against Sen. Stevens came from U.S. Attorney General Eric Holder following
a review of the case by a new team of Department of Justice lawyers. See supra note 44.
111. Kohring, 637 F.3d at 900; Kott, 2010 WL 148447, at *2.
112. Kohring, 637 F.3d at 900.
113. This study identified all federal court decisions citing Brady v. Maryland during a set five-year time period, but only included a
portion of those decisions, selected at random, in the Study Sample. As a result, the Study Sample included only the decision of the Ninth
Circuit in Kohring and the decision of the U.S. District Court for the District of Alaska in Kott. Ultimately, Kott appealed the Alaska District
Court’s decision to the Ninth Circuit and, citing Kohring, it reversed the district court. See United States v. Kott, 423 F. App’x 736, 737 (9th
Cir. 2011). The Ninth Circuit decision in Kott, however, was not included in the study’s random sample. Despite the identical procedural
history of these two cases — a ruling for the government at the district court level and a reversal in favor of the defendant at the circuit court
level — the inclusion in the Study Sample of the conflicting circuit and district court decisions, based on nearly identical facts, serves to
demonstrate the unpredictability of the materiality standard.

62

114.The Stevens indictment was dismissed in April 2009 and the Ninth Circuit vacated Kott’s conviction in January 2010 and Kohring’s
conviction in March 2011. See supra notes 44, 104, 113.
115. See supra note 113 (explaining how the decisions from these two different courts, in cases that followed identical procedural paths,
were included in the Study Sample).
116. As detailed in the Guidance Document contained in the Methodology Appendix, the Research Team coded a decision as involving
favorable information only when the court expressly found the information to be favorable or implied the information to be favorable by
acknowledging its exculpatory or impeaching value or when the Research Team could make such a determination based on a reasonable
reading of the facts. Decisions were not coded as favorable if the information did not exist, if there was insufficient detail about the information
to make such a determination, or if the claim was not relevant or was frivolous. As a result, the quantity of decisions coded as favorable is
conservative and may be understated.
117. As discussed in Section VI, when the Research Team includes decisions involving the late disclosure of favorable information, this
number jumps to 210 decisions and, of those 210 decisions, the court found the information not material in 188 — i.e., 90 percent of these
decisions.
118. Dissenting in United States v. Bagley, Justices Marshall and Brennan explained, “the Court permits prosecutors to withhold with
impunity large amounts of undeniably favorable evidence, and it imposes on prosecutors the burden to identify and disclose evidence pursuant
to a pre-trial standard that virtually defies definition.” 473 U.S. 667, 700 (1985) (Marshall, J., dissenting).
119. See The Fairness in Disclosure of Evidence Act of 2012, S. 2197, 112th Cong. (2012) (proposed legislation effectively prohibiting
the government from using the Brady materiality requirement to narrow its disclosure obligation by requiring prosecutors to disclose all
information “that may reasonably appear favorable to the defendant” and appellate courts to employ a “harmless [] beyond a reasonable
doubt” standard of review for disclosure violation claims). For additional discussion of S. 2197 and other reforms, see infra Section IX.
120. Rejecting the use of Brady’s materiality standard for determining the government’s pre-trial disclosure obligations, U.S. District
Court Judge Harry Pregerson explained, “[the materiality] standard is only appropriate, and thus applicable, in the context of appellate
review. Whether disclosure would have influenced the outcome of a trial can only be determined after the trial is completed and the total
effect of all the inculpatory evidence can be weighed against the presumed effect of the undisclosed Brady material. This analysis obviously
cannot be applied by a trial court facing a pretrial discovery request.” United States v. Sudikoff, 36 F. Supp. 2d 1196, 1198-99 (C.D. Cal.
1999). See also discussion supra note 86.
121. United States v. Agurs, 427 U.S. 97, 108 (1976).
122. Keith A. Findley, Tunnel Vision 6, Univ. of Wisconsin Legal Studies Research Paper No. 1116, in Conviction of the Innocent: Lessons
From Psychological Research (B. Cutler, ed., 2010), available at http://ssrn.com/abstract=1604658. See generally Ellen Yaroshefsky, Why Do
Brady Violations Happen?: Cognitive Bias and Beyond, THE CHAMPION, May 2013 at 12; Raymond S. Nickerson, Confirmation Bias: A
Ubiquitous Phenomenon in Many Guises, 2 REV. OF GEN. PSYCHOL. 175 (1998); Yaacov Trope & Nira Liberman, SOCIAL HYPOTHESISTESTING: COGNITIVE AND

MOTIVATIONAL MECHANISMS, IN SOCIAL PSYCHOLOGY: HANDBOOK OF BASIC PRINCIPLES (E.T. Higgins &

A.W. Kruglanski, eds.) (1996); Richard Nisbett & Lee Ross, Human Inference: Strategies and Shortcomings of Social Judgment (1980).
123. Burke, supra note 69, at 495.
124. JOHN GRISHAM, THE INNOCENT MAN: MURDER AND INJUSTICE IN A SMALL TOWN 288 (2006).
125. Id. at 302.
126. Sundby, supra note 58, at 656.

127. See Bennett L. Gershman, Why Prosecutors Misbehave, 22 CRIM. L. BULL. 131 (1986).
128. The phrase “open file discovery” refers to a system in which the prosecution gathers all the information in the case, places it in a
file, and then makes the file available to the defense prior to trial. The system may be a statutory mandate or merely an office policy, and
thus the precise contours of case file content and defense access can differ substantially. Implicit in any open file system, however, is an
obligation to ensure that the file is complete — i.e., the prosecutor has an affirmative duty to seek out all relevant information from all those
involved in the investigation and prosecution and place it in the file.
For offices with an open file policy, “the definitions vary considerably.” Ellen Yaroshefsky, New Orleans Prosecutorial Disclosure in Practice
After Connick v. Thompson, 25 GEO. J. LEGAL ETHICS 913, 939 n.167 (2012). One office “might invite defense counsel to view all
information gathered in a case, while another office may simply give the defense substantial, but not total, access to its files. Some may have
little in the file thus the term ‘open file’ does not provide meaningful access to information.” Id. (internal citation omitted). Open file discovery
should eliminate or at least minimize gamesmanship, but “even under the most expansive open file policy, prosecutors typically make a
distinction between what is required under discovery rules, and what is required under Brady, disclosing the former but not the latter.”
Bennett L. Gershman, Prosecutorial Ethics and the Right to a Fair Trial: The Role of the Brady Rule in the Modern Criminal Justice System, 57
CASE W. RES. L. REV. 531, 543 n.67-70 (2007). See also Brady’s Bunch of Flaws, 67 WASH. & LEE L. REV. 1533, 1561-63 (discussing various
ways prosecutors and law enforcement can evade fair disclosure in an open file system).
On the other hand, statutory mandates provide clear guidance and are “short and simple.” Janet Moore, Democracy and Criminal
Discovery Reform After Connick and Garcetti, 77 BROOK. L. REV. 1329, 1372. For example, in a “full open file discovery” system, like that
adopted by North Carolina, the prosecutor must obtain “all information about the case from police and all agencies involved” and disclose
“all case-related information to the defense [with narrow exceptions].” Ellen Yaroshefsky, New Orleans Prosecutorial Disclosure in Practice
After Connick v. Thompson, 25 GEO. J. LEGAL ETHICS at 939. In addition, the statute specifically requires disclosure of “the complete files
of all law enforcement agencies, investigatory agencies, and prosecutors’ offices involved in the investigation [or prosecution,]” provides an
extensive definition of the term “file,” and, with some exceptions, requires all oral statements to be in “written or recorded form.” N.C. GEN.
STAT. § 15A-903(a)(1); see Yaroshefsky at n.169 (“The combination of provisions in the North Carolina statutes qualify North Carolina’s
reform as ‘full’ open file discovery.”).
129. Fred Klein, A View From Inside the Ropes: A Prosecutor’s Viewpoint on Disclosing Exculpatory Evidence, 38 HOFSTRA L. REV. 867,
869 (2010).
130. United States v. Bagley, 473 U.S. 667, 702 (1985).
131. The phrase “late disclosure” covers a wide range of time, from shortly before trial and during trial, to long after conviction.
132. This group does not include any decision involving information that is not favorable. See id.
133. Late disclosure decisions are only those decisions involving the late disclosure of favorable information — i.e., favorable
information decisions involving a late disclosure. If the decision involves the late disclosure of information that is not favorable, then the
decision is not included in the late disclosure decision total. See supra note 116 (defining “favorable information decision” and explaining
the methodology used to evaluate favorability).
134.The breakdown of the time of late disclosure adds up to more than 65 because a number of these decisions included late disclosure
of multiple pieces of information at different times during the proceeding.
135. In 2004, the Judicial Conference Advisory Committee on Rules of Criminal Procedure ( JCAC) published a comprehensive
study of federal and state court rules that addressed the disclosure obligations set out in Brady v. Maryland. The JCAC was able to obtain
rules and procedures for 30 of the 94 United States federal districts and quantified what it found. Regarding timetables for disclosure of
Brady material, JCAC found that the federal districts varied significantly but all required disclosure before trial. The most common time
frame permitted disclosure “within 14 days of arraignment” followed by “within five days of arraignment.” For districts without specified
time requirements, timing was characterized as “as soon as reasonably possible,” “before the trial,” or “after defense counsel has entered
an appearance.” These rules apply to all information favorable to the defendant with the exception of witness statements governed by
the Jencks Act. See Laurel L. Hooper, Jennifer E. Marsh & Brian Yeh, Fed. Judicial Ctr., Treatment of Brady v. Maryland Material in
United States District and State Courts’ Rules, Orders, and Policies: Report to the Advisory Committee on Criminal Rules of the Judicial
Conference of the United States (2004).
136. According to the JCAC study, when assessing the timing of Brady material disclosures, there is a wider disparity among states than
there is among federal districts. See id. at 23-26. Times range from “[w]ithin 10 calendar days after arraignment” to “[n]ot later than 7 days
prior to trial.” Id. Some states rely on undefined terms such as “timely disclosure” or “as soon as practicable,” which have been interpreted to
mean “within a sufficient time for its effective use” by the defendant. Id. (internal quotation marks omitted). State courts have emphasized
that disclosure must not constitute “unfair surprise.” Id.
137. Cone v. Bell, 556 U.S. 449, 470 n.15 (2009).

