Thu. Jul 11th, 2024

Unsuccessful but Instructive Brady/Napue Cases

(Updated September 27, 2009)
* capital case

District Attorney’s Office for the Third Judicial Dist. v. Osborne,
___ U.S. ___, 129 S. Ct. 2308 (2009)
The Court reversed the Ninth Circuit’s holding in §1983 action, “relying on the prosecutorial duty
to disclose exculpatory evidence” recognized in Brady, that Osborne was entitled to access to
evidence for DNA testing to be conducted at his own expense. Osborne had been convicted in
Alaska state courts of kidnaping, assault, and sexual assault. He relied on a mistaken
identification defense at trial. In state post-conviction, he asserted ineffective assistance of
counsel because his counsel had not sought RFLP DNA testing, which was available at the time
of trial, but the state used the far less precise DQ Alpha testing that “cannot narrow the
perpetrator down to less than 5% of the population.” He was denied access for DNA testing and
his ineffective assistance of counsel claim was denied based on counsel’s strategic reasons for not
requesting the testing. The court relied heavily on Osborne’s admissions of guilt in an application
for parole. In the §1983 action, the District Court and the Ninth Circuit ordered that Osborne had
a constitutional right to DNA testing.
The Court of Appeals affirmed, relying on the prosecutorial duty to disclose
exculpatory evidence recognized in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.
Ct. 989, 94 L.Ed.2d 40 (1987), and Brady v. Maryland, 373 U.S. 83, 83 S. Ct.
1194, 10 L.Ed.2d 215 (1963). While acknowledging that our precedents
“involved only the right to pre-trial disclosure,” the court concluded that the Due
Process Clause also “extends the government’s duty to disclose (or the defendant’s
right of access) to post-conviction proceedings.” 521 F.3d. at 1128. Although
Osborne’s trial and appeals were over, the court noted that he had a “potentially
viable” state constitutional claim of “actual innocence,” id. at 1130, and relied on
the “well-established assumption” that a similar claim arose under the Federal
Constitution, id. at 1131; cf. Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853,
122 L.Ed.2d 203 (1993). The court held that these potential claims extended
some of the State’s Brady obligations to the postconviction context.
129 S. Ct. at 2315. The Court held that Osborne had a “liberty interest in demonstrating his
innocence with new evidence under state law” and that this “state-created right” could in some
instances be protected by due process. The Ninth Circuit “went too far, however, in concluding
that the Due Process Clause requires that certain familiar preconviction trial rights be extended to
protect Osborne’s postconviction liberty interest.” Osborne was not claiming that Brady
controlled the case, but the Court addressed this finding anyway. In short, a “criminal defendant
proved guilty after a fair trial does not have the same liberty interests as a free man.” The
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“presumption of innocence” is gone. The State “has more flexibility in deciding what procedures
are needed in the context of postconviction relief.” Post-conviction due process rights are “not
parallel to” trial due process rights. In post-conviction, the convicted “has only a limited interest
in postconviction relief.” In this light, “Brady is the wrong framework.”
United States v. Ruiz,
536 U.S. 622 (2002)
“[T]he Constitution does not require the Government to disclose material impeachment evidence
prior to entering a plea agreement with a criminal defendant.” 536 U.S. at 633.
*Strickler v. Greene,
527 U.S. 263 (1999)
The prosecution’s suppression of favorable evidence constitutes “cause” under the “cause and
prejudice” analysis undertaken to determine whether a federal habeas corpus petitioner can
overcome a procedural default. Likewise, “prejudice” as used in that test equates with the
reasonable-probability-of-a-different-result materiality standard of Brady. As to whether criminal
defendants must exercise some form of “due diligence” in order to avoid procedurally defaulting a
Brady claim, the Court explained that, “[i]n the context of a Brady claim, a defendant cannot
conduct the ‘reasonable and diligent investigation’ mandated by McCleskey to preclude a finding
of procedural default when the evidence is in the hands of the State.” With regard to materiality,
the court of appeals erred by focusing solely on the sufficiency of the evidence without asking the
more appropriate question “whether ‘the favorable evidence could reasonably be taken to put the
whole case in such a different light as to undermine confidence in the verdict.'”
United States v. Williams,
504 U.S. 36 (1992)
District Court may not dismiss an otherwise valid indictment on the ground that the government
failed to disclose to the grand jury “substantial exculpatory evidence” in its possession.
