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THE ADVOCATE Volume 30, No. 1 January 2008
as there is a “substantial basis” for claiming that materiality exists, “the failure to make any
response is seldom, if ever, excusable.” U.S. v. Agurs, 427 U.S. 97, 106, 96 S.Ct. 2392, 2399, 49
L.Ed.2d 342 (1976).
Cases involving Brady violations typically involve discovery, after trial, of exculpatory evidence
known to the prosecution but unknown to, and therefore not specifically requested by, the
defense. These cases fall into two categories: “perjury” cases and “discovery” cases. In a
“perjury” case the discovered evidence shows that a prosecution witness committed perjury
on the stand during the trial. Since this is so very prejudicial to a defendant, the standard for
setting aside the conviction is only that the false testimony could in any reasonable likelihood
have affected the judgment of the jury. See Giglio v. U.S., 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d
104 (1975). Since a “discovery” case involves exculpatory material not available to the defendant
at trial but does not also involve perjured testimony, the standard in such cases is higher. In
order to warrant reversal, the defendant must show that the undisclosed evidence would have
created a reasonable doubt as to guilt which would not otherwise have existed without the
evidence. U.S. v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). See also Williams v.
Commonwealth, 569 S.W.2d 139 (Ky.1978).
Nevertheless, “it is fundamental, however, that the materiality of a failure to disclose favorable
evidence ‘must be evaluated in the context of the entire record.’ U.S. v. Agurs, 427 U.S. 97, 112,
96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). And the mere possibility that an item of undisclosed
information might have helped the defense, or might have affected the outcome does not
establish materiality in the constitutional sense. Id., at 427 U.S. at 112 n. 20, 96 S.Ct. at 2401-02,
49 L.Ed.2d at 354 n. 20.” St. Clair v. Commonwealth, 140 S.W.3d 510, 541 (Ky.2004).
(See also “Experts and Discovery” under “Daubert,” supra.)
Practice Tip: Discovery. RCr 7.24 is really two rules. RCr 7.24(1)&(2) describe the initial
obligations of the Commonwealth. Under the rule, these obligations are triggered by a written
request or motion from the defendant. RCr 7.24(3)(A)&(B) detail the reciprocal discovery
obligations of the defendant. Under the rule, these obligations begin only after the
Commonwealth has fully complied with its own obligations. In spite of this, though, it is quite
common for courts to enter blanket discovery orders which automatically confer reciprocal
discovery obligations on both parties. If for some reason you do not want to be automatically
bound by reciprocal discovery obligations, ask the court to follow the rule as it is written. This
may be important in cases where the Commonwealth is routinely slack in meeting its discovery
obligations. For instance, if a prosecutor routinely claims to have “open file” discovery but
never puts anything in the file, tell the court you do not want to be obligated to disclose
anything until the Commonwealth meets it obligation. File notice of a discovery inventory with
the court to inform the court of what you have (not) received.
EX PARTE HEARINGS
Practice Tip: Ex Parte Hearings. Don’t cut corners! When conducting an ex parte hearing,
make a written motion (filed with the clerk), tender a prepared order to the judge, and put the
hearing on the record. Without a record, there is no way to preserve the issue if the court
refuses your request.
EX POST FACTO
An ex post facto violation ocurrs when a criminal statute is applied retroactively to subject a
person to criminal liability for past conduct, the effect of which is to deprive him of due process
of law in the sense of being given fair warning that his contemplated conduct constitutes a
crime. Tharp v. Commonwealth, 40 S.W.3d 356 (Ky.2000). See also Purvis v. Commonwealth,
14 S.W.3d 21 (Ky.2000). Nevertheless, if the court can construe the law as not adding additional
punishment, this protection does not exist. For example, requiring registration and notification
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NOTES