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138. ABA Standards for Criminal Justice, Prosecution Function and Defense Function 3-3.11(a) (3d ed. 1984).
139. See Schwartz, supra note 51, at 34 (discussion of using Model Rule 3.8(d) as a tool for expanding discovery rights).
140. See supra Section II, at 8-9.
141. Despite the harm late disclosure causes for the defense, judicial tolerance is justified in some limited circumstances. For example,
late disclosure may be justified when a prosecutor does not gain possession of information until late into the investigatory process or during
the trial itself. Absent intentional avoidance of knowledge or possession of the information, when a prosecutor without fault is unable to
provide more timely disclosure, tolerance is understandable. In addition, judicial tolerance is mandated when the delay is based on the Jencks
Act, a federal rule allowing federal prosecutors to disclose witness statements after they testify. 18 U.S.C. § 3500 (1994) (prohibiting federal
courts from ordering disclosure of witness statements until after the witness has testified).
Congress enacted the Jencks Act in response to a 1957 Supreme Court decision holding that the defendant is entitled to production
of “relevant statements or reports ... of government witnesses touching the subject matter of their testimony at trial.” Jencks v. United States,
353 U.S. 657, 672 (1957); see Ellen S. Podgor, Criminal Discovery of Jencks Witness Statements: Timing Makes a Difference, 15 GA. ST. U. L.
REV. 651, 653 (1999) (citing S. Rep. No. 85-981 (1957)). Although the Court did not state when the prosecution must disclose the statements,
the decision was met with significant criticism, much of which resulting “from court decisions that read Jencks liberally.” Id. Taking the

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position “that misapplication of the Jencks doctrine can mean an irretrievable loss to the government’s case[,]” Congress drafted the Jencks
Act with the intent to “protect[] the files of the FBI and of the government from danger of the disclosure of irrelevant and incompetent matter,
as well as any matters which are within a valid exclusionary rule.” S. Rep. 85-981 at 1862 (1957). The result is a statement, in no uncertain
terms, that courts cannot afford the defense access to, or even inspection of, a statement made by a witness “until said witness has testified
on direct examination in the trial of the case.” 18 U.S.C. § 3500(a).
When statements contain favorable information, the rigid dictate of the Jencks Act can conflict with Brady’s requirement that
information be disclosed in time for the defense to use it effectively. See infra note 154 (discussing the judicial standard for excusable late
disclosure). All courts agree that Brady material contained within Jencks material must be disclosed, but there is no consensus on whether
Brady supersedes Jencks’ timing provisions. See Federal Judicial Center, Benchbook for U.S. District Court Judges at 174-75 (6th ed. March
2013), available at http://news.uscourts.gov/updated-edition-benchbook-now-available. “[C]ircuits are split about which law trumps when
they conflict” and the “split comes down to a disagreement about how much time the defense needs to use exculpatory evidence effectively.”
Cara Spencer, Prosecutorial Disclosure Timing: Does Brady Trump the Jencks Act?, 26 GEO. J. LEGAL ETHICS 997, 998, 1004 (2013) (“some courts
find[] that the later disclosure on the Jencks Act’s terms always conforms to Brady, and others finding that Brady sometimes or even generally
requires earlier disclosure than the Jencks Act permits.”). Whereas prosecutors already exercise broad discretion over what to disclose, the
Jencks Act further insulates the exercise of that discretion “because it explicitly forbids courts from ordering disclosure of witness statements
until relatively late in the trial.” Id. at 1000. For the defendant, this further diminishes access and impairs the ability to prepare an effective
defense strategy.
142. Jackson v. Senkowski, No. 03 Civ. 2737, 2012 WL 3079192 (S.D.N.Y. July 30, 2012).
143. Id. at *6-7 (citing People v. Jackson, 264 A.D.2d 683, 683-84 (N.Y. App. Div. 1999) (citing People v. Jackson, 637 N.Y.S.2d 158
(N.Y.A.D.2d 1995) (setting forth the facts underlying Jackson’s Brady claim in detail))).
144. Id. at *6.
145. Id. at *7.
146. See also United States v. Qunbar, No. 07-3515-cr, 2009 WL 1874339 (2d Cir. 2009) (late disclosure of electronic database diminishes
the value of the information to the detriment of the defense).
147. Chinn v. Warden of Mansfield Corr. Inst., No. 3:02-cv-512, 2011 WL 5338973 (S.D. Ohio Oct. 14, 2011).
148. Id. at *71.
149. Id. at *70.
150. Id.
151. Id. at *71.
152. See United States v. O’Keefe, 128 F.3d 885, 898 (5th Cir. 1997); United States v. Smith Grading & Paving, Inc., 760 F.2d 527, 532
(4th Cir. 1985); United States v. Starusko, 729 F.2d 256, 262 (3d Cir. 1984).
153. For example, of the 65 late disclosure decisions identified within the Study Sample, only one resulted in a Brady violation finding.
154. “The Supreme Court has never expressly held that evidence that is turned over to the defense during trial has been ‘suppressed’
within the meaning of Brady.” Powell v. Quarterman, 536 F.3d 325, 335 (5th Cir. 2008). As a result, circuit courts tend to excuse late disclosure
so long as the defendant was able to use the evidence or information effectively at trial. See id. at 336 (“We have held that a defendant is not
prejudiced if the evidence is received in time for its effective use at trial.”) (citations omitted). See also United States v. Ross, 703 F.3d 856, 881
(6th Cir. 2012) (“Brady generally does not apply to delayed disclosure of exculpatory information, but only to complete failure to disclose.

... [E]ven tardy disclosures of Brady material do not violate the defendant’s constitutional rights unless he can demonstrate the delay denied
him a constitutionally fair trial.”) (internal quotation marks and citations omitted); United States v. Houston, 648 F.3d 806, 813 (9th Cir. 2011)
(“there is no Brady violation so long as the exculpatory or impeaching evidence is disclosed at a time when it still has value) (citations
omitted); United States v. Celis, 608 F.3d 818, 836 (D.C. Cir. 2010) (“the critical point is that disclosure must occur in sufficient time for
defense counsel to be able to make effective use of the disclosed evidence”) (citations omitted); United States v. Rodriguez, 496 F.3d 221, 226
(2d Cir. 2007) (“the Government must make disclosures in sufficient time that the defendant will have a reasonable opportunity to act upon
the information efficaciously,” that is, “in a manner that gives the defendant a reasonable opportunity either to use the evidence in the trial
or to use the information to obtain evidence for use in the trial”); United States v. Almendares, 397 F.3d 653, 664 (8th Cir. 2005) (“Under the
rule in our circuit Brady does not require pretrial disclosure, and due process is satisfied if the information is furnished before it is too late
for the defendant to use it at trial.”) (citations omitted); United States v. Perez-Ruiz, 353 F.3d 1, 8 (1st Cir. 2003) (“When Brady or Giglio
material surfaces belatedly, ‘the critical inquiry is not why disclosure was delayed but whether the tardiness prevented defense counsel from
employing the material to good effect.”) (citations omitted).
155. While a prosecutor must disclose information that would establish that a defendant was innocent prior to acceptance of a guilty
plea, in order to ensure that those factually innocent of crimes do not nonetheless plead guilty, the “Constitution does not require the
Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant.” United States
v. Ruiz, 536 U.S. 622, 631, 633 (2002).
156. In a study of the first 200 DNA exoneration cases, Prof. Brandon Garrett identified nine cases in which the defendant pled guilty
and was later exonerated. Brandon L. Garrett, Judging Innocence, 108 COLUM. L. REV. 55, 74 (2008). See also Brandon L. Garrett, Convicting
the Innocence: Where Criminal Prosecutions Go Wrong 169, 200-03 (2011) (defendants in 29 of the first 250 DNA exoneration cases raised
Brady claims).
157.

Judge

Lee

Sarokin,

Why

Do

Innocent

People

Plead

Guilty?,

HUFFINGTON

POST

(May

29,

2012),

http://www.huffingtonpost.com/judge-h-lee-sarokin/innocent-people-guilty-pleas_b_1553239.html.
158. See United States v. Mordi, 277 F. App’x 613, 617 (7th Cir. 2008) (“Although Mordi complains mightily about material disclosed
shortly before the original trial date, he cannot plausibly argue that those disclosures hindered his trial preparation because the district court
gave him a one-month continuance.”); United States v. Navarro, 263 F. App’x 428, 429 (5th Cir. 2008) (“Cuevas was granted a continuance
during trial to determine whether [the witness] had been convicted of murder in Mexico. … Because Cuevas had time to investigate and
put the information to effective use at trial, he was not prejudiced by the late disclosure of [the witness’s] criminal history, and there is no
Brady violation.”) (internal citations omitted).
159. United States v. Rittweger, 309 F. App’x 504, 506 (2d Cir. 2009) (“We have previously stated that the failure to ask for a continuance
when allegedly new evidence is introduced at trial is, if not a waiver of any later unfair surprise claim, at least strong proof that the party was
not in fact surprised by the ‘new’ evidence.”) (citing United States v. Cephas, 937 F.2d 816, 823 (2d Cir. 1991) (“If [the defendant was] truly
surprised by the testimony, he could have sought time to prepare his cross-examination and/or answering case.”); United States v. Caine, 441
F.2d 454, 456 (2d Cir. 1971) (“[T]he absence of surprise is highlighted by appellants’ failure to request a continuance when the court ruled
the evidence admissible.”)).
160. Within the Study Sample, there is a correlation between late disclosure decisions and statements. Statements are overrepresented
in late disclosure decisions. (Chi Square statistic .070).
161. The Jencks Act is a federal statute that allows disclosure of witness statements only after the witness testifies. See supra note 141.
162. A total of 32 late disclosure decisions involved statements. Of those decisions, nine originated in federal court and 23 originated
in state court. The discovery rules in the majority of these 23 state-originated decisions do not follow the Jencks Act and require disclosure
of witness statements pre-trial.
163. Late disclosure may be justified when providing the witness statement could put the witness in danger. Any risk of danger can be
averted, however, on a case-by-case basis through judicial in camera review of the statement and a remedy tailored to the particular facts, such
as “attorney’s eyes only” disclosure, a redacted disclosure, or some other limiting order from the judge.
164. See, e.g. United States ex rel. Young v. McCann, No. 07 C 1100, 2007 WL 2915634 (N.D. Ill. Oct. 5, 2007) (witness recantation
disclosed during trial); Gardner v. Fisher, 556 F. Supp. 2d 183, 188 (E.D.N.Y. 2008) (police report of interview with witness disclosed during
trial); Quinones v. Rubenstein, Civ. No. 5:06-cv-00072, 2009 WL 899428, at *30 (S.D. W.Va. March 26, 2009) (57-page witness statement
turned over on first day of trial); Ennis v. Kirkpatrick, No. 10 Civ. 4023(PKC), 2011 WL 2555994, at *1 (S.D.N.Y. June 27, 2011) (witness
statement exculpating defendant turned over during trial); Colbert v. Minnesota, No. 06-4407, 2007 WL 4224214 at *3 (D. Minn. Nov. 28,
2007) (expert witness statement that coat on videotape did not match defendant’s coat turned over after expert testified); Parson v. Keith,
No. CIV-07-994-M, 2008 WL 2568385 (W.D. Okla. June 24, 2008) (exculpatory statements by victim and witness disclosed during trial),
cert. denied, 310 F. App’x 271 (10th Cir. 2009); Collins v. Shewalter, No. 1:09CV2427, 2010 WL 3603147, at *6-*7 (N.D. Ohio July 7, 2010)

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(police report containing witness statement provided after she testified); Stitt v. Yates, No. 1:10-CV-01270, 2011 WL 533584, at *6 (E.D.
Cal. Feb. 11, 2011) (photographic lineup disclosed during trial); United States v. Barraza, 655 F.3d 375, 380-1 (5th Cir. 2011) (witness
inconsistent statement disclosed during trial); Black v. Warden, No. 05-cv-2187, 2009 WL 1220493, at *11-*12 (W.D. La. March 12, 2009)
(police officer’s prior false arrest affidavit disclosed after officer testified); United States v. Qunbar, 335 F. App’x 133, 135-36 (2d Cir. 2009)
(income and expense database in tax fraud case disclosed four days into trial).
165. See United States v. O’Keefe, 128 F.3d 885, 898 (5th Cir.1997); United States v. Smith Grading & Paving, Inc., 760 F.2d 527, 532
(4th Cir.1985); United States v. Starusko, 729 F.2d 256, 262 (3d Cir. 1984). See also supra note 154 (discussing the judicial standard for what
constitutes an excusable late disclosure).
166. See Bennett L. Gershman, Litigating Brady v. Maryland: Games Prosecutors Play, 57 CASE W. RES. L. REV. 531 (2007); see also
Gershman, supra note 127.
167. There are two generally accepted case precedents for the Brady defendant due diligence rule. In Kyles v. Whitley, 514 U.S. 419
(1995), and United States v. Agurs, 427 U.S. 97 (1976), the Supreme Court articulated a variation of the Brady test that described
information that was withheld as “unknown to the defense.” This simple phrase has since been interpreted so as to impose a burden that
if the defendant could have, should have, or actually did know about the undisclosed information, then the information could not have