United States v. Bagley,
473 U.S. 667 (1985)
Evidence is material when there is a “reasonable probability” that the result of the trial would have
been different had the evidence been disclosed to the defense. This includes impeachment
evidence other than a “deal.” A constitutional error occurs only if the evidence is material in the
sense that its suppression undermines confidence in the outcome of the trial. The Strickland
formulation of the Agurs materiality standard—a reasonable probability that the result of the
proceeding would have been different—is sufficiently flexible to cover all three types of situations
outlined in Agurs.
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United States v. Agurs,
427 U.S. 97 (1976)
Three situations where Brady applies: (1) State’s case included perjured testimony of which
prosecutor knew or should have known; (2) Defense requested but was denied specific evidence
material to guilt; (3) Defense made general request but prosecution suppressed evidence of
sufficient probative value to create reasonable doubt as to guilt.
Donnelly v. DeChristoforo,
416 U.S. 637 (1974)
“False evidence” includes the introduction of specific misleading evidence important to the
prosecution’s case, or the nondisclosure of specific evidence valuable to the defense—but it does
not include isolated passages of the prosecutor’s closing argument, which is billed in advance to
the jury as opinion, not evidence.
*Lott v. Bagley,
569 F.3d 457 (6 Cir. 2008), cert. denied, 129 S.Ct. 2053 (2009) th
Capital habeas petitioner’s admission that his legal counsel knew of the facts constituting his
Brady exculpatory evidence claim six years ago precluded his successive habeas petition, since he
failed to meet the due diligence requirement of 28 U.S.C.A. § 2244(b)(2).
*Morris v. Ylst,
447 F.3d 735 (9th Cir. 2006), cert. denied, 549 U.S. 1125 (2007)
In context of Mooney-Napue claim, court holds that prosecutor has duty to investigate following
trial if she suspects perjury has occurred. Loss on merits.
*Alley v. Key,
2006 WL 1313364 (6th Cir.) (unpublished), cert. denied, 548 U.S. 921 (2006)
No right to post-conviction discovery of DNA under procedural or substantive due process or
Barker v. Fleming,
423 F.3d 1085 (9th Cir. 2005), cert. denied, 547 U.S. 1138 (2006)
Federal court applied de novo review to Brady claim because state court’s failure to conduct
cumulative materiality analysis was contrary to Supreme Court precedent. Court went on to find
suppressed evidence was not material.
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Government of Virgin Islands v. Fahie,
419 F.3d 249 (3rd Cir. 2005)
Dismissal with prejudice may be an appropriate remedy for a Brady violation should the petitioner
demonstrate a certain level of wilfulness and prejudice not shown here.
*Wisehart v. Davis,
408 F.3d 321 (7th Cir. 2005), cert. denied, 547 U.S. 1050 (2006)
Prosecution was not required to disclose to defense that it had declined to prosecute a witness for
burglaries it suspected the witness had committed because it didn’t want to dissuade him from
testifying against Wisehart. A Brady claim requires either an implied or an express promise. Good
survey of different kinds of witness arrangements that do and do not support Brady claims. Note:
The case was remanded for an evidentiary hearing on Wisehart’s juror misconduct claim.
*Lovitt v. True,
403 F.3d 171 (4th Cir.), cert. denied, 546 U.S. 929 (2005)
Where court clerk destroyed all evidence following the direct appeal without contacting anyone
from the prosecutor’s office, police department, petitioner’s counsel, or the trial court, petitioner
was not entitled to relief given findings, which were not unreasonable, that the destruction was
not done in bad faith. The court also suggested that an extension of Youngblood to the
post-conviction context would likely constitute a new rule.
*Ferguson v. Roper,
400 F.3d 635 (8th Cir. 2005), cert. denied, 546 U.S. 1098 (2006)
Youngblood does not apply to destruction of evidence after trial. Here, during post- conviction
investigation, petitioner learned that an attendant at the gas station from which victim had been
abducted had turned a surveillance tape over to the police. Sometime following trial, however, the
tape was destroyed. Although Youngblood only applies to the destruction of evidence before trial,
a claim could have been raised under Brady, if the petitioner could show that the tape was
exculpatory, (which it was likely not because petitioner placed himself in a truck outside the
station), or as an ineffective assistance of counsel claim, or as a newly discovered evidence claim.
United States v. Morales-Zevala,
125 Fed.Appx. 822, 2005 WL 659027 (9th Cir. Mar. 18, 2005) (unpublished), cert. denied,
546 U.S. 929 (2005)
Brady does not apply to cases in which the government deprives the defendant of a witness by
deporting the witness.
