Brady Book 6x9FINAL2MC2

y 

Kirk W. McAllister 

Copyright © Kirk W. McAllister 2017 | All Rights Reserved

For Jane, Graham and Aiden

“A rule thus declaring ‘prosecutor may 

hide, defendant must seek,’ is not tenable in 

a system constitutionally bound to accord 

defendants due process.” (Banks v. Dretke, 

540 U.S. 668, 696, 124 S. Ct. 1256, 1275, 157 

L. Ed. 2d 1166, 1193 (2004))

Preface 

The author believes that many of the reference works on trial procedure 

were not written by trial lawyers and were certainly not organized to 

give the trial lawyer the fast and accurate answers that are needed in 

court. The goal of this book is to provide the controlling law in your 

situation in a way that is focused, concise, and easily accessible. The 

Brady Book often quotes the court which decided the issue. 

Although employing a different materiality standard, 42 U.S.C. 1983 

civil rights law is rich in cases highlighting Brady error. When relevant, 

these decisions are offered in this work as examples of prosecutorial 

misconduct. 

You will encounter several icons in this book: 

Gives the appropriate objection for that particular trial 

situation. 

Indicates pointers, tips or strategic considerations for 

the trial lawyer. 

Usually a lengthier discussion of an area of law, 

offering examples and comparisons from current case 

law and opinions of the author. 

If you are aware of a published decision from any jurisdiction on a 

Brady issue which you believe would be of interest to our fellow trial 

lawyers, e-mail that information to Kirk W. McAllister at mcallister@ 

mcallisterlaw.com. 

Finally, any reference work such as this merely affords a starting 

point. It is the reader’s obligation and responsibility to research and 

Shepardize © all of his or her cases. Every effort has been made to 

include the most recent cases in this work, which heightens the 

possibility that some of them may have been depublished, overruled, 

had review granted, or otherwise rendered uncitable. For this reason, 

no warranty or representation is made that the cases which are 

included herein are currently valid. 

I’ll see you on the Frontline! ~ Kirk W. McAllister 

The Brady Book | 7

Table of Contents 

1. The Prosecutorial Duty of Disclosure...................................................... 8 

2. Materiality................................................................................................... 12 

3. Must the Information be Admissible to Qualify as Brady Material?.16 

4. When More is Less: Discovery Dumps.................................................. 18 

5. Sources of Brady Material......................................................................... 20 

6. Impeachment Evidence............................................................................ 21 

7. Specific Categories of Brady Material: Examples.................................. 24 

(1) Lead Investigator............................................................................... 24 

(2) Rough Notes...................................................................................... 24 

(3) Faulty Investigation........................................................................... 25 

(4) Interrogating Officer......................................................................... 26 

(5) Confessions........................................................................................ 26 

(6) Photographs, Videos......................................................................... 27 

(7) Bad Dog.............................................................................................. 27 

(8) Informers............................................................................................ 27 

(9) Prosecution Agreements.................................................................. 29 

(10) Wiretaps.............................................................................................. 30 

(11) Polygraph............................................................................................ 30 

(12) Prosecution Experts.......................................................................... 30 

(13) Laboratory Reports........................................................................... 31 

(14) Police Laboratory Misconduct........................................................ 31 

(15) Firearms.............................................................................................. 32 

(16) Gang Evidence................................................................................... 32 

(17) Fabrication of Evidence.................................................................... 33 

(18) Bad Faith Failure to Investigate Exculpatory Evidence............... 34 

(19) Suppressing Fourth Amendment Evidence.................................. 35 

(20) Medical Records................................................................................ 35 

(21) Psychological Testing........................................................................ 35 

(22) Psychiatric Records........................................................................... 36 

(23) Criminal History for Impeachment............................................... 37 

(24) Statements of Motive, Bias or Interest........................................... 37 

(25) Past False Reports............................................................................. 38 

(26) Coaching of Prosecution Witnesses.............................................. 38 

(27) Ensuring the Unavailability of Witnesses..................................... 39 

(28) Perjury................................................................................................ 39 

(29) Double Blind Perjury........................................................................ 41 

(30) Admission of Perjury........................................................................ 41 

8 | The Brady Book

(31) Eyewitnesses....................................................................................... 41 

(32) Eyewitness Identification................................................................. 42 

(33) Questioned Memory........................................................................ 43 

(34) Factual Impossibility......................................................................... 44 

(35) Evidence Inconsistent with the Prosecution’s Theory................. 44 

(36) Third Party Culpability.................................................................... 45 

(37) Duress Defense.................................................................................. 47 

(38) Similar Perpetrator Evidence.......................................................... 47 

(39) Other Investigations......................................................................... 48 

(40) Sexual Misconduct............................................................................ 48 

8. Prosecutor’s Knowledge............................................................................ 49 

(1) The Prosecutor................................................................................... 49 

(2) The Prosecution Team...................................................................... 49 

(3) Who is on The Team? Examples..................................................... 53 

9. “What Did They Know, and When Did They Know It?”.................... 59 

10. When Disclosure Must Be Made............................................................ 60 

11. Suppression of Brady Material................................................................. 63 

12. Brady Suppression Excuses Procedural Default................................... 66 

13. Prosecutorial Intent: Irrelevant?.............................................................. 67 

14. Flipping the Burden................................................................................... 70 

15. Seeking Known Brady Evidence.............................................................. 73 

16. Brady Versus Police Privacy..................................................................... 74 

17. Brady Analysis............................................................................................ 77 

(1) Post-Conviction Brady Analysis..................................................... 77 

(2) Pre-Conviction Brady Analysis....................................................... 77 

18. The Intersection of Brady and Trombetta.............................................. 80 

19. Brady and the Plea Bargaining Stage...................................................... 83 

20. Does a Guilty Plea Automatically Waive a Brady Claim?................... 85 

21. Brady Work Product.................................................................................. 88 

22. Brady in Civil Cases?................................................................................. 93 

23. Remedies..................................................................................................... 94 

24. Brady Violation as the Basis for a Civil Rights Action......................... 98 

25. Dropping the Dime.................................................................................102 

Table of Authorities........................................................................................109 


Brady v. Maryland Discovery 

Violation of Due Process afforded by the Fourteenth 

Amendment, United States Constitution. (Brady v. 

Maryland, 373 U.S. 83, 86-87, 83 S. Ct. 1194, 1196-1197, 

10 L. Ed. 2d 215, 218 (1963)) 

1. The Prosecutorial Duty of Disclosure 

• Due process requires the prosecution to divulge all evidence 

favorable to the accused and material either to guilt or punishment: 

“We now hold that the suppression by the prosecution of 

evidence favorable to an accused upon request violates due 

process where the evidence is material either to guilt or to 

punishment irrespective of the good faith or bad faith of the 

prosecution.” (Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 

1194, 1196-1197, 10 L. Ed. 2d 215, 218 (1963)) 

• “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. Our construction of that Clause will apply equally to 

the comparable clause in the Fourteenth Amendment applicable to 

trials in state courts.” (United States v. Agurs, 427 U.S. 97, 107, 96 S. 

Ct. 2392, 2399, 49 L. Ed. 2d 342, 352 (1976)) 

• “Evidence is ‘favorable’ if it either helps the defense or hurts 

the prosecution, as by impeaching any of its witnesses (citation 

omitted).” (In re Sassounian (1995) 9 Cal.4th 535, 543) 

• Withholding of Brady evidence constitutes constitutional error if 

it deprives the defendant of a fair trial. (Giglio v. United States, 405 

U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104, 109 (1972)) 

• “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. An inscription on 

the walls of the Department of Justice states the proposition 

candidly for the federal domain: ‘The United States wins its point 

whenever justice is done its citizens in the courts.’ A prosecution 

that withholds evidence on demand of an accused which, if made 


available, would tend to exculpate him or reduce the penalty helps 

shape a trial that bears heavily on the defendant. That casts the 

prosecutor in the role of an architect of a proceeding that does not 

comport with standards of justice, even though, as in the present 

case, his action is not ‘the result of guile,’ to use the words of the 

Court of Appeals. 226 Md., at 427, 174 A. 2d, at 169.” (Brady v. 

Maryland, 373 U.S. 83, 87-88, 83 S. Ct. 1194, 1197, 10 L. Ed. 2d 215, 

218-19 (1963)) 

• The more serious the case, the greater the degree of scrutiny: “The 

fact that Bower has been sentenced to the ultimate punishment 

strengthens the public’s interest in knowing whether the FBI’s files 

contain information that could corroborate his claim of innocence.” 

(Roth v. United States DOJ, 642 F.3d 1161, 1176 (D.C. Cir. 2011)) 

• It no longer makes a difference whether there was a request for the 

information, or its specificity if there was one. (Kyles v. Whitley, 514 

U.S. 419, 433, 115 S. Ct. 1555, 1565, 131 L. Ed. 2d 490, 505 (1995)) 

In a capital case, penalty phase mitigating evidence 

for a particular accused may fall outside the scope 

of recognized Brady discovery and therefore require 

that a specific production request be made of the 

prosecutor. (In re Steele (2004) 32 Cal.4th 682, 698-701) 

• The constitutional duty under Brady that requires prosecutors to 

disclose exculpatory evidence is independent of any statutory duty 

to provide discovery. Thus, evidence which is material under Brady 

must be disclosed, notwithstanding any failure of the defense to 

enforce its statutory right to discovery. (People v. Jordan (2003) 108 

Cal.App.4th 349, 359; Izazaga v. Superior Court (1991) 54 Cal.3d 

356, 378; Cal. Penal Code ß 1054(c)) 

Argue that suppression of exculpatory evidence 

also violates state due process safeguards. (e.g., Cal. 

Const. Art. I, §7(a) and §15 were held to be violated 

in Bridgeforth v. Superior Court (2013) 214 Cal.App.4th 

1074, 1087) 


• The state cannot satisfy its Brady obligation by making some 

evidence available and then claiming the rest would be cumulative: 

The prosecution is required to disclose “all material information 

casting a shadow on the witness’s credibility.” (United States v. 

Bernal-Obeso, 989 F.2d 331, 334 (9th Cir. 1993) (emphasis in 

original)) 

• When the suppressed evidence was both inculpatory and 

exculpatory, a Brady motion was granted where the “exculpatory 

character harmonized with the theory of the defense case.” (United 

States v. Triumph Capital Group, Inc., 544 F.3d 149, 164 (2d Cir. 