66

been “unknown to the defense.” The prosecution therefore cannot be held accountable for not disclosing the information.
In Kyles, despite a specific discovery request by the defense, the prosecutor denied having information that was in her possession. In
concluding that the prosecutor did not withhold the information, the Supreme Court said,
showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady
violation, without more. But the prosecution, which alone can know what is undisclosed, must be assigned the
consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of
“reasonable probability” is reached.
514 U.S. at 437. This reference in Kyles is the only time the Supreme Court mentions that the information must be unknown to the defense.
There is no mention of imposing a burden on the defendant to prove there was no other way he could have obtained the information.
Although the phrase “unknown to the defense” is not part of the Brady definition, this phrase has evolved into a rule being followed
in every federal court of appeal with the exception of the Tenth and D.C. Circuits. Weisburg, supra note 66, at 143. Courts have taken this
phrase to mean that “there is no Brady violation if the defendant knew or should have known about the evidence at the time of trial.” Id. In
addition, lower courts sometimes cite other criminal procedural due diligence requirements to justify a defendant due diligence requirement
for an alleged Brady violation.
168. Bell v. Bell, 52 F.3d 223, 235 (6th Cir. 2008) (holding no violation of Brady where the sentencing records of a prosecution witness
were publicly available and the witness “mentioned a pending charge as a reason for his incarceration” to the defendant while in jail together)
(citing Matthews v. Ishee, 486 F.3d 883, 891 (6th Cir. 2007) (“Where, like here, ‘the factual basis’ for a claim is ‘reasonably available to’ the
petitioner or his counsel from another source, the government is under no duty to supply that information to the defense.”) (internal citation
omitted)); Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998) (There is no Brady violation where information is available to the defense “because
in such cases there is really nothing for the government to disclose.”).
169. United States v. Clark, 928 F.2d 733, 738 (6th Cir. 1991) (per curiam) (internal citations and quotation marks omitted).
170. Abdur’Rahman v. Colson, 649 F.3d 468 (6th Cir. 2011).
171. Id. at 476.
172. Id. at 475-76.
173. Id. at 476.
174. Id.
175. Id.
176. Id. at 479 (Cole, J., dissenting).
177. Id.
178.The due diligence rule emerged from an out-of-context phrase taken from Kyles v. Whitley and United States v. Agurs, two Supreme
Court decisions. See supra note 167 (discussing the origin of the due diligence rule). See also Weisburd, supra note 66, at 142-143.
179. Banks v. Dretke, 540 U.S. 668, 696 (2004) (“A rule [] declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a
system constitutionally bound to accord defendant due process.”).
180. Weisburd, supra note 66, at 141.
181. Id. See Tice v. Wilson, 425 F. Supp. 2d 676, 696 (W.D. Pa. 2006).

182. Weisburd, supra note 66, at 142.
183. Weisburd, supra note 66, at 178.
184. Harmless error analysis refers to a doctrine of appellate review that analyzes whether evidence of guilt is so strong that error would
not have made a difference in the outcome of the case. If the answer is yes, the conviction is allowed to stand, despite the error, which is deemed
harmless.
185. United States v. Agurs, 427 U.S. 97, 116 (1976) (Marshall, J., dissenting).
186. United States v. Bagley, 473 U.S. 1, 18 (1999).
187. “[S]uch disclosure will serve to justify trust in the prosecutor as the representative ... of the sovereignty ... whose interest ... in a
criminal prosecution is that it shall win a case, but that justice shall be done.” Kyles v. Whitley, 514 U.S. 419, 439 (1995) (ellipses in original)
(quoting Berger v. United States, 295 U.S. 78, 88 (1935).
188. See, e.g., Rhoades v. Henry, 638 F.3d 1027, 1037 (9th Cir. 2011) (police reports documenting that a witness confessed to the crime
multiple times); Blalock v. Smith, No. 08 Civ. 7528, 2012 WL 3283439 at *9 (S.D.N.Y. Aug. 13, 2012) (statements from a witness interview
concerning the events involving the decedent prior to her death); Simpson v. Warren, 662 F. Supp. 2d 835 (E.D. Mich. 2009) (information
that the police coerced two witnesses into making police statements about the events leading up to the assault); United States v. Elso, 364
Fed. App’x 595 (11th Cir. 2010) (government omitted from debriefing reports exculpatory statements of two witness, both of whom refused
the defendant’s pre-trial requests for interviews and invoked their Fifth Amendment privilege against self-incrimination at trial); Vasquez
v. Thaler, Civ. No. SA-09-CA-930-XR, 2012 WL 2979035 (W.D. Tex. 2012) (statements by multiples witnesses that the defendant was
not present at the motel the evening of the crime and a statement by one of the victims that he may have broken one of the assailant’s
fingers); Roberson v. Quarterman, No. 3-07-CV-0339-B, 2007 WL 4373267 (N.D. Tex. 2007) (statements by multiple witnesses that the
defendant did not assault his daughter); Jeffries v. Morgan, Civ. No. 05-CV-66, 2009 WL 4891836 (E.D. Ky. 2009) (existence and contents
of interview with another individual observed in the vicinity around the time of the crime); Trevino v. Thaler, No. 10-70004, 2011 WL
5554816 (5th Cir. 2011) (statements made by co-defendant who ultimately testified for the government).
189. See, e.g., Abdur’Rahman v. Colson, 649 F.3d 468 (6th Cir. 2011) (information on defendant’s self-destructive behavior while in
police custody); Franklin v. Bradshaw, No. 3:04-cv-187, 2009 WL 649581 (S.D. Ohio March 9, 2009) (contents of notes produced by the
defendant and the defendant’s family history); Rhoades v. Henry, 638 F.3d 1027, 1040 (9th Cir. 2011) (fact that defendant invoked his right
to silence en route to the police station).
190. See, e.g., Bethany v. Thaler, No. 3:09-CV-288-N, 2011 WL 4544021 (N.D. Tex. Aug. 31, 2011); Washington v. Brown, No. 09-CV544, 2009 WL 1605553 (E.D.N.Y. June 8, 2009); Ford v. Carey, No. CIV S-05-0944, 2009 WL 3806224 (E.D. Cal. Nov. 12, 2009).
191. See, e.g., United States v. Are, 590 F.3d 499 (7th Cir. 2009); Bozsik v. Bradshaw, No. 1:03CV1625, 2010 WL 770223 (N.D. Ohio
June 4, 2010); Bell v. United States, No. 11-1086, 2012 WL 2126551 (D. Md. June 11, 2012); Cal v. Warren, No. 07-11389, 2009 WL 388284
(E.D. Mich. Feb. 13, 2009); Abdur’Rahman v. Colson, 649 F.3d 468 (6th Cir. 2011).
192. Gershman, supra note 166.
193. People v. Chenault, 845 N.W.2d 731 (Mich. 2014).
194. Alexandra Natapoff, Beyond Unreliable: How Snitches Contribute to Wrongful Convictions, 37 GOLDEN GATE U. L. REV. 107 (2006);
Rob Warden, Center on Wrongful Convictions, Northwestern University School of Law, The Snitch System: How Snitch Testimony Sent
Randy Steidl and Other Innocent Americans to Death Row (2004), available at http://www.law.northwestern.edu/wrongfulconvictions. See also
Vesna Jaksic, California May Crack Down on the Use of Jailhouse Informants: Commission Advises Law Requiring Corroboration, 29 NAT ’L L.J.
6 ( Jan. 1, 2007) (Of the 117 death penalty appeals pending in the California State Public Defender’s Office,17 involved testimony by incustody informants and six by informants in constructive custody.).
195. Post-conviction analysis of DNA exoneration cases reveals that “[i]n more than 15 percent of wrongful conviction cases overturned
through DNA testing, an informant testified against the defendant at the original trial.” The Innocence Project, Understand the Causes:
Informants, http://www.innocenceproject.org/understand/Snitches-Informants.php.
196. Hunt v. Galaza, No. CIV S-03-1723, 2009 WL 5183835 (E.D. Cal. Dec. 21, 2009).
197. Id. at *17.
198. Id.
199. Payton v. Cullen, 658 F.3d 890, 895 (9th Cir. 2011) (internal quotation marks omitted).
200. In a new statement dated July 13, 2006, the witness described the full extent of his relationship with and work for law enforcement
when he testified at Payton’s trial in 1981. Id.
201. Id.
202. Id.
203. Id. at 895-96.

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204. Id.
205. Id. at 896. For more examples of decisions in which witnesses admitted self-interested motives to testify, see Green v. Harrison, No.
05CV1485, 2009 WL 1953133 (S.D. Cal. July 6, 2009) (witness testified that no promises had been made but that she hoped for leniency
in her upcoming sentencing); United States v. Harris, No. 07-10143, 2009 WL 4059388 (D. Kan. Nov. 20, 2009) (witness testified that he
hoped for, and ultimately received, leniency in exchange for his testimony); Armendariz v. Knowles, No. C 07-00264, 2011 WL 3862082 (N.D.
Cal. Aug. 31, 2011) (witness admitted he was motivated to cooperate by fear of returning to prison); Smith v. Secretary Dept. of Corrs., No.
8:06-cv-1330-T-17MAP, 2009 WL 3416775 (M.D. Fla. Oct. 19, 2009), vacated and remanded by Smith v. Secretary Dept. of Corrs., No. 1011562, 2011 WL 4810173 (11th Cir. Oct. 12, 2011) (witness admitted he hoped for state favor in exchange for cooperation and that the
state had helped in the past).
206. Cooper v. McNeil, No. 8:04-CV-1447-T-27MSS, 2008 WL 5252267 (M.D. Fla. Dec. 17, 2008).
207. Id. at *58.
208. Id.
209. Id.
210. For other decision examples of unexplained benefits given to government witnesses, see Morgan v. Hardy, 662 F.3d 790, 800-01