*Crawford v. Head,
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311 F.3d 1288 (11th Cir. 2002), cert. denied, 540 U.S. 956 (2003)
State court decision rejecting Brady claim was contrary to and/or involved an unreasonable
application of clearly established Supreme Court precedent in that it “failed to recognize that the
Supreme Court altered the materiality standard in Bagley, . . . and adopted a standard requiring
only a ‘reasonable probability’ of a different outcome if the material had been disclosed.”
Specifically, with regard to prejudice, the state court had found that petitioner’s claim fell short
because the undisclosed law enforcement report reflecting the discovery of physical evidence
potentially relevant to the case “‘is not exculpatory’ and because ‘[i]n no way does it indicate that
another person committed the crime and it does not create a reasonable doubt of guilt that did not
otherwise exist.'” With regard to petitioner’s procedural default of his Brady claim, the Eleventh
Circuit found that he had shown “cause” since, “despite requests from defense counsel, the State
was in possession of the alleged Brady material, but failed to disclose it.” The appeals court went
on to conclude, however, that petitioner could not in fact demonstrate prejudice/materiality.
Although the evidence identified in the report underlying petitioner’s Brady claim may have
contained stains suitable for DNA testing (which could, in turn, undermine the prosecution’s
theory as to where the murder occurred), the court determined that its prejudice/materiality
inquiry would have to focus strictly on the state’s nondisclosure of the report itself. This was so,
the court explained, because petitioner failed to diligently seek testing of the evidence in state
court insofar as he waited until the day before his evidentiary hearing to do so. This, in turn,
justified the federal district court’s decision “in light of both § 2254(e)(2) and Rule 6(a),” to deny
petitioner’s request for testing during the federal habeas proceedings. From there, the court went
on to conclude that petitioner had not shown prejudice or materiality.
*Anderson v. Calderon,
232 F.3d 1053 (9th Cir. 2000), cert. denied, 534 U.S. 1038 (2001)
“[T]he Brady rule relies for its determination of both favorability and materiality on state law, not
federal law.” Therefore, in assessing whether a Brady violation occurred by the prosecution’s
failure to reveal evidence that would have provided grounds to suppress petitioner’s confession,
the appeals court looks to the more favorable state law concerning suppression of confessions
rather than the guiding federal cases that the California courts, at the relevant time, had declined
to follow.
United States v. Howell,
231 F.3d 615 (9th Cir. 2000)
“When a prosecutor discovers material mistakes in police reports already turned over to the
defense, the prosecutor must take appropriate steps promptly to notify the defense of the
mistakes;” the government had a duty to disclose evidence that two police reports of defendant’s
arrest contained the same error, even though the error was in defendant’s favor and the correct
information tended to support defendant’s guilt, because the existence of the errors raised an
opportunity to impeach the thoroughness of the investigation.
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Johns v. Bowersox,
203 F.3d 538 (8th Cir. 2000)
State’s nondisclosure of evidence about a monetary reward received by a prosecution witness
satisfied the first element of Brady — suppression by the State. Although the reward offer was
published in the local newspaper, petitioner did not have “equal access to the information.” The
state learned of the reward, and the witness’s interest in it, from the witness himself. “Even if
Johns had managed to learn from a newspaper that the reward existed, he had no way of learning
that [witness] had repeatedly inquired about the reward.” Petitioner failed to establish, however,
that the information suppressed by the prosecution was material.
Matthew v. Johnson,
201 F.3d 353, 364 (5th Cir. 2000), cert. denied, 531 U.S. 830 (2000)
After raising Teague sua sponte, the court surveyed the legal landscape existing at the time
petitioner’s conviction became final and found itself unable to “conclude that a state court would
have felt compelled to decide that a prosecutor’s failure to disclose exculpatory information prior
to entry of a guilty or nolo contendere plea was a Brady violation, or otherwise a violation of the
Due Process Clause.” The court likewise concluded that petitioner would also require the benefit
of a new rule in order to prevail on his claim that the prosecution’s nondisclosure of favorable
evidence rendered his plea involuntary by depriving him of the ability to make a knowing and
intelligent decision to forego his right to trial by jury. Finally, the court determined that the new
rules petitioner sought did not fall within either of Teague’s exceptions.