2008)) 

• If evidence does not tend to prove the defendant innocent, only less 

guilty, it does not qualify as Brady material. (Williams v. Ryan, 623 

F.3d 1258, 1265 (9th Cir. 2010)) 

• Brady imposes a duty to obtain and disclose certain information 

not directly related to the facts of the case: 

“…[I]n limited circumstances the prosecution’s Brady duty 

may require disclosure of exculpatory and impeachment 

information contained in materials that are not directly 

connected to the case. For example, particularly upon the 

request of the defense, the prosecution has the duty to seek out 

critical impeachment evidence in records that are ‘reasonably 

accessible’ to the prosecution but not to the defense. (People v. 

Little (1997) 59 Cal.App.4th 426, 433–434 [prosecution must 

investigate key prosecution witness’s criminal history and 

disclose felony convictions]; People v. Santos (1994) 30 Cal. 

App.4th 169, 178–179 [upon defense request, prosecution 

must disclose prosecution witnesses’ misdemeanor 

convictions]; People v. Hayes (1992) 3 Cal.App.4th 1238, 

1243, 1245 [upon defense request, prosecution must disclose 

prosecution witness’s criminal convictions, pending charges, 

probation status, acts of dishonesty, and prior false reports]; 

People v. Martinez (2002) 103 Cal.App.4th 1071, 1078; In re 

Pratt (1999) 69 Cal.App.4th 1294, 1317.)” (J.E. v. Superior 

Court (2014) 223 Cal.App.4th 1329, 1335-1336 (emphasis in 

original)) 


Upon a claim of privilege by the government, request 

a reported in camera review of the desired evidence. 

(Vela v. Superior Court (1989) 208 Cal.App.3d 141, 147, 

151: Pennsylvania v. Ritchie, 480 U.S. 39, 58-60, 107 S. 

Ct. 989, 1001-1002, 94 L. Ed. 2d 40, 58-59 (1987)) 

An in camera hearing, outside the presence of the 

defense, is an appropriate alternative to relying on the 

government’s representations when the issue is the 

prosecution’s duty to disclose possible Brady evidence. 

(Contreras v. Artus, 778 F.3d 97, 114 (2d Cir. 2015)) 

In camera review has been approved as a means 

of evaluating confidential documents such as 

Presentence Reports (United States v. Shafer, 608 F.3d 

1056, 1066 (8th Cir. 2010). In United States v. Garcia, 

562 F.3d 947, 953 (8th Cir. 2009) the court held that 

it was an abuse of discretion not to conduct an in 

camera review of the PSR of a coconspirator. (See also 

United States v. Alvarez, 358 F.3d 1194, 1207-1208 (9th 

Cir. 2004); United States v. Pena, 227 F.3d 23, 27 (2d Cir. 

2000)) 


2. Materiality 

• Evidence is material if its admission at trial would have created 

the reasonable probability of a different outcome, shown when the 

suppression undermines confidence in the trial’s outcome. (Kyles 

v. Whitley, 514 U.S. 419, 433-434, 115 S. Ct. 1555, 1566, 131 L. Ed. 

2d 490, 506 (1995); see also People v. Ochoa (1998) 19 Cal.4th 353, 

373)) 

• Prejudice is a component of “materiality.” 

“The term ‘material’ and ‘prejudicial’ are used interchangeably 

in Brady cases. Evidence is not ‘material’ unless it is 

‘prejudicial,’ and not ‘prejudicial’ unless it is ‘material’. Thus, 

for Brady purposes, the two terms have come to have the same 

meaning.” (Benn v. Lambert, 283 F.3d 1040, 1053, n.9 (9th Cir. 

2002)) 

• The requirement of materiality does not require demonstration 

by a preponderance that disclosure would have resulted in the 

defendant’s acquittal: the touchstone of materiality is a reasonable 

probability of a different result. (Kyles v. Whitley, 514 U.S. 419, 434, 

115 S. Ct. 1555, 1566, 131 L. Ed. 2d 490, 506 (1995)) 

• The materiality analysis evaluating the force of the withheld 

evidence examines its cumulative effect. (Barker v. Fleming, 423 

F.3d 1085, 1099 (9th Cir. 2005); Kyles v. Whitley, 514 U.S. 419, 436- 

437, 115 S. Ct. 1555, 1567, 131 L. Ed. 2d 490, 507-508 (1995)) 

• “That the information withheld may seem inculpatory on its face in 

no way eliminates or diminishes the government’s duty to disclose 

evidence of a flawed police investigation.” (United States v. Howell, 

231 F.3d 615, 625 (9th Cir. 2000) 

• Analysis for constitutional error is made in the context of the entire 

record: thus, failure to disclose an exculpatory eyewitness when 

there was only one other eyewitness would be evaluated differently 

than failure to disclose if there were fifty eyewitnesses. (United 

States v. Agurs, 427 U.S. 97, 112, 96 S. Ct. 2392, 2402, 49 L. Ed. 2d 

342, 355, n.21 (1976)) 

• “[I]f the verdict is already of questionable validity, additional 

evidence of relatively minor importance might be sufficient to 


create a reasonable doubt.” (United States v. Agurs, 427 U.S. 97, 113, 

96 S. Ct. 2392, 2402, 49 L. Ed. 2d 342, 355 (1976)) 

• Materiality is determined based on the crimes charged, not on 

crimes that might have been charged. (Comstock v. Humphries, 786 

F.3d 701, 712 (9th Cir. 2015); United States v. Mejia-Mesa, 153 F.3d 

925, 927-928 (9th Cir. 1998)); “This Court has never held that the 

right to a jury trial is satisfied when an appellate court retries a case 

on appeal under different instructions and on a different theory 

than was presented to the jury.” (McCormick v. United States, 500 

U.S. 257, 270, 111 S. Ct. 1807, 1815, 114 L. Ed. 2d 307, 324, n.8 

(1991)) 

• The Brady obligation extends to non-testifying witnesses. (United 

States v. Jackson, 345 F.3d 59, 70 (2d Cir. 2003)) 

• The mere fact that a prosecution witness has a prior criminal 

record, even combined with other impeachment evidence which 

the defendant introduces, does not render otherwise critical 

impeachment evidence cumulative. (Benn v. Lambert, 283 F.3d 

1040, 1055 (9th Cir. 2002)) 

• “Thus, undisclosed impeachment evidence can be immaterial 

because of its cumulative nature only if the witness was already 

impeached at trial by the same kind of evidence.” (United States v. 

Cuffie, 80 F.3d 514, 518 (D.C. Cir. 1996)) 

• The California Supreme Court has constructed its own 

interpretation of materiality, holding that the Brady information 

virtually must relate to the only evidence linking the defendant to 

the crime. (People v. Salazar (2005) 35 Cal.4th 1031, 1050-1051) 

m Examples: 

(1) In a murder prosecution for the death of an 11 month old child 

in which the timeline was critical, where the district attorney 

possessed information regarding the forensic pathologist’s flipflopping 

opinions in three other infant death cases (including 

one in which his changed timeline resulted in the exoneration 

of one person previously convicted and the consequent arrest 

of another), the California Supreme Court found that the 

undisclosed evidence was not material, even though the two 

detectives in the reinvestigation of the previous changed 


timeline case were the same detectives in the case at bar. 

(People v. Salazar (2005) 35 Cal.4th 1031, 1052) 

(2) Prosecutors’ memoranda complaining about discrepancies 

between what a pathologist observed and recorded during 

other autopsies and what he later testified to in court were 

found by the California Supreme Court not to be material 

since they would have only portrayed the doctor as “a careless 

and ill-prepared witness” but did not go to the specific issue of 

his erroneous theoretical explanation regarding blood clotting. 

(People v. Seaton (2001) 26 Cal.4th 598, 648-649) 

This narrow view of materiality ignores the wellestablished 

rules that an expert may be crossexamined 

more rigorously and more extensively 

than a lay witness, and that such examination is not 

confined to the scope of the direct examination. (Cal. 

Evid. Code §721(a): 1 Jefferson, California Evidence 

Benchbook (4th ed. 2017) § 30.75, pp. 30-54.1; People 

v. Wilson (2005) 36 Cal.4th 309, 358; People v. Hendricks 

(1988) 44 Cal.3d 635, 642; People v. Nye (1969) 71 

Cal.2d 356, 374-375) 

An expert may be cross-examined on prior testimony 

given in other trials. (CEB, California Trial Objections 

(2017) §20.25, at 245) 

The undisclosed evidence was squarely within the 

scope of the defendant’s cross-examination, since 

the defendant was entitled to “take his best shot” 

before the jury by highlighting deficiencies in the 

investigation in order to discredit the prosecution’s 

case. (People v. Cooper (1991) 53 Cal.3d 771, 811-812) 

• Some evidence of bias does not diminish the value of other 

evidence of bias. (Napue v. Illinois, 360 U.S. 264, 270, 79 S. Ct. 1173, 

1177, 3 L. Ed. 2d 1217, 1221 (1959); Horton v. Mayle, 408 F.3d 570, 

579 (9th Cir. 2005)) 

• The fact that disclosure could have resulted in an earlier 


termination of the action is not considered prejudice: 

“The Court notes in particular the Second Circuit’s holdings 

that disclosure of Brady material is not untimely if a criminal 

defendant is provided the material in time to use it at the time 

of trial or plea; the fact that suppression of Brady material 

could prevent a defendant from securing an earlier favorable 

termination of his or her case is not considered as a potential 

source of ‘prejudice’ within the meaning of the Brady rule.” 

(Ambrose v. City of New York, 623 F.Supp.2d 454, 472 (S.D.N.Y. 

2009)) 

A useful measure of the materiality of the withheld 

evidence is the emphasis the prosecutor placed on the 

relevant witness or evidence: “The likely damage is best 

understood by taking the word of the prosecutor…” 

(Kyles v. Whitley, 514 U.S. 419, 444, 115 S. Ct. 1555, 1571, 

131 L. Ed. 2d 490, 512 (1995); Barker v. Fleming, 423 F.3d 

1085, 1101 (9th Cir. 2005)) 

A prosecutorial inference may establish materiality. 

For example, when a revolver was formally produced 

at trial, the prosecution necessarily was inviting the 

conclusion that it was the weapon used in the attack. 

The prosecution thus established the importance 

of the Brady material (which suggested that it was 

not the weapon). “Once produced it became not 

only appropriate but imperative that any additional 

evidence concerning the gun be made available either 

to substantiate or to refute the suggested inference.” 

(Barbee v. Warden, Maryland Penitentiary, 331 F.2d 842, 

845 (4th Cir. 1964)) 

The government’s furtiveness in not disclosing 

potential Brady evidence amounts to proof of its 

materiality: “The prosecutor’s own conduct in keeping 

the deal secret underscores the deal’s importance.” 

(Silva v. Brown, 416 F.3d 980, 990 (9th Cir. 2005)) 


3. Must the Information be Admissible to Qualify as 

Brady Material? 