68

(7th Cir. 2011) (witness had two drug cases nol prossed before testifying); Higgins v. Galaza, No. CV 05-7599, 2011 WL 3420610 at *19 (C.D.
Cal. Aug. 4, 2011) (prosecutor argued in closing that “his office turned down a plea deal with” the witness, and court found no information
that a deal had been made, but following his testimony against petitioner the court sentencing the witness struck one charge and reduced
the sentence for another); Breedlove v. Berbary, No. 09-CV-6297, 2011 WL 3439261 at *3-*4 (W.D.N.Y. Aug. 5, 2011) (affirming the state
court’s conclusion that the petitioner’s unsupported allegations of favor are “‘based upon nothing more than the release of the prosecution’s
witnesses from jail following [petitioner’s] trial.’”); Light-Roth v. Sinclair, No. C11-0313-JCC, 2011 WL 7020919 (W.D. Wash. Nov. 2,
2011) (witnesses were given consideration at sentencing on open cases based on their cooperation as government witnesses); Higgins v.
Cain, Civ. No. 09-2632, 2010 WL 890998 at *4 (E.D. La. March 8, 2010) (eyewitness Brown was arrested for battery on a police officer but
never charged); Ford v. Carey, No. CIV S-05-0944, 2009 WL 3806224 (E.D. Cal. Nov. 12, 2009) (witness had felony charges dropped while
awaiting defendant’s trial). For other examples of unexplained benefits given to government witnesses, see Mannino v. Graham, No. 06 CV
6371, 2009 WL 2058791 (E.D.N.Y. July 15, 2009) (at sentencing on an open case, witness first asserted he was offered a promise for leniency
in exchange for his testimony then recanted that statement).
211. U.S. ex rel. Young v. McCann, No. 07 C 1100, 2007 WL 2915634 (N.D. Ill. Oct. 5, 2007).
212. Id. at *2.
213. Id. at *7.
214. Id.
215. Id. at *8.
216. Id. For additional examples of decisions in which there is other information suggesting a motive to testify, see Gentry v. Morgan,
No. C99-0289L, 2008 WL 4162998 (W.D. Wash. Sept. 4, 2008) (status of witness as a paid informant who had an ongoing relationship
with the detectives and prosecutors involved in the case); United States v. Faulkenberry, 614 F.3d 573 (6th Cir. 2010) (defense witness had
previously been an FBI informant); Brooks v. Tennessee, 626 F.3d 878 (6th Cir. 2010) (status of witness as a recurrent snitch and the perks
of snitching); Williams v. Nish, Civ. No. 07-1302, 2007 WL 2852443 (E.D. Pa. Sept. 26, 2007) (witness testified that he had no special
relationship as an informant, but just before sentencing the prosecutor disclosed fact that witness did act as a police informant).
217. Id. at *8.
218. Commw. of N. Mariana Islands v. Bowie, 236 F.3d 1083, 1095-96 (9th Cir. 2001).
219. Crawford v. United States, 212 U.S. 183, 204 (1909); see also On Lee v. United States, 343 U.S. 747, 757 (1952) (“The use of informers,
accessories, accomplices, false friends, or any of the other betrayals which are ‘dirty business’ may raise serious questions of credibility.”).
220. See George C. Harris, Testimony for Sale: The Law and Ethics of Snitches and Experts, 28 PEPP. L. REV. 1, 53-55 (2000).
221. R. Michael Cassidy, ‘Soft Words of Hope:’ Giglio, Accomplice Witnesses and the Problem of Implied Inducements, 98 NWULR 1129, 1166
(2004).
222. Email from Michael Hersek, California State Public Defender, to Kathleen “Cookie” Ridolfi, Professor of Law, Santa Clara
University School of Law (Oct. 22, 2013) (on file with recipient).
223. Giglio v. United States, 405 U.S. 150 (1972).
224. Cassidy, supra note 221 at 1131.
225. Id. (internal quotation marks omitted).
226. Id. at 1132.
227. Id. at 1144-47.

228. Id. at 1154.
229. Id. at 1145.
230. Id. at 1146.
231. Id. (citing Michael A. Simons, Retribution for Rats: Cooperation, Punishment, and Atonement, 56 VAND. L. REV. 1, 17-19 (2003);
United States v. Alegria, 192 F.3d 179, 184-85 (1st Cir. 1999)).
232. “Even when an agreement under Model Three is formalized in writing, such as in most federal cooperation agreements, the
government may make oral statements to the accomplice witness that augment, define, or give context to the open-ended terms used in the
written instrument (e.g., ‘We’ll just have to see how it goes, but if you really come through at trial I will recommend in my substantial
assistance motion that the judge give you the street.’”). Cassidy, supra note 221, at 1148.
233. Cassidy, supra note 221, at 1148-49.
234. It is impossible to say with certainty which decisions fall under Model One and Model Three because the appellate record does
not reflect negotiations between the government and the government’s witnesses. However, there are a substantial number of decisions in
the sample in which government witnesses received benefits after testifying for the prosecution. See, e.g., Light-Roth v. Sinclair, No. C110313-JCC, 2011 WL 7020919 (W.D. Wash. Nov. 2, 2011) (government witness’s cooperation in petitioner’s case was presented to judge at
witness’s sentencing hearing); Breedlove v. Berbary, No. 09-CV-6297, 2011 WL 3439261 (W.D.N.Y. Aug. 5, 2011) (prosecution witness
released from jail following petitioner’s trial); Higgins v. Galaza, No. CV 05-7599, 2011 WL 3420610 (C.D. Cal. April 27, 2011) (government
witness’s sentence reduced based on cooperation in petitioner’s case); Jones v. Cain, No. 10-213, 2010 WL 5375951 (E.D. La. Dec. 17, 2010)
(government witness offered favorable treatment for his testimony); Morgano v. Ricci, No. 08-1524, 2010 WL 606503 (D.N.J. Feb. 18, 2010)
(plea agreement with government witness made after petitioner’s trial was complete); Williams-El v. Bouchard, No. 05-CV-70616-DT, 2009
WL 3004008 (E.D. Mich. Sept. 15, 2009) (government witness given subsequent lenient treatment following testimony in petitioner’s case);
United States v. Harris, No. 07-10143-JTM, 2009 WL 4059388 (D. Kan. Nov. 20, 2009) (“The mere fact that this witness’s hopes later
came true does not establish, in the absence of any further evidence ... that any deal actually existed at the time of the witnesses testimony.”);
James v. United States, 603 F. Supp. 2d 472 (E.D.N.Y. 2009) (“the government is free to reward witnesses for their cooperation with favorable
treatment in pending criminal cases without disclosing to the defendant its intention to do so, provided that it does not promise anything
to the witnesses prior to their testimony.”); Cooper v. McNeil, No. 8:04-CV-1447-T-27MSS, 2008 WL 5252267 (M.D. Fla. Dec. 17, 2008)
(witness was allowed conjugal visits, given reduced sentence for three grand theft charges and allowed to leave the prison to go out to dinner
with family); Flores v. Secretary Dept. of Corrections, No. 8:06-CV-1756-T-30-TGW, 2008 WL 2977350 (M.D. Fla. Oct. 10, 2008)
(government witness promised the possibility of a transfer to a prison facility closer to his family); Bell v. Bell, 512 F.3d 223 (6th Cir. 2008)
(government witness expected some benefit in return for his testimony).
235.There was a strong statistical correlation between Brady violations and incentive/deal information. Eight percent of all incentive/deal
decisions were Brady violations.
236. Sam Roberts, Should Prosecutors Be Required to Record Their Pretrial Interviews with Accomplices and Snitches? 74 FORDHAM L. REV.
257, 260 (2005).
237. Id. (citing The Innocence Project at Cardozo Sch. of Law, Causes and Remedies of Wrongful Convictions,
http://www.innocenceproject.org/understand/factors_74_chart.php (listing the testimony of informants and snitches as a major factor in 14
of the first 74 wrongful convictions to be overturned by the results of post-conviction DNA testing)).
238. United States v. Ramirez, 608 F.2d 1261, 1266 n.9 (9th Cir. 1979).
239. Cassidy, supra note 221, at 1166.
240. Strickler v. Greene, 527 U.S. 263, 281 (1999).
241. Id.
242. ABA Model Rule of Professional Conduct 3.8(d) (1984).
243. Black’s Law Dictionary defined “impeachment evidence” as “[e]vidence to undermine a witness’s credibility.” (9th ed. 2009). See
also United States v. Bagley, 473 U.S. 667, 676 (1985) (explaining that impeachment evidence is evidence “the defense might have used to
impeach the Government’s witnesses by showing bias or interest.”).
244. See supra note 3 (Brady requires disclosure of impeachment information as well as exculpatory information).
245. Some courts hold, and the Department of Justice maintains, that admissibility of information is a precondition of a prosecutor’s
disclosure obligations. See supra note 66 (discussing the consideration of admissibility by courts resolving Brady claims and DOJ policy). Such
reasoning fails to appreciate the critical role inadmissible information can often play in leading to admissible information. Failure to disclose
this information may foreclose access to the admissible information necessary to proving that an accused is innocent. Separately, there are
instances in which inadmissible information is nevertheless required to be admitted under the compulsory process clause of the Sixth
Amendment, for example. See Peter Westen, Compulsory Process, 73 MICH. L. REV. 71, 120-21 (1974); see also Holmes v. South Carolina, 547

How Courts Are Impeding Fair Disclosure In Criminal Cases

69

U.S. 319 (2006); Green v. Georgia, 442 U.S. 95 (1979); Chambers v. Mississippi, 410 U.S. 284 (1973); Washington v. Texas, 388 U.S. 14 (1967).
Even if admissibility were a legitimate precondition to disclosure, allowing prosecutors to make a unilateral determination on the admissibility
of a particular piece of information is incongruous with the adversarial process. Admissibility is typically a question for the courts, decided
only after each side is given an opportunity to make an argument.
246. Hamilton v. Ayers, 583 F.3d 1100 (9th Cir. 2009); United States v. Hernandez, 312 F. App’x 937 (9th Cir. 2009); Moseley v. Branker,
545 F.3d 265 (4th Cir. 2008); United States v. Butler, 275 F. App’x 816 (11th Cir. 2008); Shell v. Lewis, No. C 11-2515 JSW, 2012 WL
3235798 (N.D. Cal. Aug. 6, 2012); McClure v. United States, Civ No. DKC 08-1830, 2011 WL 3511816 (D. Md. Aug. 10, 2011); Fisher v.
De Rosa, No. ED CV 08-01470-RSWL, 2010 WL 6334518 (C.D. Cal. Nov. 23, 2010); Ly v. Kansas, No. 07-3259-CM, 2009 WL 4508165
(D. Kan. Dec. 2, 2009); DeGonia v. Bowersox, No. 4:06CV1601 CDP, 2009 WL 3068092 (E.D. Mo. Sept. 23, 2009); United States v. Mungro,
No. 5:04CR18-1-V, 2008 WL 2048388 (W.D.N.C. May 13, 2008); Morgan v. Calderone, No. 1:07-cv-763-DFH-JMS, 2008 WL 2095526
(S.D. Ind. May 16, 2008).
247. See infra Section VII.A.
248. Moya v. Sullivan, No. CV 07-01598, 2010 WL 1023940 (C.D. Cal. Jan. 22, 2010).
249. Id. at *18.