United States v. Pelullo,
173 F.3d 131 (3rd Cir. 1999)
At a retrial, a defendant’s prior testimony may be subject to suppression if the defendant testified
as a result of a Brady violation. The government bears the burden of showing by a preponderance
of the evidence that the defendant would have testified even if he possessed the later-disclosed
Brady material. Here, the government met its burden.
Hogan v. Hanks,
97 F.3d 189 (7th Cir. 1996)
Defendant’s “general request for ‘all exculpatory evidence'” was “equivalent to no request at all”
under Agurs, and prosecution’s failure to turn over police reports from 1978 indicating officer’s
disbelief of allegations then made by victim against another person did not violate Due Process
because the reports had a “tenuous” connection to defendant’s case, and defense counsel knew
about the victim’s past allegations.
United States v. Kern,
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12 F.3d 122 (8th Cir. 1993)
State’s knowledge of its police report potentially exonerating defendants could not be imputed to
federal prosecutor on issue of Brady violation.
United States v. Joseph,
996 F.2d 36 (3rd Cir. 1993)
Third circuit construed its decision in Perdomo to mean that, where prosecution has no
knowledge or cause to know of Brady material in a file unrelated to present case, defense must
make a specific request to trigger duty of disclosure.
United States v. Streit,
962 F.2d 894 (9th Cir. 1992)
Appellate review of Brady claim was not precluded by defendant’s inability to demonstrate that
documents which he sought contained exculpatory material and his failure to allege error in in
camera procedure.
United States v. Stuart,
923 F.2d 607 (8th Cir. 1991)
Remote possibility of the existence of Brady material in other files in other jurisdictions does not
require wholesale disclosure to defense, nor does it require trial court to conduct in camera
review of files for evidence favorable to the defense.
United States v. Tillem,
906 F.2d 814 (2nd Cir. 1990)
Government is not required to disclose evidence it does not possess or of which it is not aware.
United States v. Wilson,
901 F.2d 378 (4th Cir. 1990)
Although prosecution concealed witness’s prior statements concerning CIA agent’s intent to set up
the defendant, Brady was not implicated because the defense had the opportunity to interview the
United States v. Davis,
787 F.2d 1501 (11th Cir. 1986), cert. denied, 479 U.S. 852 (1986)
Brady does not apply if the evidence in question is available to the defense from another source.
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Bond v. Procunier,
780 F.2d 461 (4th Cir. 1986)
Denial of relief from murder conviction affirmed where District Court, without an evidentiary
hearing, determined that Williams, who claimed to have had a conversation with a key
prosecution witness during which the witness admitted to the murder, was not credible based on
information outside the record.
United States v. Schell,
775 F.2d 559 (4th Cir. 1985)
No violation where prosecutor failed to disclose a promise of leniency because that witness’s
testimony was corroborated by three other witnesses. Non-disclosure was harmless error.
Pina v. Henderson,
752 F.2d 47 (2nd Cir. 1985)
Parole officer’s knowledge of exculpatory statement by witness not imputed to prosecution,
therefore no Brady violation. Exception is where the agency can be considered an “arm of the
United States v. Truong Dinh Hung,
667 F.2d 1105 (4th Cir. 1981)
Failure to disclose exculpatory evidence was harmless error because it was cumulative to what
was in the record.
Eubanks v. United States,
2005 WL 1949474 (S.D.N.Y. August 11, 2006)
Banks v. Dretke does not represent a change in the law sufficient to constitute “extraordinary
circumstances” required for review under Rule 60(b).
*Rhoades v. Paskett,
2005 WL 3576845 (D. Idaho Dec. 29, 2005)
Legal landscape as of 1991 demonstrated uncertainty to the extent that a ruling finding that
petitioner had a right to raise a Brady claim following an Alford plea was Teague barred.
United States v. Bin Laden,
397 F.Supp.2d 465 (S.D.N.Y. 2005)
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Court rejects “reasonable forseeablity” as touchstone for determining whether government actor
is sufficiently linked to prosecution as to give it constructive notice of evidence it generates. Court
adopts totality of circumstances test and holds that based on the fact that U.S. Marshal Service
installed $75K of teleconferencing equipment for the purposes of government access to witness
Service was protecting, it could be considered an arm of the prosecution, and prosecutor was
responsible for disclosing exculpatory evidence gathered by the Service. Claims denied on other
*Schmitt v. True,
387 F.Supp.2d 622 (E.D. Va. 2005), aff’d, Schmitt v. Kelly, 189 Fed.Appx 287 (4th Cir.,
July 13, 2006), cert. denied, 549 U.S. 1028 (2006)
Court found impeachment information was suppressed but was not material. Good language
criticizing prosecutor for his pre-trial conduct and his attitude at evidentiary hearing.