• The law is inconsistent on the question whether evidence must be 

admissible to qualify as Brady material (Paradis v. Arave, 240 F.3d 

1169, 1178-1179 (9th Cir. 2001)) 

• To qualify under Brady the material can be either admissible or 

information which can lead to admissible evidence. “…[W]ithheld 

information is material under Brady only if it would have 

been admissible at trial or would have led directly to admissible 

evidence.” (Gumm v. Mitchell, 775 F.3d 345, 363 (6th Cir. 2014)) 

• “…[I]nadmissible material nonetheless could be ‘material under 

Brady if it would “lead directly” to admissible evidence.’ Wogenstahl 

v. Mitchell, 668 F.3d 307, 325 n.3 (6th Cir. 2012) (quoting Sawyer 

v. Hofbauer, 299 F.3d 605, 614 (6th Cir. 2002)); see also Ellsworth 

v. Warden, 333 F.3d 1, 5 (1st Cir. 2003); 6 Wayne R. Lafave et al., 

Criminal Procedure § 24.3(b) (3d ed. 2007) (‘Most courts now 

view admissibility as a critical end-product, but note that the duty 

to disclose could encompass inadmissible information where that 

information appears likely to lead the defense to the discovery of 

admissible evidence.’); Brian D. Ginsberg, Always Be Disclosing: The 

Prosecutor’s Constitutional Duty to Divulge Inadmissible Evidence, 

110 West Virginia Law Review 611, 626-634 (2008) (reviewing 

Brady and post-Brady Supreme Court cases and concluding that 

‘the Court’s opinions in its Brady line of cases contemplate that 

constitutional criminal discovery encompasses inadmissible 

evidence.’).” (Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d 450, 

465-466 (6th Cir. 2015)) 

• A viable Brady claim is made if the nondisclosed evidence, though 

inadmissible, would have led to material admissible evidence. 

(United States v. Johnson, 592 F.3d 164, 171 (D.C. Cir. 2010)) 

• Discovery need not be limited to that which is admissible: the 

defendant is entitled to discover all relevant and material evidence 

in the possession of the prosecutor which would assist him in the 

preparation and presentation of his defense. (People v. Williams 

(1979) 93 Cal.App.3d 40, 63-64) 

• Some jurisdictions hold that the Brady disclosure does not apply 


to inadmissible evidence. (Hoke v. Netherland, 92 F.3d 1350, 1356, 

n.3 (4th Cir. 1996)) 

• Contrary to the majority rule, the Seventh Circuit holds that the 

material must be admissible to be a violation of Brady. (United 

States v. Morales, 746 F.3d 310, 314 (7th Cir. 2014)) 

• Nondisclosure of Brady evidence is not excused on the ground 

it is hearsay when “admissible for the nonhearsay purpose of 

determining what evidence the defense would have uncovered but 

for the prosecution’s misconduct…” (In re Bacigalupo (2012) 55 

Cal.4th 312, 338-339) 

If evidence is not admissible, argue that it can be used 

to impeach government witnesses. (Paradis v. Arave, 

240 F.3d 1169, 1179-1180 (9th Cir. 2001)) 

Evidence does not have to be independently 

admissible to be material as Brady evidence: evidence 

is material if it might have been used to impeach 

a government witness, since if disclosed and used 

effectively it could make the difference between 

conviction and acquittal. (Carriger v. Stewart, 132 F.3d 

463, 481 (9th Cir. 1997)) 


4. When More is Less: Discovery Dumps 

• The prosecution does not discharge its Brady duty by a “discovery 

dump:” 

“The Government did not fulfill its obligation by providing 

mountains of documents to defense counsel who were left 

unguided as to which documents would be proven falsified or 

which of some fifteen burglaries would be demonstrated to be 

staged.” (United States v. Bortnovsky, 820 F.2d 572, 575 (2d Cir. 

1987)) 

• “We do not hold that the use of a voluminous open file can never 

violate Brady. For instance, evidence that the government ‘padded’ 

an open file with pointless or superfluous information to frustrate 

a defendant’s review of the file might raise serious Brady issues. 

Creating a voluminous file that is unduly onerous to access might 

raise similar concerns. And it should go without saying that the 

government may not hide Brady material of which it is actually 

aware in a huge open file in the hope that the defendant will never 

find it. These scenarios would indicate that the government was 

acting in bad faith in performing its obligations under Brady.” 

(United States v. Skilling, 554 F.3d 529, 577 (5th Cir. 2009), vacated 

on other grounds, 561 U.S 358)) 

• “The government cannot meet its Brady obligations by providing 

Ms. Hsia with access to 600,000 documents and then claiming that 

she should have been able to find the exculpatory information in 

the haystack.” (United States v. Hsia, 24 F.Supp.2d 14, 29 (D.D.C. 

1998), reversed on other grounds, 176 F.3d 517) 

• While “discovery dumping” smacks of sharp practice, a new hurdle 

for the defense of proving prosecutorial bad faith is not thereby 

created. For a case which failed to keep these concepts separate, see 

United States v. Warshak, 631 F.3d 266, 297-298 (6th Cir. 2010) 

• Some courts have praised prosecutors for handing over more than 

required. (See United States v. Jordan, 316 F.3d 1215, 1253 (11th Cir. 

2003)) 

• Courts have held that the prosecution does not have a duty to 

“fastidiously sift” through millions of pages of computer databases 


for Brady material of which it is unaware. (United States v. Gray, 648 

F.3d 562, 567 (7th Cir. 2011)) 

Announcing your defense or pinpointing your 

demand for Brady information will foreclose the 

prosecutorial response that this is just a blanket 

demand and that they cannot respond to a defense 

which is unknown to them. (See United States v. 

Jordan, 316 F.3d 1215, 1254 (11th Cir. 2003)) However, 

if the demand is too specific, the prosecution may 

argue that the defense is already in possession of the 

information. (DiSimone v. Phillips, 461 F.3d 181, 197 (2d 

Cir. 2006)) 

• The proposed ABA Criminal Justice Standard holds: 

“Before trial of a criminal case, a prosecutor should make 

timely disclosure to the defense of information described 

in (a) above that is known to the prosecutor, regardless of 

whether the prosecutor believes it is likely to change the 

result of the proceeding, unless relieved of this responsibility 

by a court’s protective order. (Regarding discovery prior to a 

guilty plea, see Standard 3-5.6(f) below.) A prosecutor should 

not intentionally attempt to obscure information disclosed 

pursuant to this standard by including it without identification 

within a larger volume of materials.)” (ABA Standards for 

Criminal Justice: Prosecution Function, Proposed Standard 

3-5.4(c)) 


5. Sources of Brady Material 

• There is no limitation on the sources of information which may be 

considered Brady material. 

m “Echoing the district court, the government maintains that 

the contents of Melnikoff ’s investigative file, including the 

Johnston Report and the other peer evaluations of his work, 

were not favorable to Olsen because the WSP decisionmaker 

had yet to make any findings. That proposition, for which the 

government offers no support, is at odds with the case law in 

this circuit, which repeatedly has held materials from ongoing 

investigations to be favorable under Brady. See, e.g., Kohring, 

637 F.3d at 903, 905 (e-mails, memoranda, police reports, 

handwritten notes, and file regarding ongoing investigation 

into government witness); United States v. Price, 566 F.3d 900, 

903 (9th Cir. 2009) (information respecting witness’s arrests, 

not convictions). Indeed, information bearing adversely on the 

credibility of a prosecution witness is favorable under Brady 

regardless of whether it was part of any investigation at all. See, 

e.g., Gonzalez, 667 F.3d at 976, 981 (reports prepared by prison 

psychologists undermining credibility of government witness); 

United States v. Alvarez, 358 F.3d 1194, 1206-07 (9th Cir. 2004) 

(exculpatory and impeachment material from probation 

officer’s files). The fact that the materials at issue here were 

generated because of an internal investigation is irrelevant.” 

(United States v. Olsen, 704 F.3d 1172, 1182 (9th Cir. 2013)) 

• Departmental assessments of its officers as witnesses may constitute 

Brady material when those evaluations relate to credibility. (People 

v. Garcia (1993) 17 Cal.App.4th 1169, 1180) 

• The police agency may maintain a “Brady list” for the purpose 

of informing the District Attorney of officers with impeachment 

issues. (See California Attorney General’s Opinion 12-401, which 

holds that the California Highway Patrol may lawfully release to 

a District Attorney’s Office Brady list information, including the 

names of officers against whom findings of dishonesty, moral 

turpitude, or bias have been sustained, and the dates of the earliest 

such conduct, without violating Cal. Penal Code §832.7(a), which 


provides that peace officer personnel records are confidential and 

may not be disclosed without a court order.) (98 Ops.Cal.Atty.Gen. 

54 (2015)) 


6. Impeachment Evidence 

• “Bias is a term used in the ‘common law of evidence’ to describe 

the relationship between a party and a witness which might lead 

the witness to slant, unconsciously or otherwise, his testimony in 

favor of or against a party. Bias may be induced by a witness’ like, 

dislike, or fear of a party, or by the witness’ self-interest. Proof of 

bias is almost always relevant because the jury, as finder of fact and 

weigher of credibility, has historically been entitled to assess all 

evidence which might bear on the accuracy and truth of a witness’ 

testimony. The ‘common law of evidence’ allowed the showing of 

bias by extrinsic evidence, while requiring the cross-examiner to 

‘take the answer of the witness’ with respect to less favored forms of 

impeachment. See generally McCormick on Evidence, supra, § 40, 

at 89; Hale, Bias as Affecting Credibility, 1 Hastings L. J. 1 (1949).” 

(United States v. Abel, 469 U.S. 45, 52, 105 S. Ct. 465, 469, 83 L. Ed. 

2d 450, 459 (1984)) 

• “Moral turpitude” has been defined as “conduct that is contrary 

to justice, honesty, or morality” (Black’s Law Dictionary (10th 

ed. 2014) p. 1163, col. 1) and a “readiness to do evil.” (People v. 

Contreras (2013) 58 Cal.4th 123, 157, n.24) 

• The Due Process clause of the Fifth Amendment requires disclosure 

of favorable impeachment evidence. (United States v. McLean, 715 

F.3d 129, 142 (4th Cir. 2013)) 

• Evidence affecting the credibility of a government witness has been 

held to be material under the Brady doctrine. (Giglio v. United 

States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104, 109 

(1972); United States v. Butler, 567 F.2d 885, 890 (9th Cir. 1978)) 

• Evidence impeaching a government witness may not be material 

if the government’s other evidence is strong enough to sustain 

confidence in the verdict. (Smith v. Cain, 565 U.S. 73, 76, 132 S. Ct. 