70

250. Id. at *19. See also Hunt v. Galaza, No. CIV S-03-1723, 2009 WL 5183835 at *17 (E.D. Cal. Dec. 21, 2009) (“[t]here is no dispute
regarding whether the evidence of [the witness’s] proposed plea deal was favorable to petitioner or was suppressed by the government.”).
251. Salgado v. Allison, No. EDCV 10-1822-MMM, 2011 WL 4529606 (C.D. Cal. Aug. 25, 2011).
252. Id. at *6.
253. Gentry v. Morgan, No. C99-0289L, 2008 WL 4162998 (W.D. Wash. Sept. 4, 2008).
254. Id. at *2.
255. Id. at *7.
256. Id.
257. Id. at *8.
258. Id.
259. Id. For more examples in which courts acknowledge the exculpatory or impeachment value of information without expressly
calling it favorable, see Quintana v. Armstrong, 337 F. App’x 23 (2d Cir. 2009) (“undisclosed impeachment evidence”); Shue v. Sisto, 444 F.
App’x 172 (9th Cir. 2011) (witness’s prior conviction for welfare fraud was impeachment information); United States v. Butler, 275 F. App’x
816 (11th Cir. 2008) (impeachment information not material); Bell v. Bell, No. 04-5523, 2008 WL 50315 (6th Cir. Jan. 4, 2008) (nondisclosure of deal information that tended to reinforce the defense’s theory of the case); Flores v. Woodford, No. CV 08-2729-DOC, 2011
WL 3564426 (C.D. Cal. Jan. 14, 2011) (“impeachment information relevant to an investigating officer”); Menei v. Ballard, No. 2:09-cv-01516,
2011 WL 612808 (S.D. W.Va. Jan. 11, 2011) (“statements constitute impeachment evidence”); United States v. Ramos-Gonzalez, 747 F.
Supp. 2d 280 (D. P.R. 2010) (key government witness’s letter was “collateral impeachment evidence”); United States v. Jones, 609 F. Supp. 2d
113 (D. Mass. 2009) (witness statement was “plainly material exculpatory evidence”); United States v. Ledingham, No. 6:07-CR-00007, 2008
WL 4621838 (W.D. Va. Oct. 17, 2008) (The ATF claim form is exculpatory material).
260. Id. at *12.
261. Trevino v. Thaler, 449 F. App’x 415 (5th Cir. 2011), vacated and remanded by Trevino v. Thaler, 133 S. Ct. 1911 (May 28, 2013).
262. Id. at 435.
263. Stevenson v. Yates, 407 F. App’x 178 (9th Cir. 2010).
264. Id. at 181.
265. Id. at 180.
266. Id. at 180-81.
267. Brooks v. Tennessee, 626 F.3d 878 (6th Cir. 2010).
268. Id. at 892.
269. Id.
270. Id. (emphasis in original).
271. Id.
272. Id.
273. Id. at 894.
274. Here, correlation exists between death penalty decisions and favorable information. Favorable information is overrepresented in
death penalty decisions. (Chi Square statistic .002). 
275. For example, in Wessinger v. Cain, an investigative report showing petitioner’s fingerprints were not on the gun or at the scene of

the crime was just one of 13 separate pieces of information withheld from the defense. Wessinger v. Cain, Civ. No. 04-637, 2012 WL 602160
(M.D. La. Feb. 23, 2012). In that decision, the court expressed clear “concern that so much evidence apparently did not make it to the hands
of the defense team for trial.” Id. at *15. The court said, “[i]t should have.” Id. The court also clearly explained that disclosure of the report
“would no doubt have helped the defense’s case.” Id. Despite the court’s criticism of the prosecution, the court did not find any single piece
of withheld information, or the cumulative effect of 13 pieces of withheld information, to be material.
276. A prosecutor could conceivably parse through the discovery in a case and disclose only the information that in his judgment is
material exculpatory information, withholding all other favorable information to the detriment of the defendant’s case. The problem is
exacerbated by contextual bias and the limitations of judging what is material in a case before the case unfolds.
277. See supra note 4 at 1959 (the two-day symposium examined “best practices to optimize effective training, supervision, and control
mechanisms for managing information within prosecutors’ offices”). See also Ellen Yaroshefsky & Bruce A. Green, Prosecutors’ Ethics in
Context: Influences on Prosecutorial Disclosures, in LAWYERS IN PRACTICE: ETHICAL DECISION MAKING IN PRACTICE 269 (Leslie C. Levin
& Lynn Mather eds., 2012).
278. Brief of the American Bar Association as Amicus Curiae Supporting Petitioner at 1, Smith v. Cain, 565 U.S. ___, 132 S. Ct. 627
(2012) (No. 10-8145); See also Cone v. Bell, 556 U.S. 449, 477 n.15 (2009).
279. See ABA Formal Opinion 09-454 at 1.
280. Nancy Gertner & Barry Scheck, Combatting Brady Violations With an ‘Ethical Rule’ Order for the Disclosure of Favorable Evidence,
THE CHAMPION, May 2013, at 40 (outlining the elements of an effective ethical rule order and the best practices for obtaining judicial
action and compliance).
281. Supra note 76.
282. ABA MODEL RULES OF PROF ’L CONDUCT R. 3.8(d) (2009). See supra note 76.
283. Had the defense in Brooks v. Tennessee requested an order to comply with Rule 3.8(d), the prosecutor in the case would have been
accountable for the professional failing noted by the court. See supra note 267 and p.41-42.
284. ABA Formal Opinion 09-454 at 1 (2009). A state’s adoption of ABA Model Rule 3.8(d) does not mean that the state has also
adopted ABA Formal Opinion 09-454. For example, the Ohio Supreme Court expressly rejected the ABA’s position in Disciplinary Counsel
v. Kellogg-Martin, 923 N.E.2d 125 (Ohio 2010). The ABA Opinion has also received pointed criticism. See, e.g., Kirsten M. Schimpff, Rule
3.8, The Jencks Act, and How the ABA Created a Conflict Between Ethics and the Law on Prosecutorial Disclosure, 61 AM. U. L. REV. 1729, 1767
(August 2012) (citing Margaret Colgate Love, The Revised ABA Model Rules of Professional Conduct: Summary of the Work of Ethics
2000, 15 GEO. J. LEGAL ETHICS 441, 469 (2002)).
285. 28 U.S.C. § 530B(a) states that “[a]n attorney for the Government shall be subject to State laws and rules, and local Federal court
rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner
as other attorneys in that State.” See Schwartz, supra note 51, at 34.
286. See Schwartz, supra note 51, at 34.
287. Id.
288. Gertner & Scheck, supra note 280, at 44.
289. Id.
290. Brief of the National Association of Assistant United States Attorneys and National District Attorneys Association as Amici
Curiae Supporting Petitioners at 13-15, Pottawattamie County v. McGhee, 547 F.3d. 922, 925 (8th Cir. 2008), cert. granted, 556 U.S. 1181
(2009) (mem.), cert. dismissed, 558 U.S. 1103 (2010) (mem.).
291. Id.
292. See supra notes 80 and 82 (as set forth in the Ogden Memo and the U.S. Attorney’s Manual, it is not the policy of the U.S.
Department of Justice to disclose all favorable information).
293. Id.
294. American College of Trial Lawyers, Proposed Codification of Disclosure of Favorable Information Under Federal Rules of Criminal
Procedure 11 and 16, 41 AM. CRIM. L. REV. 93, 95 (2004).
295. Id. at 101.
296. Yaroshefsky, supra note 277.
297. See The BLT: The Blog of LegalTimes, DOJ Pushes ‘Comprehensive Approach’ to Discovery Reform, Nov. 6, 2009 (“Judge Paul
Friedman of the U.S. District Court for the District of Columbia says he’s ‘radicalized’ when it comes to prosecution disclosure obligations.
He is a proponent of a federal rule that clearly spells out the government’s obligation to turn over favorable evidence to defense lawyers.”);
The BLT: The Blog of LegalTimes, Judicial Conference to Review Prosecution Disclosure Obligations, July 8, 2009 (“Judge Emmet Sullivan of
the U.S. District Court for the District of Columbia wrote the committee in April urging it to re-examine amending Rule 16 to require

How Courts Are Impeding Fair Disclosure In Criminal Cases

71

disclosure of any exculpatory information.”); but see The Third Branch News, Judiciary Split on Need for Rule 16 Changes, May 2011, available
at: http://www.uscourts.gov/news/TheThirdBranch/11-05-01/Judiciary_Split_on_Need_for_Rule_16_Changes.aspx.
298. See supra Section I (discussing the prosecution of Senator Ted Stevens).
299. The Fairness in Disclosure of Evidence Act of 2012, S. 2197, 112th Cong. (2012) (adding a new section, “3014. Duty to disclose
favorable information.” to Title 18 of the United States Code). The Fairness in Disclosure of Evidence Act of 2012 is bipartisan in nature
with former Sen. Daniel Inouye (D-HI) joining Sen. Lisa Murkowski as a lead sponsor and Sen. Mark Begich (D-AK) and former Sens.
Kay Bailey Hutchinson (R-TX) and Daniel Akaka (D-HI) as original co-sponsors. Id.
300. Id. at proposed § 3014(a)(1). See Peter Goldberger, Codifying the Brady Rule, THE CHAMPION, May 2013, at 8-11 (providing a
detailed section-by-section examination of the Act).
301. Congress failed to enact S. 2197 prior to the close of the 112th legislative session.
302.The legislation is supported by NACDL, the ABA, the American Civil Liberties Union, the Constitution Project and the Institute
for Legal Reform at the U.S. Chamber of Commerce. See News Release, NACDL, NACDL Applauds Sensible, Bipartisan Discovery
Reform

Legislation

Introduced

Today

in

the

United

States

Senate

(March

15,

2012),

available

at

http://www.nacdl.org/NewsReleases.aspx?id=23792&libID=23761 (“passage would represent a giant step forward in improving the fairness

72

and accuracy of our criminal justice system”).
303. S. 2197 at proposed § 3014(a).
304. Id. at proposed § 3014(b).
305. Id. at proposed § 3014(a)(2) (the prosecution team includes the “(A) the Executive agency ... that brings the criminal prosecution
on behalf of the United States” and “(B) any entity or individual, including a law enforcement agency or official, that—(i) acts on behalf of
the United States with respect to the criminal prosecution; (ii) acts under the control of the United States with respect to the criminal
prosecution; or (iii) participates, jointly with the Executive agency ... in any investigation with respect to the criminal prosecution.”).
306. See id. at proposed § 3014(e) (the court may issue a protective order when the information is favorable solely because it provides
a basis for impeaching the testimony of a potential witness and only if the government “establishes a reasonable basis to believe” the identity
of the potential witness is not known to the defendant and disclosure “would present a threat to the safety of the potential witness or of any
other person.”).
307. See id. at proposed § 3014(d)(2) (classified information remains under the purview of the Classified Information Procedures Act
(CIPA), 18 U.S.C. App. §§ 1-16).
308. Id. at proposed § 3014(c).
309.The continuing duty to disclose also applies “without regard to whether the defendant has entered or agreed to enter a guilty plea.”
Id.
310. See Dervan & Edkins, supra note 92 (empirical study examining the use of plea bargaining and its innocence problem).
311. ABA Model Rule 3.8(d) has been adopted by all states except California, where the California State Bar has prepared a
proposal for adoption that will be submitted to the California Supreme Court for consideration. See supra note 76;
State

Bar

of

California,

Proposed

Rules

of

Professional

Conduct,

Rule

3.8(d),

available

at

http://ethics.calbar.ca.gov/Committees/RulesCommission/ProposedRulesofProfessionalConduct.aspx; see also Petition to Approve
New California Rules of Professional Conduct and Repeal Existing Rules of Professional Conduct, State Bar of California (Cal. July
20, 2011), available at http://ethics.calbar.ca.gov/LinkClick.aspx?fileticket=sOY6VmyQx7s%3d&tabid=2669; Ethics Rules Get a Rewrite,
CAL. B.J., April 2010, available at http://www.calbarjournal.com/April2010/TopHeadlines/TH3.aspx.
312. As Judge Alex Kozinski points out in his recent dissent in United States v. Olsen, a restrictive materiality standard poses serious
risks that prosecutors inclined to practice close to the ethical line will cross it. United States v. Olsen, 737 F.3d 625, 633 (9th Cir. 2013).
313. The ultimate ruling in these 210 decisions was based on the materiality of the most significant piece of allegedly withheld
information, even though many of these decisions involve multiple pieces of information.
314. United States v. Agurs, 427 U.S. 97, 108 (1976).
315. Olsen, 737 F.3d at 626.
316. Mike Klinkosum, Pursuing Discovery in Criminal Cases: Forcing Open the Prosecutor’s Files, THE CHAMPION, May 2013, at 26, 28.
317. Brady v. Maryland, 373 U.S. 83, 87 (1963).