Garcia v. Dretke,
2005 WL 2263675 (S.D. Tex. August 20, 2005)
Asserting Brady claim in federal habeas where petitioner pled guilty is Teague barred.
Gayles v. Brandon,
2005 WL 1130377 (E.D. Tenn. May 12, 2005)
AEDPA barred relief on Brady claim where “[a]t the time of the petitioner’s direct appeal . . .
there was no principle established in a Supreme Court case that extended the Brady disclosure
rule to the kind of implied inducement or indefinite offer of consideration, as existed in this case.”
Were the claim subject to de novo review, the district court would have found the evidence did
constitute impeachment evidence that should have been disclosed.
*Lott v. Bradshaw,
2005 WL 3741492 (N.D. Ohio 2005)
After Sixth Circuit authorized filing of successor petition raising a Brady violation and assertion
of actual innocence, district court found respondent had good cause for discovery of trial
counsel’s files regarding any information concerning Lott’s culpability, including polygraph
results, and good cause to depose trial counsel. The court found that Lott had implicitly waived
the attorney-client and work product privileges to the extent necessary for respondent to defend
the actual innocence assertion Lott made in the successor petition. The court also allowed
respondent to depose Lott. Although Lott was permitted to invoke the Fifth Amendment, an
adverse inference would be drawn from his invocation of the right.
*Hallford v. Culliver,
379 F.Supp.2d 1232 (M. D. Ala. 2004), aff’d 45 F.3d 1193 (11th Cir. 2006)
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Petitioner demonstrated cause for procedural default of Brady claim concerning a deal given to
petitioner’s daughter where counsel had relied on prosecution’s representation that Brady
material had been produced and a review of petitioner’s daughter’s juvenile file did not reveal that
she had received a deal in exchange for her testimony. The court rejected the state’s argument
that the fact that the daughter had been charged with murder and pled to a lesser offense should
have led petitioner to evidence of the deal. Even if evidence of the plea raised suspicions about the
deal, those suspicions did not confirm a duty on counsel to investigate in the face of the
representations by the State. The claim failed, however, because petitioner did not show sufficient
prejudice to overcome the default.
United States v. Mansker,
240 F.Supp.2d 902 (N.D. Iowa 2003)
In drug conspiracy case, the government’s failure to provide the defendant pre-trial with the
cooperating witnesses’ debriefing reports that did not mention the defendant constituted a Brady
violation, as did its failure to produce certain exculpatory handwritten rough notes. The court
found, however, that it cured the violation in part by barring certain government witnesses from
testifying. The court refused to find a Brady violation in the destruction of law enforcement
interview notes because defendant failed to produce evidence tending to prove that the notes
differed from the finalized reports in a way that would be exculpatory or material. The court went
on to state: “Because there is no legitimate reason for destroying rough notes and because of the
danger their destruction poses to the integrity of the criminal justice system, the court is seriously
contemplating entering an administrative order that no federal law enforcement officer or state
officer working with the Task Force in the Northern District of Iowa, absent a satisfactory
explanation for the destruction of their rough notes, will be allowed to testify if the officer
destroyed his or her notes after preparing a finalized report.”
Bell v. Poole,
2003 WL 21244625 (E.D.N.Y. April 10, 2003)
Co-arrestee’s prisoner movement slip, which was contained in city corrections department file,
was not under the control and possession of the prosecution and thus was not Brady material; the
slip was not used for investigative or prosecutorial purposes, and fact that prosecutor’s office
regularly obtained department phone and visitation records did not effectively make department
an arm of the prosecution.
Medel v. State,
184 P.3d 1226 (Utah 2008)
Petitioner’s guilty plea waived any pre-plea constitutional violations and relief from the plea
would only be permitted by a showing that the plea was entered involuntarily or unknowingly.
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Although there may be circumstances where undisclosed evidence renders a guilty plea
involuntary, this was not such a case given that the undisclosed evidence was affirmative defense
and impeachment evidence that neither suggested factual innocence nor shook the court’s
confidence in the outcome of the proceedings. Note, however, that “[i]f there is any evidence
suggesting factual innocence – even if it is impeachment evidence – the prosecution will always
have a constitutional obligation to disclose that evidence to the defendant before plea
bargaining begins.”