627, 630, 181 L. Ed. 2d 571, 574 (2012)) 

• The prosecution must disclose to the defense an agreement with a 

witness that would motivate the witness to testify and which could 

affect the outcome of the trial. (Giglio v. United States, 405 U.S. 150, 

154-155, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104, 109 (1972); Williams v. 

Woodford, 306 F.3d 665, 695 (9th Cir. 2002)) 


• “The defendant also has the right to discover evidence by which he 

may rigorously cross-examine and impeach the witnesses against 

him.” (People v. Broome (1988) 201 Cal.App.3d 1479, 1488) 

• The Brady rule includes all information which could impeach 

prosecution witnesses. (United States v. Bagley, 473 U.S. 667, 675- 

676, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481, 490 (1985)) 

• Impeachment evidence is “evidence favorable to the accused” 

where, if disclosed and used effectively, it may make the difference 

between conviction and acquittal. (United States v. Bagley, 473 U.S. 

667, 676, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481, 490 (1985)) 

• Examples: 

m Failure to disclose sentencing inducements of a testifying 

accomplice constituted Brady/Giglio error. (United States v. 

Gerard, 491 F.2d 1300, 1304 (9th Cir. 1974)) 

m When the state relies on the testimony of a witness known to 

be a career criminal, it is the state’s obligation to turn over all 

information bearing on the witness’ credibility. (Carriger v. 

Stewart, 132 F.3d 463, 480 (9th Cir. 1997)) 

m The fact that a witness is on probation may be used to show 

potential bias or prejudice based on concern of jeopardy to the 

witness’ probationary status. (People v. Espinoza (1977) 73 Cal. 

App.3d 287, 291; Davis v. Alaska, 415 U.S. 308, 318-320, 94 S. 

Ct. 1105, 1111, 39 L. Ed. 2d 347, 355-356 (1974)) 

m Discovery of a witness’ probationary status must be provided 

whether the witness is within the jurisdiction, for even if the 

prosecutor has no actual influence over the probationary 

status, it is the witness’ subjective expectations which are 

determinative for the purposes of impeachment. (Millaud v. 

Superior Court (1986) 182 Cal.App.3d 471, 476-477) 

• A prior inconsistent statement of a government witness falls within 

the disclosure requirements since Brady encompasses impeachment 

evidence as well as evidence favorable to the defendant on the issue 

of guilt. (United States v. Martino, 648 F.2d 367, 384 (5th Cir. 1981) 

(vacated in part on other grounds, 650 F.2d 651)) 

• The pendency of criminal charges is material to a witness’ 

motivation in testifying even where no express promises of leniency 


or immunity have been made. (People v. Coyer (1983) 142 Cal. 

App.3d 839, 842) 

• The accused was entitled to evidence that the officer was suspended 

for using drugs. (United States v. Garrett, 542 F.2d 23, 27 (6th Cir. 

1976)) 

• Evidence of an undisclosed deal with a witness was material where 

the witness’ testimony regarding the defendant’s confession was 

the centerpiece of the prosecution case and almost all the other 

evidence was circumstantial. (Horton v. Mayle, 408 F.3d 570, 579 

(9th Cir. 2005)) 

• It was error not to disclose an informal promise that a witness 

would not be prosecuted and to withhold an email asking the 

special agent to keep an eye out for a job for her in the FBI, 

although it was held in this case that no prejudice resulted. (United 

States v. Mazzarella, 784 F.3d 532, 538 (9th Cir. 2015)) 

• Evidence that a testifying informer had broken into an evidence 

room and stolen drugs, had stolen money during drug busts and 

then lied to the police about it, had smuggled guns into a prison 

so he could tell prison officials about the presence of the weapons 

and get his sentence reduced, and the fact that he continually 

used drugs while working as an informer all constituted material 

impeachment evidence for Brady purposes. (Benn v. Lambert, 283 

F.3d 1040, 1054-1055 (9th Cir. 2002)) 

• The evidence need not be criminal in nature: California Highway 

Patrol’s action in ordering its officer not testify as an auto 

reconstruction expert until he received additional education and 

the independent review by the District Attorney’s Office of his 

cases which showed a significant number of errors both constituted 

Brady material which should have been disclosed. (People v. Garcia 

(1993) 17 Cal.App.4th 1169, 1180) 


7. Specific Categories of Brady Material: Examples 

1) Lead Investigator 

• A Brady claim was upheld where the lead government agent was 

investigated for false statements in his job application, for cocaine 

distribution and for assisting an inmate-informer escape from 

federal custody. (United States v. Espinosa-Hernandez, 918 F.2d 911, 

913 (11th Cir. 1990)) 

• Disclosure of impeachment evidence relating to police officers is 

required by Brady. (People v. Gaines (2009) 46 Cal.4th 172, 184) 

2) Rough Notes 

• Rough notes may constitute Brady material. (United States v. 

Ramos, 27 F.3d 65, 68 (3d Cir. 1994)) 

• Failure to provide handwritten notes of police interviews 

constituted Brady error, but a new trial was denied for other 

reasons. (United States v. Certified Envtl. Servs., 753 F.3d 72, 95 (2d 

Cir. 2014)) 

• “Contrary to the government’s contention in the district court, 

‘[i]t seems too plain for argument that rough notes from any 

witness interview could prove to be Brady material.’ United States 

v. Harrison, 173 U.S. App. D.C. 260, 524 F.2d 421, 427 (D.C. Cir. 

1975). As we have previously explained, the ‘possible importance 

of the rough notes’ for the purpose of providing leads or of 

impeaching a witness for discrepancies between the notes and the 

witness’ testimony ‘is not diminished in cases where’ the notes 

form the basis of a final report that the prosecution turns over 

to the defense. Id. Nor is the prosecutor relieved of her Brady 

obligation if the notes are kept by the agent and never reviewed by 

the prosecutor. As the Court held in Kyles v. Whitley, the Brady rule 

includes evidence ‘known only to police investigators and not to 

the prosecutor.’ 514 U.S. at 438. Hence, to comply with Brady, ‘the 

individual prosecutor has a duty to learn of any favorable evidence 

known to others acting on the government’s behalf in the case, 

including the police.’ In re Sealed Case, 185 F.3d at 892 (quoting 

Kyles, 514 U.S. at 437)” (United States v. Andrews, 532 F.3d 900, 906 

(D.C. Cir. 2008)) 


• This conviction was reversed because Brady information not 

included in the FBI 302 report was contained in the undisclosed 

rough notes of the FBI agent. (United States v. Pelullo, 105 F.3d 117, 

123 (3d Cir. 1997)) 

• Officers’ notes that would have impeached the government’s 

eyewitness’ identification constituted Brady evidence. (Carrillo v. 

County of Los Angeles, 798 F.3d 1210, 1215, 1224-1225 (9th Cir. 

2015)) 

• Failure to disclose officers’ handwritten notes which documented 

an earlier attempt to murder the decedent by persons other than 

this accused constituted Brady error. (Carrillo v. County of Los 

Angeles, 798 F.3d 1210, 1226 (9th Cir. 2015)) 

• Handwritten notes by an officer made contemporaneously with 

the viewing of a photo lineup undercut the certainty of the 

identification and thus were Brady material. (Carrillo v. County of 

Los Angeles, 798 F.3d 1210, 1215 (9th Cir. 2015)) 

• A prosecutor’s notes recording contrary medical opinions of 

the pathologist who performed the autopsies (as recounted in a 

meeting with the detective who attended the autopsies) constituted 

Brady material. (Paradis v. Arave, 240 F.3d 1169, 1176-1177 (9th 

Cir. 2001)) 

3) Faulty Investigation 

• “A common trial tactic of defense lawyers is to discredit the caliber 

of the investigation or the decision to charge the defendant, and 

we may consider such use in assessing a possible Brady violation.” 

(Bowen v. Maynard, 799 F.2d 593, 613 (10th Cir. 1986)) 

• “That the information withheld may seem inculpatory on its face in 

no way eliminates or diminishes the government’s duty to disclose 

evidence of a flawed police investigation.” (United States v. Howell, 

231 F.3d 615, 625 (9th Cir. 2000) 

• “The trial court’s refusal to sanction the prosecution did not leave 

the defendant helpless. As the court stated, he was entitled to take 

his ‘best shot’ before the jury, and present evidence regarding 

deficiencies in the investigation to try to discredit the case against 

him.” (People v. Cooper (1991) 53 Cal.3d 771, 811-812) 


4) Interrogating Officer 

• The interrogating officer’s misconduct as an officer, his lying to his 

supervisors and under oath, and his supervisor’s estimation that he 

was dishonest constitute Brady material which should have been 

disclosed. (Milke v. Ryan, 711 F.3d 998, 1012 (9th Cir. 2013)) 

5) Confessions 

• It was Brady error to fail to disclose, among other things, that the 

officer who elicited a confession previously had confessions thrown 

out because he lied under oath. (Milke v. Ryan, 711 F.3d 998, 1019 

(9th Cir. 2013)) 

• “The failure to disclose evidence of improper and coercive 

interrogation of a witness preceding a statement that is beneficial 

to the prosecution engenders significant questions about the 

credibility of the beneficial statement. A well-trained police 

officer would be expected to know that such conduct would be 

detrimental to the prosecution’s case.” (In re Sodersten (2007) 146 

Cal.App.4th 1163, 1224) 

• “No arrest, no matter how lawful or objectively reasonable, gives 

an arresting officer or his fellow officers license to deliberately 

manufacture false evidence against an arrestee. To hold that police 

officers, having lawfully arrested a suspect, are then free to fabricate 

false confessions at will, would make a mockery of the notion 

that Americans enjoy the protection of due process of the law 

and fundamental justice. Like a prosecutor’s knowing use of false 

evidence to obtain a tainted conviction, a police officer’s fabrication 

and forwarding to prosecutors of known false evidence works an 

unacceptable ‘corruption of the truth-seeking function of the trial 

process. United States v. Agurs, 427 U.S. 97, 104, 49 L. Ed. 2d 342, 

96 S. Ct. 2392 (1976); Giglio v. United States, 405 U.S. 150, 153, 31 L. 

Ed. 2d 104, 92 S. Ct. 763 (1972); Mooney v. Holohan, 294 U.S. 103, 

112, 79 L. Ed. 791, 55 S. Ct. 340 (1935).” (Ricciuti v. New York City 

Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997)) 

• “If, under Devereaux, [Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 

2001)] an interviewer who uses coercive interviewing techniques 

that are known to yield false evidence commits a constitutional 

violation, then an interviewer who deliberately mischaracterizes 


witness statements in her investigative report also commits a 

constitutional violation. Similarly, an investigator who purposefully 

reports that she has interviewed witnesses, when she has actually 

only attempted to make contact with them, deliberately fabricates 

evidence.” (Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 

1111 (9th Cir. 2009)) 

6) Photographs, Videos 

• The defense needed to prove that the defendant wore dreadlocks 

at the time of the carjacking. Brady error was found when the 

prosecution relied on a photograph of the dreadlock-free defendant 

that it represented was taken a month after the crime, when in fact 

if was taken more than a year earlier. (United States v. Moore, 709 

F.3d 287, 294 (4th Cir. 2013)) 

• The prosecution’s nondisclosure of a video recording of a medical 

examination by the Sexual Assault Response Team (SART) 

constituted prejudicial Brady error. (People v. Uribe (2008) 162 Cal. 