APPenDIx A — MetHoDology
n developing this study, NACDL and VERITAS Initiative researchers sought to obtain quantitative
answers to three questions:

I

1. Are courts consistent in the use and application of the materiality standard when deciding
Brady claims?
2. What other issues or factors, if any, influence or underlie courts’ resolutions of Brady claims?
3. To what extent is favorable information being withheld from the defense?

The researchers established a variety of parameters to narrow the research into a manageable data set
without compromising the possibility of statistically meaningful relationships.
Specifically, in order to ensure the study included a sufficient number of judicial decisions and that the
decisions were randomly selected, the researchers limited the universe of decisions to those made in federal
courts over a defined five-year time period from August 2007 to August 2012.318 From that group, using
Westlaw, the Research Team identified over 5,000 decisions in which “Brady v. Maryland” appeared in
the text of the decision, and pulled a stratified random sample319 of those decisions to arrive at the Study
Sample of 1,497 decisions for a closer reading, analysis, and coding.
In order to ensure ultimate consistency, the Research Team developed an extensive Guidance Document
providing step-by-step instructions for the analysis and coding of each of the 1,497 decisions in the Study
Sample. The Guidance Document aligns with a coding spreadsheet used by the Research Team to code
every entry in the Study Sample and describes each piece of information to be coded in the spreadsheet.
It includes detailed instructions for determining the proper code for each piece of information in each
decision. The Guidance Document begins on page four.
As an initial matter, for each decision, researchers determined whether the court addressed a Brady claim
on its merits. Specifically, if a court identified and/or acknowledged a Brady claim, applied any portion of
the Brady analysis to the claim, and reached a conclusion as to the merit of the claim, then the decision
was coded as “merits” and it was subjected to extensive analysis. If a court discarded the Brady claim on
procedural grounds, then the decision was coded as a “non-merits” decision and no further analysis or
coding was conducted for it.320 In addition, researchers coded each “merits” decision in a vacuum, without
regard to any later treatment of the decision by a reviewing court.

How Courts Are Impeding Fair Disclosure In Criminal Cases

1

As outlined in the Guidance Document, the
researchers coded every “merits” decision by using
the following objective characteristics: decision
year; trial year; procedural posture; origin
jurisdiction; current jurisdiction; type of
representation; type of crime; imposition of death
sentence; and decision result.

2

With regard to “type of representation,”
researchers made best efforts to distinguish
between public defenders, court-appointed
counsel, and private counsel. Regardless, in every
decision the researchers determined whether the
petitioner/appellant appeared pro se or had some
form of representation.
For “crime type,” the Research Team selected from
the following options: violent (non-sex); sex
(violent and non-violent); property; weapon; drug;
immigration; white collar and regulatory; and
other. The Guidance Document established
definitions for each crime type.321 In addition,
researchers labeled decisions as “death sentence” if
the petitioner/appellant was in fact facing the
death penalty at the stage of proceedings under
analysis — i.e., that the court assessing the Brady
claim was doing so under the actual risk of sending
the petitioner/appellant to be executed. Decisions
in which a petitioner/appellant had been facing the
death penalty at one point, but the possibility of
receiving the death penalty was removed, were not
coded as “death sentence” decisions.
In addition to these objective categories,
researchers coded every decision for a variety of
more subjective categories that required the
researcher to apply certain principles to the court’s
opinion and ultimately make a determination as
articulated in the Guidance Document. Every
“merits” decision received only one code in the
following categories:

u Value of Information:
impeachment; both.

exculpatory;

u Brady Claim Result: (1) disclosure/no
withholding; (2) not favorable; (3) not
material; (4) Brady violation.
Every “merits” decision received one or more
codes in the following categories:
u Type
of
Information:
physical;
statements/testimony;
documentary;
incentive/deal; other.
u Favorability: favorable; not favorable; late
disclosure; insufficient detail; does not exist;
not relevant or frivolous.
u Disclosure/No Withholding: multiple codes
available to describe court’s rationale for
concluding
the
allegedly
withheld
information was not withheld or was
disclosed.
u Materiality Test: multiple codes available to
describe the materiality test articulated by the
court when assessing materiality of allegedly
withheld information.
u Materiality Factors: various factors the court
may have considered when assessing
materiality of allegedly withheld information.
As described in the Guidance Document, every
decision received additional coding in the
favorability category to reflect the manner in
which favorability was determined.
A variety of quality assurance measures were put
in place to optimize coding consistency. The
measures included, but were not limited to:

u Coding of the first 150 decisions in the Study
Sample by two separate researchers and
conducting a comparison of the coding
results.
u Coding of the first 10 decisions of each
researcher by a project supervisor and
conducting a comparison of the coding
results.
u Adjustments and calibrations to the
Guidance Document based on the coding
comparisons.
u Weekly questions and answers among all
researchers and project supervisors.
u The ability of researchers to flag decisions for
supervisory review.
u Supervisory review of over 65 percent of the
decisions.
u External review of 250 decisions by criminal
defense practitioners.

relationship to be considered statistically
significant, it must meet a minimum level of
significance, which was set at .05 in this study. In
other words, if a chi-square calculation is less than
the .05 level, there would be less than a five
percent probability that the correlation occurred
by chance.
It is important to acknowledge the limitations of
the study’s methodology. As discussed earlier, this
study only looks at decisions that stem from a
challenge to a criminal conviction, which are
almost exclusively the result of a trial, raised
through a writ of habeas corpus, an appeal, and in
limited instances a post-trial motion. The study
therefore does not touch on the majority of
criminal prosecutions resolved without trial,
which make up more than 90 percent of all
criminal cases,322 or those cases in which the
information is yet to be discovered. In addition,
the Study Sample includes less than one-third of
the federal court decisions citing Brady during the
selected five-year time period, and it does include
Brady claims that were abandoned before
reaching federal court.

In addition to the above quality assurance
measures, Project Supervisors conducted a
significant review of the decisions and the coding
for a variety of purposes, including code
correction, trend analysis, supplemental coding,
code correction, and other edits.
Researchers analyzed the data for statistical
significance to find issues that were not likely to
occur randomly, but rather were attributable to a
specific cause. Statistical significance was
determined by conducting a chi-square
calculation, used to evaluate the level of statistical
significance attained in a cross-tabulation. The
chi-square calculation shows how likely it is that
an observed distribution is due to chance. For a

How Courts Are Impeding Fair Disclosure In Criminal Cases

3

BRADY MAterIAlIty StUDy
gUIDAnCe DoCUMent
his document seeks to provide step-by-step guidance for the analysis and coding of every decision
reviewed as part of the Brady Materiality Study being conducted by VERITAS and NACDL.
The goal of this document is to create and maintain maximum consistency throughout the entire
coding process. This document aligns with the coding spreadsheet and describes each piece of information
that must be listed on the coding spreadsheet. Please review this document in its entirety prior to coding.
Note: The phrase “the opinion” is used throughout this document to refer to the written opinion that you
are reading, analyzing and coding.

T
4

Decision name — List the decision name provided by Westlaw. Only include the last name(s) of the
party. Abbreviate “versus” as “v.” and “United States” as “U.S.”
Citation — List the Westlaw citation only. If there is no Westlaw citation, then list the federal reporter
citation.
Higher Court review of the opinion (A/r/F) — This category looks at whether the opinion was
reviewed by a higher court and, if so, whether the opinion was affirmed or reversed. Use Westlaw’s “Full
History” and “Direct History” functions to determine the correct entry for this column. If the opinion was
reviewed by more than one higher court, such as a Circuit Court and the U.S. Supreme Court, then enter
the ruling on the opinion of the highest court only. Mark “A” for an affirmed ruling, “R” for a reversed
ruling, and “F” if there was no higher court review of the case.
Brady Merits Claim (y/n) — This category asks, as an initial matter, whether this opinion addresses a
Brady claim on its merits. If, for example, there is no Brady claim at all or the opinion states that the
defendant “has not exhausted state remedies” and thus the Brady claim is not ripe for consideration, then
the opinion does not address a Brady claim on its merits.
If, for example, the opinion decides the case on another issue and does not reach the Brady claim, then
the opinion does not address a Brady claim on its merits. If there is absolutely no discussion of the Brady
claim other than a flat denial, then the opinion does not address a Brady claim on its merits. However, if,
for example, the opinion dismisses the defendant’s Brady claim on the grounds that there was no
suppression, then the opinion does address a Brady claim on its merits.
If the court does not address a Brady claim on its merits, then type “N” and move on to the next case. If
the court does address a Brady claim on its merits, then type “Y” and continue the analysis and coding.

year of Decision — List the year the opinion was
decided by the court.
trial year — If available, list the year that the trial,
or proceeding out of which the Brady claim arose,
concluded. To the extent there were multiple trials
or proceedings, use the trial or proceeding
referenced in the opinion. If the opinion is based
on a motion, and not a trial, then list the same year
as the opinion.
Procedural Posture — List the method in which
the underlying case or decision reached the court
writing the opinion. Use the following phrases:
n
n

n

A = Appeal
HP = Habeas petition to be reviewed on
the merits, including opinions adopting all
or part of a Magistrate Judge’s Report and
Recommendation
HRR = Habeas petition report and
recommendation, i.e., opinions of
Magistrate Judges

[Note: This classification will require additional
follow-up to determine whether the recommendation
was adopted. Please look at the history to find whether
the recommendation was adopted and include in the
Notes section. See Notes for further instructions.]
u HD = Appeal of Habeas petition denial
u HG = Appeal of Habeas petition grant
u MPJ = Motions post-judgment (to vacate, for
new trial, for judgment of acquittal)
u MTN = Motions during trial (for mistrial, to
dismiss, to suppress evidence)

n

MD = Motion to Dismiss

n

MM = Motion for Mistrial

n

MS = Motion to Suppress Evidence

u OTHER = Procedural postures listed below:
n
n

n

CN = Petition for Writ of Coram Nobis
COA = Request for Certificate of
Appealability
ASHP = Application for Stay of HP

origin 1 — This category looks at the very first
point of entry, into the criminal justice system, of
the case upon which the opinion is based. List
“State” for decisions originating in state court or
“Fed” for decisions originating in federal court.
origin 2 — This category looks at the very first
point of entry, into the criminal justice system, of
the case upon which the opinion is based. For
decisions originating in state court, list the twoletter abbreviation of that state. For decisions
originating in federal district court, list the
commonly accepted abbreviation for that court,
such as “E.D.N.Y.,” “D.D.C.,” “S.D. Cal.,” etc.
Current Juris 1 — This category looks at the court
that issued the opinion. List “District” for federal
district courts, “Circuit” for federal circuit courts,
and “SCOTUS” for the U.S. Supreme Court.
Current Juris 2 — This category looks at the court
that issued the opinion. For federal district courts,
list the commonly accepted abbreviation for that
court, such as “E.D.N.Y.” “D.D.C.” “S.D. Cal.” etc.
For federal circuit courts, simply list the circuit
court’s number only (i.e., “2” not “2nd”). For the
U.S. Supreme Court, simply list “U.S.”

How Courts Are Impeding Fair Disclosure In Criminal Cases

5

Defense Attorney name — If available, list the
complete name of the defense attorney(s) as it
appears in the opinion. If there is no name, leave
this entry blank. If the defendant is pro se, then
type the defendant’s full name. This category
looks at the proceedings related to the opinion,
not the lower court proceedings.