Odom v. United States,
930 A.2d 157 (D.C. Cir. 2007)
In aggravated assault trial, government failed to timely disclose that witness who viewed the
photo array containing defendant’s photo selected a photograph of another person. The witness
left town shortly afterwards, and government did not provide defendant of the witness’s
exculpatory evidence until over six months later. The trial court had “discretion to allow”
defendant’s introduction of “otherwise inadmissible exculpatory hearsay” to remedy “perceived
Brady violation” “imped[ing] “defendant from presenting declarant’s exculpatory evidence. Relief
denied, however, because court found “compelling proof of appellant’s identity” and “no
reasonable probability” “potential non-identification testimony would have changed” outcome.
State v. Gilchrist,
885 A.2d 29 (N.J. Super. 2005)
Photograph of rape victim not relevant or exculpatory and need not be provided to defendant who
claimed innocence and sought photo to determine if he knew victim.
*Commonwealth v. Lambert,
884 A.2d 848 (Pa. 2005)
State law did not require showing of success on Brady merits in order to qualify for “newly
discovered evidence” exception to statute of limitations. All that needed to be shown was that
evidence was unavailable to petitioner and undiscoverable through due diligence. Loss on the
State v. Harris,
680 N.W.2d 737 (Wisc. 2004)
Due process did not require the prosecution to disclose to the defendant, before he entered a
negotiated guilty plea to first-degree sexual assault of a child, material exculpatory impeachment
evidence that the alleged victim had reported being sexually assaulted by her grandfather on a
different occasion. However, the defendant was entitled to such information within a reasonable
time before trial under the reciprocal discovery statute. Given that the negotiated guilty plea was
entered into only two weeks before the scheduled trial date, a discovery violation occurred, and
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withdrawal of the guilty plea was necessary to avoid a manifest injustice.
*Allen v. State,
854 So.2d 1255 (Fla. 2003)
Where petitioner alleged a violation of Brady based on the prosecution’s failure to reveal that
testing on hairs found in the victim’s hands established that they did not belong to petitioner, the
Florida Supreme Court rejected the state’s contention that petitioner failed to establish
suppression because he was aware the tests were being conducted and therefore could have made
independent efforts to ascertain the results. “A defendant’s knowledge that the State submitted
evidence for testing . . .does not create a duty to inquire further. (Citation omitted.) The
defendant’s duty to exercise due diligence in reviewing Brady material applies only after the State
discloses it. . . . Here, the State itself retained possession of the hair analysis, and while Allen was
aware that the State was conducting such an analysis, he was never informed of the results. Brady
does not require that the defendant compel production of exculpatory material, or even that a
defendant remind the State of its obligations. Once the State obtained the results of the hair
analysis, it was required to disclose them to the defendant.” The claim lost, however, on the
materiality prong of the Brady test.
People v. Valentin,
767 N.Y.S.2d 343 (N.Y. App. 2003)
In robbery case, “the failure of the People to disclose the prior convictions of the sole eyewitness
violated their obligations under Brady v. Maryland, 373 U.S. 83.” This is true despite the fact that
“the prosecutor denied any contemporaneous actual knowledge of the eyewitness’s criminal
convictions as a consequence of his self-professed standard practice of not checking into such
matters. . . . Here, the criminal record of the eyewitness was readily available to the prosecutor
and certainly known to other individuals in his office who recently had prosecuted the eyewitness
(see Pressley, 234 A.D.2d at 954, 652 N.Y.S.2d 436).” Relief is denied, however, because the
court cannot find a reasonable probability of a more favorable result had the information been
*Thornton v. Georgia,
449 S.E.2d 98 (Ga. 1994)
Death sentence reversed on state rule requiring particularized notice of introduction of evidence
of unproven criminal acts where state failed to provide notice and witness testified to the acts
during penalty phase.
People v. House,
566 N.E.2d 259 (Ill. 1990)
Court rejected Brady claim, but accepted ineffective assistance of counsel claim, where defense
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counsel failed to discover an exculpatory statement by the victim which was memorialized by a
nurse. Prosecution had no duty to disclose this information.
Owens v. State,
305 S.E.2d 102 (Ga. 1983)
Brady and Giglio claims rejected, but Confrontation Clause claim accepted, where trial court had
granted state’s motion to prohibit defense from cross examining co-conspirator on a deal struck
between his counsel and the prosecution.

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