App.4th 1457, 1482) 

7) Bad Dog 

• Failure to disclose a police dog’s prior mistaken scent identification, 

including the prosecution’s stipulation in another case to the dog’s 

misidentification on two separate occasions, constituted Brady error. 

(Aguilar v. Woodford, 725 F.3d 970, 980-981, 985 (9th Cir. 2013)) 

8) Informers 

• “This Court has long recognized the ‘serious questions of 

credibility’ informers pose. (Citation omitted)” (Banks v. Dretke, 

540 U.S. 668, 701, 124 S. Ct. 1256, 1278, 157 L. Ed. 2d 1166, 1196 

(2004)) 

• In a controlled buy case with no physical evidence connecting the 

defendant, the informer’s prior “deactivation” as an informer, her 

“freelance” drug dealing and her misidentification of the defendant 

constituted material evidence which should have been disclosed. 

(United States v. Torres, 569 F.3d 1277, 1283-1284 (10th Cir. 2009)) 

• Information that an informer had been unreliable in the past 

constitutes material impeachment evidence for Brady purposes. 

(Benn v. Lambert, 283 F.3d 1040, 1055 (9th Cir. 2002)) 


• Evidence of a lie is direct proof adversely affecting the informer’s 

credibility, which is much more damning than general evidence 

of untrustworthiness or circumstantial reasons why the informer 

might alter the truth. (Benn v. Lambert, 283 F.3d 1040, 1057 (9th 

Cir. 2002)) 

• If a person serves as an agent of the police and becomes a material 

witness on the issue of guilt, the police must undertake reasonable 

efforts to obtain information by which the defense may locate the 

informer. The defendant is denied a fair trial when the police fail 

to undertake reasonable efforts to obtain information useful for 

locating the material witness informer. (People v. Goliday (1973) 8 

Cal.3d 771, 781) 

• An informant lying to the government about his own prior record 

is relevant to credibility. (United States v. Bernal-Obeso, 989 F.2d 

331, 335-336 (9th Cir. 1993)) 

• The government has a duty to disclose evidence of any 

understanding or agreement as to future prosecution of a critical 

government witness, particularly when that witness provides the 

key testimony against the accused; failure to do so may require 

a reversal. (Haber v. Wainwright, 756 F.2d 1520, 1523 (11th Cir. 

1985)) 

• The fact that a witness’ cooperation is not guaranteed through a 

promise or a binding contract but is expressly contingent upon 

the government’s satisfaction with the end result serves only to 

strengthen any incentive to testify falsely in order to secure a 

conviction. (United States v. Bagley, 473 U.S. 667, 683, 105 S. Ct. 

3375, 3384, 87 L. Ed. 2d 481, 495 (1985)) 

• The undisclosed status of a key prosecution witness as a paid 

informer was relevant and material. (Banks v. Dretke, 540 U.S. 668, 

698, 124 S. Ct. 1256, 1276, 157 L. Ed. 2d 1166, 1194 (2004); Giglio v. 

United States, 405 U.S. 150, 154-155, 92 S. Ct. 763, 766, 31 L. Ed. 2d 

104, 109 (1972)) 

• When a crucial witness lied regarding his background as a drug 

informer, the government’s failure to disclose the information 

constituted Brady error. (United States v. Shaffer, 789 F.2d 682, 689 

(9th Cir. 1986)) 


9) Prosecution Agreements 

• “It is well established that an express agreement between the 

prosecution and a witness is possible impeachment material that 

must be turned over under Brady. [citation omitted] The existence 

of a less formal, unwritten or tacit agreement is also subject to 

Brady’s disclosure mandate (See, e.g., Wisehart v. Davis, 408 F.3d 

321, 323-324 (7th Cir. 2005).” (Bell v. Bell, 512 F.3d 223, 233 (6th 

Cir. 2008)) 

• “Finally, we note that rather than weakening the significance 

for credibility purposes of an agreement of favorable treatment, 

tentativeness may increase its relevancy. This is because a 

promise to recommend leniency (without assurance of it) may be 

interpreted by the promisee as contingent upon the quality of the 

evidence produced -- the more uncertain the agreement, the greater 

the incentive to make the testimony pleasing to the promisor.” 

(Boone v. Paderick, 541 F.2d 447, 451 (4th Cir. 1976)) 

• “Brady requires disclosure of tacit agreements between the 

prosecutor and a witness. A deal is a deal – explicit or tacit. There is 

no logic that supports distinguishing between the two.” (Douglas v. 

Workman, 560 F.3d 1156, 1186 (10th Cir. 2009)) 

• When the attorney for an aspiring cooperator in a murder case 

informed the District Attorney that he believed that his client 

was insane or at least not competent, the prosecutor nevertheless 

entered into an agreement, a secret condition of which was that 

the attorney would refrain from having his client psychiatrically 

evaluated until after he testified, in order to safeguard his 

credibility. Prejudicial Brady error was found, compelling a retrial. 

(Shelton v. Marshall, 796 F.3d 1075, 1086-1089 (9th Cir. 2015)) 

• Failure to disclose evidence that a witness had negotiated himself a 

better deal without his attorney in exchange for testimony, coupled 

with nondisclosure of his prior role as an informer, was Brady error. 

(Maxwell v. Roe, 628 F.3d 486, 509-512 (9th Cir. 2010)) 

• That a plea agreement was entered into after trial is not evidence 

that such agreement was secretly reached before trial. (United States 

v. Molina, 75 F.3d 600, 602 (10th Cir. 1996)) 


10) Wiretaps 

• Failure to disclose a wiretap application which indicated that the 

drugs belonged to someone other than the defendant was held to be 

a Brady violation. (United States v. Johnson, 592 F.3d 164, 172 (D.C. 

Cir. 2010)) 

11) Polygraph 

• “Impeachment evidence includes the results of a polygraph test.” 

(United States v. Lindell, 881 F.2d 1313, 1326 (5th Cir. 1989)) 

• It was not reasonably likely that disclosure of polygraph results - 

which were inadmissible under state law - would have resulted in a 

different outcome at trial, and thus no Brady violation was found. 

(Wood v. Bartholomew, 516 U.S. 1, 8, 116 S. Ct. 7, 10, 133 L. Ed. 2d 

1, 7 (1995); Beaman v. Freesmeyer, 776 F.3d 500, 507-508 (7th Cir. 

2015)) 

• Suppression of oral reports of the polygraphist which contradicted 

his written reports constituted Brady error where the oral reports 

would have been used to show that a malleable identification 

witness, whose accounts were kaleidoscopic, would have testified 

to whatever version that he was told the polygraph test “verified.” 

(This is the Ruben “Hurricane” Carter case). (Carter v. Rafferty, 826 

F.2d 1299, 1308 (3d Cir. 1987), cert. denied, 484 U.S. 1011 (1988)) 

12) Prosecution Experts 

• It was error to deny the defense motion to discover the identities 

of experts who were shown the bloody palm print of the murderer 

by the prosecution during trial, when those experts opined that 

the maker could not be identified (contrary to the one expert the 

prosecution did call, who said it was the defendant’s print). (People 

v. Johnson (1974) 38 Cal.App.3d 228, 235-237) 

• “A defendant furnished with such inculpatory evidence by the state 

is not required to assume that the state has concealed material 

information and has thereby obligated him to ascertain the Brady 

material on his own. In the case before us, moreover, the state not 

only failed to disclose the crucial information about the accidental 

nature of the fire, but it actually misled the defense by disclosing 

a part of the experts’ findings that, read alone, would lead to a 


conclusion directly opposite to the one they reached.” (Benn v. 

Lambert, 283 F.3d 1040, 1062 (9th Cir. 2002)) 

Be prepared for the prosecution argument that 

the claimed Brady evidence merely represents the 

prosecutor’s assessment of the persuasiveness or 

weakness of the witness, which does not warrant 

disclosure. (People v. Seaton (2001) 26 Cal.4th 598, 649) 

13) Laboratory Reports 

• A Brady violation was found when favorable crime laboratory 

reports were not provided to the defense. The prosecutor has a 

nondelegable affirmative duty to inquire if the laboratory’s file 

contains exculpatory material. (In re Brown (1998) 17 Cal.4th 873, 

880-883) 

14) Police Laboratory Misconduct 

• “We therefore hold that the deliberate or knowing creation of a 

misleading and scientifically inaccurate serology report amounts to 

a violation of a defendant’s due process rights….” (Brown v. Miller, 

519 F.3d 231, 237 (5th Cir. 2008)) 

• “Olsen’s case points to another important problemóthat of rogue 

investigators and forensic experts. Melinkoff ’s long history of 

misconduct, resulting in the wrongful conviction of numerous 

innocent people, is hardly unique. Just last month, Annie Dookhan, 

a Massachusetts crime-lab technician, was sentenced to 3-5 years 

imprisonment after spending several years filing positive results 

for samples she had not properly tested. Her misconduct tainted 

over 40,000 drug samples, implicating several thousand defendants 

(hundreds of whom have already been released). See Katharine 

Q. Seelye & Jess Bidgood, Prison for a State Chemist Who Faked 

Drug Evidence, N.Y. Times, Nov. 23, 2013, at A9; Jennifer Levitz, 

Crime Lab’s Ex-Chemist Is Sentenced, Wall St. J., Nov. 23-24, 2013, 

at A2. Such incidents have become distressingly common. See, 

e.g., Joseph Goldstein, New York Sees Errors on DNA In Rape 

Cases, N.Y. Times, Jan. 11, 2013, at A1 (noting a city investigation 

that confirmed mishandling of evidence in at least 26 rape cases, 


prompting officials to explore over 800 more cases); Agency: 

Houston crime lab worker had history of poor work, ABC (Apr. 5, 

2013), http://goo.gl/9o8pfA (recounting the substandard work of 

a Texas lab technician affecting nearly 5,000 cases in 36 counties). 