6

type of representation — Mark the
appropriate number in the box according to the
type of defense representation as it appears in the
opinion. This category looks at the proceedings
related to the opinion, not the lower court
proceedings. Select from:
u Select (1) if Represented by Counsel.
u Select (2) if Pro Se.
u Select (3) if Unknown.
Crime — Most serious charge — List the most
serious or leading criminal charge against the
defendant. Use your best judgment on which
crime is the most serious. If you have a question,
please consult a supervisor.
type of Crime(s) — Mark the appropriate
number in the box according to the most serious
type of crime charged against the defendant.
Select from the following:
u Select (1) if Violent (non-sex) = Violent
crimes, not sexual in nature, such as murder
or assault.

u Select (4) if Drug = Crimes involving
controlled substances.
u Select (5) if White Collar and Reg =
Financial crimes, corruption, paperwork or
regulatory violations, etc.
u Select (6) if Other = Anything that does not
easily fit into the above categories.
Death Sentence Imposed — This category asks
whether a death sentence was imposed in the
underlying case. Mark “Y” or “N.”323
nature of the Information — Describe with
specificity the information the defendant asserts
the government withheld in violation of Brady.
If there is more than one piece of information,
label each with a), b), c) ... etc.
type of Information — Mark the appropriate
number in the box(s) according to the type(s) of
information the defendant asserts the
government withheld in violation of Brady. Mark
as many types that apply to the information.
Select from the following:
u Select (1) if Physical — This category
includes physical items (any material object
such as a murder weapon), trace material
(such as fingerprints or firearm residue), and
biological material (such as DNA).

u Select (2) if Sex (violent or not) = Sex crimes,
violent or non-violent, such as rape or child
porn possession.

u Select (2) if Statements/Testimony — This
category includes statements or declarations
of fact, either oral or written, by any person.
This includes transcripts, statements to or by
police, misidentifications or failures to
identify the accused, etc.

u Select (3) if Property = Crimes against
property, such as arson or burglary.

u Select (3) if Documentary — Documentary
information includes any media by which

information can be preserved, such as police
reports, medical records, photographs, tape
recordings, films, printed emails, and writings
on paper. This includes information on
criminal history, prior bad acts and known but
uncharged conduct or bad acts, as well as
information on mental or physical
impairments of the accused. This does not
include statements covered by the
“statements/testimony” category.
u Select (4) if Incentive/Deal — Information on
an agreement between the government and a
witness, in which the witness is promised, given
or may be given, some incentive, benefit,
leniency, etc., in exchange for his or her
testimony, statement or assistance.
u Select (5) if Other — Information that is not
physical, testimony, or documentary in nature.
Incentive Deal Code — This category seeks to
code the different types of incentive/deal
information. Please code this section only if this is
an incentive/deal decision designated by a (4) in
the Nature of Information code. Select from:
u Select (1) if the incentive/deal information
involves a government deal with a witness.
u Select (2) if the incentive/deal information
involves a witness with an admitted selfinterested reason to testify.
u Select (3) if the incentive/deal information
involves a government witness receiving
unexplained benefits.
u Select (4) if the incentive/deal information
involves information suggesting the witness
had a self-interested motive to testify.

u Select (5) if the incentive/deal information
cannot be substantiated according to the facts
and/or evidence.
Information Code — This category asks whether
the information the defendant asserts the
government withheld in violation of Brady is
exculpatory
information,
impeachment
information, or both. This category looks at the
information from the perspective of the
defendant and his or her asserted characterization
of the information as exculpatory, impeachment of
both. Select (1) for exculpatory, (2) for
impeachment, and (3) for both. Consider these
definitions as guidance:
u Exculpatory: Information that is favorable to
the defendant, points to the defendant’s
innocence or mitigating defendant’s guilt.
u Impeachment: Information that calls into
question the credibility of a witness against the
defendant, including a police officer or other
agent of the government.
result of Brady Claim — Provide a short
description of the court’s conclusions on the Brady
claim, as articulated in the opinion. If there is no
explanation of the court’s ruling, then note that
here. If there are different results for different
pieces of information, please denote that with the
corresponding a), b), c) from above.
Brady result Code — This category asks for the
court’s ruling on the defendant’s asserted Brady
violation as articulated in the opinion. The court
may rule based on prong (1) or (2) but then engage
in a discussion of materiality. If that happens, then
code based on the actual ruling and not any
additional discussion. Select only one from the
following:

How Courts Are Impeding Fair Disclosure In Criminal Cases

7

u Select (1) if the opinion concludes there was
no withholding.
u Select (2) if the opinion concludes information
was withheld, but it was not favorable.
u Select (3) if the opinion concludes favorable
information was withheld, but it was not
material.
u Select (4) if the opinion concludes there was a
Brady violation.

8
Favorable Withheld Code — This category asks
whether the information the defendant asserts the
government withheld was actually withheld and
favorable. “Withholding” in this category includes
decisions in which favorable information was
disclosed late. Only those decisions with Brady
result Code (1), (3), or (4) should be coded in this
section. Please select one of the following:
u FW = Favorable information withheld,
favorable information disclosed late
u O = Other, information not favorable,
information not relevant, information not
withheld
Favorability Code — This category asks whether
the favorability of the withheld information is
expressly stated by the court, acknowledged by the
court or implicit in the facts of the case. The
decisions in this category are assessed from the
perspective of the court as well as considering the
stated facts of the case. Please select one of the
following:

does not expressly call the information
“favorable,” but does state that the information
has either “exculpatory” or “impeachment”
value to the defense)
u FI = Favorable Implicit (The court is silent on
the favorability of the information, but
favorability is implied upon a reading of the
facts of the decision by the Research Team)
Favorable late Disclosure Code — This category
seeks to code decisions in which favorable
information was disclosed late. Please code this
section only if this is a favorable withheld
decision designated by a FW in the Favorable
Withheld Code. Select from the following:
u FL = Favorable Late (Favorable information
was disclosed late)
u O = Other (Information was not favorable,
information was timely disclosed, favorable
information was withheld)
Favorable late Disclosure timing — This
category seeks to code the timing of the late
disclosure of favorable information. Please code
this section only if this is a favorable late
disclosure decision designated by a FL in the
Favorable Late Disclosure Code. Select from the
following:
u P = Pre-trial
u D = During trial
u A = After government received

u FE = Favorable Express (The court expressly
calls the information “favorable”)

u E = End of trial

u FA = Favorable Acknowledged (The court

Due Diligence Code — This category seeks to
code those decisions in which the court finds

information is not withheld because the defendant
knew about the information or could have
obtained the information through exercise of due
diligence. Please code this section only if this is a
no withholding decision designated by a (1) in the
Brady Result Code. Select from the following:

there was no withholding or the information was
not favorable, but continues to do a materiality
analysis, fill out the materiality analysis columns.

u O = Other, the information was disclosed to
the defendant or the information is not
relevant or favorable to defendant’s claim

Materiality tests — This category seeks the
court’s ultimate reasoning and conclusion on the
materiality of the withheld information. This
selection should not be based on the court’s general
recitation of case law, precedent and standards of
review. Rather, the reviewer should select which of
the following tests most closely parallels or
accurately reflects the test/reason articulated by the
court when declaring that the information at issue
is or is not material. Possible variations on each test
have been provided below. Please select more than
one code if necessary:

Due Diligence basis — This category seeks to
code the basis for the court’s imposition of the due
diligence rule upon the defendant. Please code this
section only if this is a due diligence decision
designated by a DD in the Due Diligence Code.
Select from the following:

u rD = reasonable Doubt: Whether the
withheld information creates a reasonable
doubt that did not otherwise exist. Whether,
in light of the whole record, the withheld
information creates a reasonable doubt that did
not otherwise exist.

u DD = The court finds relevant or favorable
information not to be withheld because the
defendant knew about the information or
could have obtained the information through
exercise of reasonable diligence

u C = Defendant created the information
u DD = Defendant could have obtained the
information through due diligence
u K = Defendant knew about the information
no Withholding Details — Provide a description
of the court’s reasoning behind its finding of no
withholding. Please code this section only if this
is a no withholding decision designated by a (1) in
the Brady Result Code.
Brady Materiality Analysis Details — Provide a
description of the court’s Brady materiality analysis
as articulated in the opinion. Include any factors
the court disregarded, considered but dismissed,
and/or found persuasive. If the court rules that

u SCrD = Significant Chance of reasonable
Doubt: Whether there is a significant chance
that the withheld information would have
induced a reasonable doubt in the minds of
enough jurors to avoid conviction.
u rl = reasonable likelihood: Whether there
is a reasonable likelihood that the withheld
information could have affected the judgment
of the trier of fact. Whether there is any
reasonable likelihood that the withheld
information might have affected the jury’s
ultimate judgment.
u rProb = reasonable Probability: Whether
there is a reasonable probability that, had the
information been disclosed, the result would
have been different. Whether the withheld

How Courts Are Impeding Fair Disclosure In Criminal Cases

9

information would have made a difference
great enough to show a reasonable probability
that the result would have been different.
Whether there is reasonable probability that
disclosure would have made any difference at
the guilt or penalty stage of the trial

10

u Ft = Verdict Confidence/Fair trial: Whether
the withheld information could reasonably put
the whole case in such a different light as to
undermine confidence in the verdict. Whether,
in the absence of the withheld information, the
defendant received a fair trial, understood as a
trial resulting in a verdict worthy of confidence.
Whether we can be confident that the jury
would have returned the same verdict had the
information been disclosed.
u rPoss = reasonable Possibility: Whether
there is a reasonable possibility that, had the
information been disclosed, the result would
have been different.
u Pe = Preponderance of Information:
Whether the defendant has shown, by a
preponderance of the evidence, that disclosure

of the withheld information would have
resulted in acquittal.
u CC = Clear and Convincing: Whether the
defendant has shown, by clear and convincing
evidence, that disclosure of the withheld
information would have resulted in acquittal.
u DV = Different View of testimony: Whether
there is a reasonable probability that, had the
information been disclosed, one or more
members of the jury could have viewed the
witness’s testimony differently.
u Pt = Probative tendency: Whether the
withheld information has some probative
tendency to preclude a finding of guilt or lessen
punishment.
u ot = other: Any test that does not fit into
one of the above categories. Provide the test
language in “Brady Materiality Analysis
Details” category.

1.The Study Sample included only decisions made by federal courts. However, these decisions resolved Brady claims from both federal
and state prosecutions. Decisions originating in state courts generally reached the federal courts through a petition for a writ of habeas corpus.
See 28 U.S.C. § 2254.
2. Stratified sampling is generally used when a population is heterogeneous, where sub-populations, commonly called strata, can be
isolated. A stratified sample is obtained by taking samples from each stratum or sub-group of a population. To get a stratified random sample
of approximately 1,500 decisions, researchers first found the percentage of the total: 1,500 targeted decisions / 5,587 total decisions between
August 2007 to August 2012 = 26.8 percent. To get a random sampling of these targeted 1,500 decisions, the 5,587 decisions were first
grouped by year. Using Microsoft Excel’s =Rand() formula, each decision in each year was assigned a random decimal between 0 and 1.
Researchers then arranged the decisions in each respective year from smallest random decimal to largest random decimal and starting from
the smallest decimal, selected the corresponding number of decisions from the stratified sample calculation, 26.8 percent of the decisions
from each year.
3.There were some decisions in which the court resolved the Brady claim on the merits, but did so with either a flat denial or a discussion
so limited that the researchers were unable to discern any meaningful information about the claim. Because these decisions did not include
a merits discussion, and therefore could not be analyzed in the same manner as the “merits” decisions, they were not included in the “merits”
group of decisions. Rather, these decisions were included in the “non-merits” group of decisions and did not receive any additional coding.
4. Ultimately, the decisions coded as “weapon” and “immigration” crimes were consolidated together and added to the decisions coded
as “other” crimes for the purposes of data presentation and statistical analysis.
5. See supra note 92 (noting that 97 percent of federal convictions and 94 percent of state convictions are the result of a plea agreement).
6. After the initial coding, Project Supervisors reviewed all the decisions coded as “death sentence imposed” in order to exclude those
decisions in which a petitioner had been facing the death penalty at one point, but the possibility of receiving the death penalty was later
removed. Thus, the group of death penalty decisions discussed in this report only includes those in which the petitioner was in fact facing
the death penalty at the stage of proceedings under analysis — i.e., that the court assessing the Brady claim was doing so under the actual
risk of sending the petitioner to execution.