Even the vaunted FBI Laboratory at Quantico, Virginia hasn’t 

been immune from charges of falsification and pro-prosecution 

bias. See Spencer S. Hsu, Justice Dept., FBI to review use of forensic 

evidence in thousands of cases, Wash. Post (July 10, 2012), http:// 

goo.gl/9GQUFw (announcing that the FBI was undertaking the 

largest-ever review of potential lab misconduct – over ten thousand 

cases going back to at least 1985 – due to numerous problems with 

forensic analyses).” (United States v. Olsen, 737 F.3d 625, 632 (9th 

Cir. 2013)) 

• For more examples of crime laboratory error and misconduct, see 

Paul C. Gianelli, Wrongful Conviction and Forensic Science: The 

Need to Regulate Crime Labs, 86 N.C.L. Rev. 163 (2007). 

15) Firearms 

• Non-disclosure of police ballistics and fingerprint tests violated 

defendant’s due process rights even though there was no evidence 

that the prosecutor was aware of the existence of the reports. 

(Barbee v. Warden, Maryland Penitentiary, 331 F.2d 842, 844-846 

(4th Cir. 1964)) 

• The prosecutor’s ignorance of the existence of the police officer’s 

exculpatory firearms worksheet (which constituted Brady material 

since it recorded the fact that the firearm was inoperable) did not 

excuse the state’s failure to produce it since Brady holds that the 

good or bad faith of the prosecution is irrelevant to the due process 

inquiry. (United States ex rel. Smith v. Fairman, 769 F.2d 386, 391 

(7th Cir. 1985)) 

• The fact that the prosecutor was blameless does not justify the 

state’s failure to produce the firearms worksheet, since prosecution’s 

constitutional disclosure obligation is not measured by the moral 

culpability or willfulness of the prosecutor. (United States v. Agurs, 

427 U.S. 97, 110, 96 S. Ct. 2392, 2400, 49 L. Ed. 2d 342, 352, n.17 

(1976)) 


16) Gang Evidence 

• Forty-five pages of reports pertaining to an unrelated shooting 

outside a convenience store portrayed the sole witness to a murder 

as wearing gang-type clothing and providing a pistol to the shooter, 

all of which belied the prosecutor’s position during the murder trial 

that the witness was not involved in any gang activity. This Brady 

error required reversal. (People v. Johnson (2006) 142 Cal.App.4th 

776, 786) 

• Suppressed information of rival gangs at war would have 

strengthened the defendant’s contention that he was not part of the 

drug conspiracy, but rather was a member of a rival gang. (United 

States v. Aviles-Colon, 536 F.3d 1, 18-22 (1st Cir. 2008)) 

• Failure to disclose an essential witness’ gang affiliation (and robbery 

conviction) caused reversal. (Amado v. Gonzalez, 758 F.3d 1119, 

1140-41 (9th Cir. 2014)) 

17) Fabrication of Evidence 

• Fabrication of evidence by a prosecutor violates due process. 

m “First, it is established that a conviction obtained through use 

of false evidence, known to be such by representatives of the 

State, must fall under the Fourteenth Amendment … [citations 

omitted] The same result obtains when the State, although not 

soliciting false evidence, allows it to go uncorrected when it 

appears. [citations omitted] 

“The principle that a State may not knowingly use false 

evidence, including false testimony, to obtain a tainted 

conviction, implicit in any concept of ordered liberty, does 

not cease to apply merely because the false testimony goes 

only to the credibility of the witness. The jury’s estimate of 

the truthfulness and reliability of a given witness may well be 

determinative of guilt or innocence, and it is upon such subtle 

factors as the possible interest of the witness in testifying 

falsely that a defendant’s life or liberty may depend. …” (Napue 

v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 1177, 3 L. Ed. 2d 

1217, 1221 (1959)) 


m “We agree with the district court that, viewing the facts 

and inferences discussed above in the light most favorable 

to White, Defendants’ [members of the Gage County, 

Nebraska Sheriff ’s Department] conduct in this case shocks 

the conscience. There can be little doubt that intentionally 

manufacturing false evidence to convict a criminal defendant 

is the sort of ‘brutal and inhumane abuse of official power’ 

that shocks the conscience. See Moran, 296 F.3d at 647 

(suggesting that ‘evidence that officials purposely conspired 

to manufacture evidence in order to make [the defendant] 

an innocent scapegoat’ could shock the conscience). We have 

also previously recognized that the following circumstances 

indicate conscience-shocking behavior in the context of a 

reckless or intentional failure to investigate claim: ‘(1) evidence 

that the state actor attempted to coerce or threaten the 

defendant, (2) evidence that investigators purposefully ignored 

evidence suggesting the defendant’s innocence, (3) evidence 

of systematic pressure to implicate the defendant in the face of 

contrary evidence.’ Akins v. Epperly, 588 F.3d 1178, 1184 (8th 

Cir. 2009).” (White v. Smith, 696 F.3d 740, 758 (8th Cir. 2012)) 

• Significantly, all courts that have directly confronted the question 

before us agree that the deliberate manufacture of false evidence 

contravenes the Due Process Clause.” (Whitlock v. Brueggemann, 

682 F.3d 567, 585 (7th Cir. 2012)) 

• “To the best of our knowledge, every court of appeals that has 

considered the question of whether a state actor has violated the 

defendant’s right to due process of law by fabricating evidence to 

charge or convict the defendant has answered in the affirmative. 

See Whitlock v. Brueggemann, 682 F.3d 567, 585 (7th Cir. 2012) 

(collecting court of appeals cases). We join these courts in expressly 

adopting this principle.” (Halsey v. Pfeiffer, 750 F.3d 273, 292 (3d 

Cir. 2014)) 

• “It is firmly established that a constitutional right exists not to be 

deprived of liberty on the basis of false evidence fabricated by a 

government officer.” (Zahrey v. Coffey, 221 F.3d 342, 355 (2d Cir. 

2000)) 


18) Bad Faith Failure to Investigate Exculpatory Evidence 

• “A prosecutor should not avoid pursuit of information or evidence 

because the prosecutor believes it will damage the prosecution’s 

case or aid the accused.” (ABA Standards for Criminal Justice: 

Prosecution Function, Proposed Standard 3-5.4(g)) 

• “We hold that a bad faith failure to collect potentially exculpatory 

evidence would violate the due process clause. As the Court in 

Youngblood observed, limiting the scope of the due process clause 

in this context to a bad faith failure to collect such evidence 

‘both limits the extent of the police’s obligation . . . to reasonable 

bounds and confines it to that class of cases where the interests of 

justice most clearly require it, i.e., those cases in which the police 

themselves by their conduct indicate that the evidence could form 

a basis for exonerating the defendant.’ “ (Miller v. Vasquez, 868 F.2d 

1116, 1120-1121 (9th Cir. 1989)) 

• The defendant’s 14th Amendment Due Process rights were violated 

by the prosecution’s admitted decision not to investigate concrete 

documentary evidence that the prosecution’s witnesses conspired to 

testify against the defendant. (Northern Mariana Islands v. Bowie, 

243 F.3d 1109, 1114 (9th Cir. 2001)) 

19) Suppressing Fourth Amendment Evidence 

• The trial court should have held an evidentiary hearing to assess the 

claim that the prosecution failed to disclose evidence of a Fourth 

Amendment violation. (United States v. Mazzarella, 784 F.3d 532, 

538 (9th Cir. 2015)) 

20) Medical Records 

• A Brady violation occurred when the prosecution failed to turn 

over medical records that proved that the accomplice could not 

have engaged in the physical acts which the testifying informer 

claimed he performed. (Wearry v. Cain, __U.S.__, 136 S. Ct. 1002, 

1005, 194 L. Ed. 2d 78, 82 (2016)) 

21) Psychological Testing 

• When the prosecution suppressed psychological reports which 

belied the prosecution’s position that the victim had a mental 

defect rendering her unable to give consent to the sexual advances, 


Brady error occurred since “it would have changed the dynamic of 

Bailey’s trial and there is a reasonable probability that it would have 

changed the result …” (Bailey v. Rae, 339 F.3d 1107, 1116 (9th Cir. 

2003)) 

• Withholding from the defense a deal made with a critical 

prosecution witness that he refrain from submitting to a psychiatric 

evaluation until after he testified against the defendant constituted 

Brady error. (Silva v. Brown, 416 F.3d 980, 986-992 (9th Cir. 2005)) 

22) Psychiatric Records 

• Psychiatric and medical records must be disclosed when they 

document prior mental and emotional problems which can affect 

credibility. (United States v. Pryce, 938 F.2d 1343, 1345-1346 (D.C. 

Cir. 1991); United States v. Partin, 493 F.2d 750, 762-764 (5th Cir. 

1974)) 

• Courts have long recognized the impeachment value of 

evidence that a government witness has a “severe illness, such as 

schizophrenia, that dramatically impaired [his] ability to perceive 

and tell the truth.” (United States v. Butt, 955 F.2d 77, 82-83 (1st Cir. 

1992)) 

• The psychiatric history of a jailhouse informer who had been 

diagnosed as mentally unstable and suffering from a severe 

personality disorder was Brady evidence which should have been 

disclosed. (Gonzalez v. Wong, 667 F.3d 965, 983 (9th Cir. 2011)) 

• A prosecution witness stood to gain financially by the deaths 

charged against the defendant. Her psychiatric records were 

inadvertently faxed to the prosecutor. These showed that the 

witness blurred reality and fantasy, projected blame on others 

and that she was possibly homicidal. The prosecution notified the 

defense of the existence of the reports, but the trial court ruled 

that the psychotherapist–patient privilege prevented disclosure. 

On appeal the records were held to be favorable to the defense 

and material, undermining confidence in the verdict. (Browning v. 

Trammell, 717 F.3d 1092, 1105-06, 1108 (10th Cir. 2013)) 

• “The government is generally under an obligation to disclose 

impeachment evidence that bears on the credibility of a witness, 

including evidence of poor mental and emotional health that may 


e provable on cross-examination. United States v. Pryce, 938 F.2d 

1343, 1345-46, 291 U.S. App. D.C. 84 (D.C. Cir. 1991); accord 

United States v. Smith, 77 F.3d 511, 516, 316 U.S. App. D.C. 199 

(D.C. Cir. 1996) (‘Mental records can be material as impeachment 

evidence because they can cast doubt on the accuracy of a witness’ 

testimony.’).” (United States v. Kohring, 637 F.3d 895, 910 (9th Cir. 

2011)) 

23) Criminal History for Impeachment 

• The prosecution has a duty to disclose to the defense criminal 

history information of crucial witnesses for the purpose of 

impeachment. (In re Ferguson (1971) 5 Cal.3d 525, 532-533; People 

v. Martinez (2002) 103 Cal.App.4th 1071, 1080-1081) 

• The type of impeachment evidence obtainable from criminal 

histories may vary from case to case: 

Examples: 

1. Felony convictions. (Cal. Penal Code § 1051.4(d) and (e); Cal. 

Evid. Code § 788; People v. Castro (1985) 38 Cal.3d 301, 312- 

316; People v. Little (1997) 59 Cal.App.4th 426, 433-434) 

2. Misdemeanor acts of moral turpitude. (People v. Wheeler 

(1992) 4 Cal.4th 284, 295-296) 

3. Pending criminal charges. (People v. Coyer (1983) 142 Cal. 

App.3d 839, 842-843) 

4. Probationary status. (Davis v. Alaska, 415 U.S. 308, 318-320, 94 

S. Ct. 1105, 1111-1112, 39 L. Ed. 2d 347, 355-356 (1974)) 

5. Character Evidence. Cal. Evid. Code § 1103; (People v. Wright 

(1985) 39 Cal.3d 576, 587; People v. Shoemaker (1982) 135 Cal. 

App.3d 442, 446) 

24) Statements of Motive, Bias or Interest 

• It was Brady error to withhold statements of fellow inmates who 

quoted the testifying informer saying he wanted to “make sure 

[Wearry] gets the needle cause he jacked over me.” (Wearry v. Cain, 

__U.S.__, 136 S. Ct. 1002, 1004, 194 L. Ed. 2d 78, 81-82 (2016)) 

• Suppression of offers of a deal to a witness to reduce his sentence if 

he testified amounted to a Brady violation (the jury had been told 


only that he testified because his sister knew the victim’s sister). 

(Wearry v. Cain, __U.S.__, 136 S. Ct. 1002, 1004, 194 L. Ed. 2d 78, 

81-82 (2016)) 

• “The Court has extended Brady protection to witness-credibility 

evidence when the reliability of the witness ‘may well be 

determinative of guilt or innocence.’ Giglio v. United States, 405 

U.S. 150, 154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972) (quotation 

and citation omitted). One reason for this extension to witnesscredibility 

evidence is because ‘exposure of a witness’[s] 

motivation in testifying is a proper and important function of the 

constitutionally protected right of cross-examination.’ Davis v. 

Alaska, 415 U.S. 308, 316-17, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974) 

(citation omitted). We have determined that witness motivations, 

like the payment of money as an incentive to change testimony, fall 

within the Brady disclosure requirement. United States v. Librach, 

520 F.2d 550, 554 (8th Cir. 1975).” (United States v. Sigillito, 759 F.3d 

913, 929 (8th Cir. 2014)) 

• “Beyond doubt, the newly revealed evidence suffices to undermine 

confidence in Wearry’s conviction. The State’s trial evidence 

resembles a house of cards….” (Wearry v. Cain, __U.S.__, 136 S. Ct. 

1002, 1006, 194 L. Ed. 2d 78, 84 (2016)) 

25) Past False Reports 

• Past false reporting of molest by the alleged victim constitutes Brady 

material. (People v. Gutierrez (2013) 214 Cal.App.4th 343, 356) 

• In a case charging spousal rape, it was error to deny discovery of 

past false reports of sex offenses. (People v. Hayes (1992) 3 Cal. 

App.4th 1238, 1245) 

26) Coaching of Prosecution Witnesses 

• Police coaching of a witness by detailing their case and having him 

parrot it back on the promise that he would be released constitutes 

Brady material which should have been disclosed. (Lewis v. Conn. 

Comm’r of Corr., 790 F.3d 109, 122-123 (2d Cir. 2015)) 

• When the testifying informer enlisted another inmate to 

corroborate his story, the latter told police that he had been told 

what to say and that the fabrication would help him get out of 


jail. Suppression of these facts was Brady error. (Wearry v. Cain, 

__U.S.__, 136 S. Ct. 1002, 1004, 194 L. Ed. 2d 78, 82 (2016)) 

• Brady was violated when the prosecution withheld the initial 

interview of the hit man in which the police first suggested whom he 

needed to identify as the person who hired him if he was going to get 

a plea bargain. (Wolfe v. Clarke, 691 F.3d 410, 417 (4th Cir. 2012)) 

• Brady error was found where the deputy corrected the uncertain 

witness’ choice in a photo lineup, saying “No, it couldn’t be him. 

He’s locked up,” commended him on making the “right choice” 

upon selecting the defendant, and then omitted to put in his report 

that the witness had selected several other photos first. (Carrillo v. 

County of Los Angeles, 798 F.3d 1210, 1216 (9th Cir. 2015)) 

• The following was “clearly established to be Brady material”: “Even 

though Druecker told the officers he did not recognize any of the 

men depicted in the photos, they told him to ‘really look’ at the 

photos. Feeling he had to select one of the photos, and believing 

the officers already knew who the shooter was, he pointed to photo 

three (which depicted O’Connell) and asked, ‘Is this the guy?’ 

The officers asked if this was the person he was identifying as the 

shooter. Thinking the officers already knew who the shooter was, 

Druecker responded, ‘I think that’s the guy.’ The officers told him 

he had to be certain. He said he was sure, but at the evidentiary 

hearing on O’Connell’s habeas petition, he testified that he only did 

so out of intimidation.” (Carrillo v. County of Los Angeles, 798 F.3d 

1210, 1214 (9th Cir. 2015)) 

27) Ensuring the Unavailability of Witnesses 

• An off-duty police officer was belatedly revealed to be an eyewitness 

who contradicted the uncorroborated testimony of two witnesses 

to a murder: the prosecution took measures to prevent the defense 

from contacting this key witness for the defense, including 

obtaining an overbroad protective order barring the defense from 

communicating with him. The Brady misconduct constituted a 

reversal. (Leka v. Portuondo, 257 F.3d 89, 93-94 (2d Cir. 2001)) 

28) Perjury 

• A Giglio violation occurs when the prosecutor knowingly uses 


perjured testimony, or fails to correct that which is subsequently 

learned to be false testimony. (Giglio v. United States, 405 U.S. 150, 

153, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104, 108 (1972)) 

• Giglio represents a subset of Brady, with a different standard: the 

defendant need only show that there was a reasonable likelihood 

that the false testimony could have affected the verdict. (United 

States v. Agurs, 427 U.S. 97, 103-104, 96 S. Ct. 2392, 2397, 103 L. Ed. 

2d 342, 349 (1976)) 

m This standard is the equivalent of the “harmless beyond a 

reasonable doubt” standard of Chapman v. California, 386 U.S. 

18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-711 (1967). 

(United States v. Bagley, 473 U.S. 667, 669, 105 S. Ct. 3375, 

3782, 87 L. Ed. 2d 481, 492, n.9 (1985); Ford v. Hall, 546 F.3d 

1326, 1332 (11th Cir. 2008)) 

m The Brady standard of materiality is less “defense-friendly” in 

that it requires that the defendant demonstrate a reasonable 

probability that the outcome would have been different. 

(Trepal v. Sec’y, Fla. Dep’t of Corr., 684 F.3d 1088, 1108 (11th 

Cir. 2012)) 

• There is no Giglio violation when the evidence is known by the 

defense counsel. (Hammond v. Hall, 586 F.3d 1289, 1308-1309 (11th 

Cir. 2009)) 

• The rule of Brady v. Maryland arguably applies in three quite 

different situations. The use of perjured evidence is one such 

category. 

m “In the first situation, typified by Mooney v. Holohan, 294 

U.S. 103, the undisclosed evidence demonstrates that the 

prosecution’s case includes perjured testimony and that the 

prosecution knew, or should have known, of the perjury. In 

a series of subsequent cases, the Court has consistently held 

that a conviction obtained by the knowing use of perjured 

testimony is fundamentally unfair, and must be set aside if 

there is any reasonable likelihood that the false testimony 

could have affected the judgment of the jury.” (United States v. 

Agurs, 427 U.S. 97, 103-04, 96 S. Ct. 2392, 2397, 49 L. Ed. 2d 

342, 349 (1976)) 


• Evidence showing the motive of the cooperating witness to present 

false testimony is discoverable under Brady. (Killian v. Poole, 282 

F.3d 1204, 1210 (9th Cir. 2002)) 

• Commission of perjury by a witness in a related proceeding is 

beyond “mere impeachment” and is discoverable. (United States v. 

Espinosa-Hernandez, 918 F.2d 911, 914 (11th Cir. 1990)) 

29) Double Blind Perjury 

• Due process was violated when the prosecutor made a deal for 

transactional immunity for testimony in a murder case and 

dismissal of other charges while exacting a promise from the 

witness’ attorney that the witness himself not be told of it so that he 

would testify that no deal had been made for his testimony. (Hayes 

v. Brown, 399 F.3d 972, 981 (9th Cir. 2005)) 

• A Brady violation for failing to disclose an agreement with a witness’ 

counsel was compounded by an artifice which allowed the witness 

to falsely testify that no such deal existed, a violation of Napue v. 

Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959). (Phillips 

v. Ornoski, 673 F.3d 1168, 1183, 1186 (9th Cir. 2012)) 

30) Admission of Perjury 

• Failure to disclose a letter in which the government’s “make or 

break” witness said “I even lied my ass off on the stand for you 

people” constituted Brady misconduct. (Killian v. Poole, 282 F.3d 

1204, 1210 (9th Cir. 2002)) 

31) Eyewitnesses 

• Failure to disclose the lead investigator’s handwritten notes of 

statements by the sole eyewitness which contradicted his testimony 

required Brady reversal. (Smith v. Cain, 565 U.S. 73, 76, 132 S. Ct. 