APPenDIx b — rePort gloSSAry
Brady Violation: A court resolves a Brady claim by finding that the prosecution withheld or failed to
disclose favorable, material information in violation of Brady v. Maryland.
Bagley Standard: The standard for assessing materiality articulated in the U.S. Supreme Court decision
of U.S. v Bagley, 473 U.S. 667, 702 (1985) (Specifically, information is only material if there is a “reasonable
probability” that the result would have been different had the information been disclosed to the defense).
Brady v. Maryland: U.S. Supreme Court decision holding that the non-disclosure of favorable information
to the accused violates due process when the information is material either to guilt or punishment. 373
U.S. 83 (1963). This holding is sometimes referred to as the Brady rule.
Chi-Square Calculation: The chi-square calculation shows how likely it is that an observed distribution
is due to chance.
Death Penalty Decision: Decision in which the petitioner/appellant was in fact facing the death penalty
at the stage of proceedings under analysis — i.e., the court assessing the Brady claim was doing so under
the actual risk of sending the petitioner/appellant to execution.
Due Diligence Decision: Decision in which the court excuses the prosecution’s non-disclosure or late
disclosure of relevant or favorable information by imposing the due diligence ‘rule’ on the defense.
Due Diligence ‘rule’: Rule that excuses the prosecution’s failure to disclose information if the defendant
could have, should have, or actually did know about the undisclosed information, or the essential facts
permitting the defendant to take advantage of the information.
ethical rule order: Court order that requires prosecutors to comply with ABA Rule 3.8(d) or state law
adopting the rule, which requires disclosure of information that “tends to negate the guilt of the accused
or mitigates the offense,” and states that “willful and deliberate failure to comply” with the mandate of Rule
3.8(d) will be viewed as contempt of court.
Fairness in Disclosure of evidence Act of 2012: U.S. Senate bill 2197, introduced by Senator Lisa
Murkowski and others during the 112th Congress, requiring prosecutors to disclose all information that
may reasonably appear favorable to the defendant and appellate courts to employ a harmless beyond a
reasonable doubt standard of review for disclosure violation claims.
Favorable Information: Information that tends to negate the guilt of the defendant, to mitigate the
defendant’s sentence, or to have a negative impact on the credibility or reliability of a government witness.
This information includes both admissible and inadmissible evidence.

How Courts Are Impeding Fair Disclosure In Criminal Cases

1

Favorable Information Decision: Decision in which the court explicitly states the information is
“favorable,” the court implies the information is favorable by acknowledging the exculpatory or impeaching
value of the information, or the favorable nature of the information could be discerned from a reasonable
reading of the facts.
Federal Criminal Procedure rule 16: Rule for U.S. District Courts that establishes disclosure rules,
procedures, and obligations for both the prosecution and the defense in relation to a federal criminal
prosecution.
Federal-originated Decision/Case: Decision in which the underlying case originated in federal court.

2

guidance Document: Document implementing the study methodology by providing step-by-step
guidance for the analysis and coding of every decision reviewed as part of the study. The Guidance
Document is part of the Methodology Appendix and aligns with a coding spreadsheet used by the
Research Team to collect data on every entry in the Study Sample.
Habeas Corpus: A habeas corpus petition is a petition filed with a court by a person who objects to his own
or another’s detention or imprisonment. The petition must show that the court ordering the detention
or imprisonment made a legal or factual error.
Incentive/Deal Information: Information of an agreement between the government and a witness, in
which the witness is promised, given, or may be given, some incentive, benefit, leniency, etc., in exchange
for his or her testimony, statement or assistance. This also includes information that a witness had an
admitted self-interest to testify, information of a government witness receiving unexplained benefits, and
information suggesting a witness had a self-interested motive to testify.
Jencks Act: A federal statute codified at 18 U.S.C. § 3500 that, among other things, permits prosecutors
to withhold witness statements until after the witness has testified on direct examination.
Kyles Standard: The standard for materiality articulated in the U.S. Supreme Court decision Kyles v.
Whitley, 514 U.S. 419, 434 (1995) (Specifically, when deciding materiality, “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.”).
late Disclosure Decision: Favorable information decision in which the disclosure of the favorable
information was untimely.
Methodology Appendix: A detailed description of the methodology implemented by the Research Team
in analyzing the Study Sample.
Merits Decision: Decision within the Study Sample that addresses and analyzes a Brady claim on the
merits.

non-Merits Decision: Decision within the Study Sample that does not address the defendant’s Brady
claim on the merits because the claim is not ripe for consideration, the opinion decides the case on another
issue and does not reach the Brady claim, or the opinion contains no discussion of a Brady claim.
not Favorable: The decision resolves the Brady claim by holding that the information at issue is not
favorable because it lacks exculpatory, impeachment, or mitigating value.
not Material: The decision resolves the Brady claim by holding that the information at issue is not
material because there is no reasonable probability that the result would have been different had the
information been disclosed and/or the withheld information cannot reasonably be viewed to put the
whole case in such a different light as to undermine confidence in the verdict.
no Withholding/not Withheld: The decision resolves the Brady claim by finding the information at
issue was not withheld, that it was disclosed, or that the prosecution had no duty to disclose it.
Project Supervisors: VERITAS Initiative Director Kathleen “Cookie” Ridolfi, NACDL Counsel for
White Collar Crime Policy Tiffany M. Joslyn, and VERITAS Initiative Pro Bono Research Attorney
Todd Fries.
research team: The group of individuals who developed and executed the study, including VERITAS
Initiative Director Kathleen “Cookie” Ridolfi, NACDL Counsel for White Collar Crime Policy Tiffany
M. Joslyn, VERITAS Initiative Pro Bono Research Attorneys Todd Fries and Jessica Seargeant, and six
law student volunteers from the Santa Clara University School of Law.
Statements: Information consisting of statements or declarations of fact, either oral or written, by any
person. This includes transcripts, statements to or by police, misidentifications, or failures to identify the
accused, and includes statements made by the victim, witnesses, co-defendants, and defendants.
State-originated Decision/Case: Decision in which the underlying case originated in state court.
Study Sample: The complete set of 1,497 federal court decisions analyzed by the Research Team.
theory of the Case: A theory of the case is an advocate’s position and approach to the undisputed and
disputed evidence that will be presented at trial. The theory of the case is usually developed before a trial
begins and sets out the factual support for the verdict an advocate is seeking.
Undisclosed Favorable Information: Information that the Research Team determined to be favorable
that was never disclosed to the defense.
Withheld Favorable Information: Information that the Research Team determined to be favorable that
was never disclosed to the defense or was withheld by the government and then disclosed in an untimely
manner.

How Courts Are Impeding Fair Disclosure In Criminal Cases

3

AU tHor bIogrAPHIeS

KAtHleen “CooKIe” rIDolFI is a Professor of Law at Santa Clara University
School of Law and the cofounder and former Director of the Northern California Innocence
Project. In 2004, she co-founded the Innocence Network, an affiliation of organizations dedicated
to pursuing exonerations on behalf of wrongfully convicted prisoners and working to redress the
causes of wrongful conviction. She was lead researcher and co-author of Preventable Error, A
Report on Prosecutorial Misconduct in California 1997-2009. From 2004-2008, she served on the
California Commission on the Fair Administration of Justice tasked with the study and review
of the administration of criminal justice in California.
In 2010, Professor Ridolfi launched the VERITAS Initiative, a research and policy program at
Santa Clara University School of Law committed to pursuing data-driven justice reform. She
remains committed to educating law students by teaching in the areas of criminal law, wrongful
conviction, and legal ethics. Professor Ridolfi has been the recipient of numerous awards, including
California Lawyer Magazine Attorney of the Year, Women Defenders Annual Award, and the
ACLU’s Don Edwards Civil Liberties Award. She has also been recognized by the Daily Journal
as one of the top 75 women litigators in California.

tIFFAny M. JoSlyn serves as Counsel for White Collar Crime Policy at the National
Association of Criminal Defense Lawyers (NACDL). In this capacity, she tracks and analyzes
criminal legislation in order to prevent overcriminalization, overfederalization, and the further
erosion of mens rea. Ms. Joslyn works on various advocacy and education initiatives in these areas
and criminal justice reform generally. She has authored papers and articles on white collar and
criminal justice litigation, legislation, and policy. Ms. Joslyn served as NACDL’s lead researcher
on two intensive research studies and is co-author of Without Intent: How Congress Is Eroding the
Criminal Intent Requirement in Federal Law. She regularly collaborates with an ideologically
diverse coalition of organizations in support of a bipartisan reform agenda and works with the
nation’s top criminal defense lawyers to develop and execute two national seminars annually.
Prior to joining NACDL, Ms. Joslyn clerked for the Honorable John R. Fisher of the District of
Columbia Court of Appeals. She graduated with honors from George Washington University
Law School, where she co-authored the 2006-07 Van Vleck Constitutional Law Moot Court
Competition Problem and served as Co-President of Street Law. Ms. Joslyn graduated summa cum
laude from Clark University, where she majored in American Government with concentrations
in Law, Ethics, and Public Policy.

toDD H. FrIeS is a Pro Bono Research Attorney with the VERITAS Initiative at the Santa
Clara University School of Law and the Operations Director for the Northern California
Innocence Project (NCIP). His work on behalf of the VERITAS Initiative began in 2011, when
he coordinated a multi-state research effort and national speaking tour focused on prosecutorial
misconduct. As Operations Director for NCIP, Mr. Fries is responsible for enhancing the
organization’s internal processes and infrastructure to increase its efficiency, effectiveness, and
sustainability. He joined NCIP in 2010 as a Research Attorney focusing on policy initiatives to
help prevent wrongful conviction.
Prior to working at the VERITAS Initiative and NCIP, Mr. Fries worked as an Employment
Litigation Associate at Paul Hastings LLP in Palo Alto and as an attorney at the Santa Clara
County Superior Court Family Law Self-Help Office. He graduated cum laude from Santa Clara
University School of Law in 2009 with a certificate in Public Interest and Social Justice after
receiving a Bachelor of Arts from the University of California, Los Angeles.

How Courts Are Impeding Fair Disclosure In Criminal Cases

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This publication is available online at

www.nacdl.org/discoveryreform/materialindifference

N ATIONAL A SSOCIATION OF
CRIMINAL DEFENSE LAWYERS

1660 l Street nW, 12th Floor
Washington, DC 20036
Phone: 202-872-8600

www.nacdl.org