627, 631, 181 L. Ed. 2d 571, 575 (2012)) 

• Brady due process was violated by failure to disclose that a 

detective, shortly before stopping the car which the defendant was 

driving, observed the defendant helping the robber by opening the 

hood of the car and sitting in the driver’s seat, which corroborated 

the defendant’s statement that he was only helping get the car 

started, not aiding a robbery. (United States v. Hibler, 463 F.2d 455, 

459 (9th Cir. 1972)) 


• Brady error was found in the denial to the defense of a statement of 

a government witness whose account which, while not mentioning 

the defendant, was found to be exculpatory because it left a strong 

inference that the murder weapon was not obtained from the 

defendant. (Jones v. Jago, 575 F.2d 1164, 1168 (6th Cir. 1978)) 

• The failure to disclose witness’ statements and photographs denied 

the defendant his Fourteenth Amendment right to a fair trial 

because the undisclosed evidence was material on the issue of 

whether or not the defendant committed the crime, corroborated 

his defense of accidental discharge and contradicted the witness’ 

testimony at trial. (Davis v. Heyd, 479 F.2d 446, 453 (5th Cir. 1973)) 

32) Eyewitness Identification 

• “Any evidence that would have had a significantly negative effect 

on how the jury evaluated their testimony, therefore, necessarily 

would have substantially undercut the case against petitioner. In 

Nicole’s case, the existence of tapes that disclosed the uncertainty 

in the identification and raised questions about influencing the 

identification with respect to the photographs would have had the 

potential of seriously undermining the veracity of the photographic 

identification she made in court. Failure to disclose the existence of 

the tapes directly affected the ability of the defense to test one of the 

prosecution’s two principal witnesses.” (In re Sodersten (2007) 146 

Cal.App.4th 1163, 1228-1229) 

• Suppression of a statement of an eyewitness that the defendant was 

not one of the perpetrators was Brady error. (Merrill v. Superior 

Court (1994) 27 Cal.App.4th 1586, 1596) 

• Brady was violated when police officers failed to disclose the 

uncertainty of a witness’ identification when shown a photo lineup. 

(Carrillo v. County of Los Angeles, 798 F.3d 1210, 1216-17 (9th Cir. 

2015)) 

• The prosecutor’s failure to disclose to the defense the existence of 

an eyewitness who positively identified the killer of the city’s deputy 

police chief ’s son as someone other than the defendant violated the 

prosecutor’s duty to disclose. (Cannon v. Alabama, 558 F.2d 1211, 

1216 (5th Cir. 1977)) 


• “The disclosure of Villareal’s hesitancy and uncertainty when 

shown the photo lineup would have undercut Smith’s testimony 

that Villareal readily chose O’Connell’s photo from the lineup and 

was prevaricating on the stand.” (Carrillo v. County of Los Angeles, 

798 F.3d 1210, 1226 (9th Cir. 2015)) 

• Eyewitness identification issues may assume greater importance in 

capital cases. 

m “Furthermore, the identification is even more important in 

the punishment phase, since a person may be found guilty 

of murder without proof that he killed or, at a minimum, 

contemplated that life would be taken but may not be 

sentenced to death without such proof. See Emmund v. Florida, 

458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982).” 

(Lindsey v. King, 769 F.2d 1034, 1042 (5th Cir. 1985)) 

33) Questioned Memory 

• The prosecution should have disclosed as Brady material the fact 

that the “victim” questioned his own memory of the event and 

whether a crime actually happened. (Comstock v. Humphries, 786 

F.3d 701, 713 (9th Cir. 2015)) 

• Withholding exculpatory facts (as opposed to the prosecutor’s 

opinion or work product) of faulty memory is Brady error. (United 

States v. Kohring, 637 F.3d 895, 906-909 (9th Cir. 2011)) 

• “The fact that she had so much difficulty recalling details and had 

to be coached repeatedly would have been important impeachment. 

… So, while prosecutor O’Mara was not required to turn over his 

opinion that Hogue’s memory was bad, he was required to turn 

over any ‘underlying exculpatory facts’ such as her statements that 

she was unable to recall details or her statements that otherwise 

contradicted her testimony.” (Majors v. Warden, 2016 U.S. Dist. 

LEXIS 70099, at 83 (E.D.Cal. 2016)) 

• “Ehrlich’s initial statements to Fire Marshal Bollman that Calvin 

may have been one of her attackers and that she would like to see a 

photograph of him to be sure tend to impeach her later statements 

that she was certain from the time of the attack that Calvin Boyette 

was one of the perpetrators. Thus, it is classic Brady material.” 

(Boyette v. Lefevre, 246 F.3d 76, 91 (2d Cir. 2001)) 


34) Factual Impossibility 

• Police found a stick of dynamite in a field, then emptied the 

dynamite from it and inserted sawdust before replacing it in the 

field. The defendant was accused of possession of dynamite, to 

which he pled guilty without being told that the substance was 

sawdust. The court found that this was a material omission since 

factual impossibility prevented the accused from being guilty of this 

crime. The court held that it was “…an omission of constitutional 

proportion and subject to censure as a bargaining tactic.” 

(Ultimately the court ducked the issue, holding that he could have 

been convicted of attempted possession and besides got the benefit 

of a good plea bargain.) (Fambo v. Smith, 433 F.Supp. 590, 596-600 

(W.D.N.Y. 1977), aff ’d 565 F.2d 233) 

• The prosecution suppressed a statement by another that he had 

stabbed the decedent prior to defendant. Brady error was found, 

since that information supported a defense theory that the death 

was caused by the first assailant’s actions. (“Whatever else it may 

be, it is not murder to shoot a dead body. Man dies but once.”) 

(DiSimone v. Phillips, 461 F.3d 181, 195 (2d Cir. 2006) 

35) Evidence Inconsistent with the Prosecution’s Theory 

• Brady was violated where the government withheld evidence that 

“would have substantially undermined the state’s principal theory.” 

(Benn v. Lambert, 283 F.3d 1040, 1062 (9th Cir. 2002); Williams v. 

Ryan, 623 F.3d 1258, 1266 (9th Cir. 2010)) 

• Withholding SEC deposition transcripts from the defense 

constituted a Brady violation when the former testimony would 

have impeached government witnesses. (United States v. Mahaffy, 

693 F.3d 113, 133 (2d Cir. 2012)) 

• “Taken together, these facts demonstrate that Cordray had the 

means, motive, and opportunity to murder Aaron. These facts, had 

they been disclosed, would have provided a compelling counternarrative 

to the state’s theory of the case and would have called into 

question the thoroughness of the police investigation.” (Gumm v. 

Mitchell, 775 F.3d 345, 370 (6th Cir. 2014)) 

• A Brady violation was found where the prosecution decided not to 

reveal statements made by the co-defendant in an initial pre-plea 


iefing, where he stated that this defendant had no knowledge of 

the drug conspiracy. (United States v. Tavera, 719 F.3d 705, 710, 

713-714 (6th Cir. 2013)) 

• Evidence that witnesses linked to physical evidence (a phone 

number on a matchbook) could not identify the defendant 

“undercut” the prosecution’s theory of the case; failure to disclose 

this fact constituted Brady error. (Gantt v. Roe, 389 F.3d 908, 911- 

912 (9th Cir. 2004)) 

36) Third Party Culpability 

• The Iowa Supreme Court clearly articulated the materiality of third 

party culpability evidence in Harrington v. State. In that case a 

security guard (and retired police officer) was killed with a shotgun 

while patrolling a car dealership. Footprints and dog prints were 

found near the body. Withheld from the defense were reports that 

the victim had reported a man trying to get into a vehicle two 

nights before the murder. That man was seen carrying a shotgun 

and accompanied by a dog. He was identified as Charles Gates, the 

suspect in a fourteen-year old murder case. The police investigated 

Gates for the current murder, even to the extent of questioning 

him and conducting a polygraph which registered him as “not 

truthful.” None of this information was disclosed to counsel for 

Terry Harrington, a seventeen-year old. The Iowa Supreme Court 

understood the materiality of this evidence: 

“Given this evidence, a jury might very well have a reasonable 

doubt that Harrington shot Schweer. That is all that is required 

to establish the materiality of the undisclosed evidence. See 

Lay v. State, 116 Nev. 1185, 14 P.3d 1256, 1263 (2000) (stating 

‘specific evidence of the existence of another shooter’ was 

potentially material because the defense ‘might develop 

reasonable doubt as to whether [the defendant] was the actual 

killer’). We do not think Harrington had to show, as the State 

argues, that the police reports would have ‘led to evidence that 

someone else committed [the] crime.’ It was incumbent on the 

State to prove Harrington’s guilt beyond a reasonable doubt; it 

was not Harrington’s responsibility to prove that someone else 

murdered Schweer. Therefore, if the withheld evidence would 

create such a doubt, it is material even if it would not convince 


the jury beyond a reasonable doubt that Gates was the killer.” 

(Harrington v. State of Iowa, 659 N.W.2d 509, 525 (2003)) 

• “The government may not, consistent with Brady, suppress 

information that another person committed the crime for which 

the defendant is on trial.” (Williams v. Ryan, 623 F.3d 1258, 1266 

(9th Cir. 2010); United States v. Moore, 709 F.3d 287, 294 (4th Cir. 

2013)) 

• Failure to disclose the confession of an alternate suspect violates 

Brady: “The Inspectors received a Mirandized confession by 

someone who had been named by a reliable witness, known to the 

officers, who recounted events surrounding the murder in detail, 

and whose account contradicted that of the prosecution’s witnesses. 

The evidence certainly ‘undermines confidence in the outcome of 

the trial.’ [citation omitted]” (Tennison v. City and County of San 

Francisco, 570 F.3d 1078, 1094 (9th Cir. 2009)) 

• “Taken together, these facts demonstrate that Cordray had the 

means, motive, and opportunity to murder Aaron. These facts, had 

they been disclosed, would have provided a compelling counternarrative 

to the state’s theory of the case and would have called into 

question the thoroughness of the police investigation.” (Gumm v. 

Mitchell, 775 F.3d 345, 370 (6th Cir. 2014)) 

• “Withholding knowledge of a second suspect conflicts with the 

Supreme Court’s directive that ‘the criminal trial, as distinct from 

the prosecutor’s private deliberations, [be preserved] as the chosen 

forum for ascertaining the truth about criminal accusations.’ Kyles, 

514 U.S. at 440. By suppressing this evidence, the prosecution 

arrogated to itself a central function belonging to the criminal 

jury and pursued its role as adversary to the exclusion of its role 

as architect of a just trial. Cf. Brady, 373 U.S. at 87-88 & n.2. The 

government has deprived Jernigan of a fair trial and placed a 

possibly innocent woman behind bars.” (United States v. Jernigan, 

492 F.3d 1050, 1056 (9th Cir. 2007)) 

• “On its face, the nondisclosure of the identities of the other suspects 

– two of whom were reported to have confessed to the murder – 

was an egregious breach of the State’s Brady obligations.” (Bies v. 

Sheldon, 775 F.3d 386, 400 (6th Cir. 2014)) 


• “ ‘[I]f the evidence [that someone else committed the crime] is in 

truth calculated to cause the jury to doubt, the court should not 

attempt to decide for the jury that this doubt is purely speculative 

and fantastic but should afford the accused every opportunity to 

create that doubt.’ United States v. Vallejo, 237 F.3d 1008, 1023 (9th 

Cir. 2001) (quoting John Henry Wigmore, Evidence in Trials at 

Common Law § 139 (1983)) (alterations in original).” (United States 

v. Stever, 603 F.3d 747, 754 (9th Cir. 2010)) 

• Failure to disclose officers’ handwritten notes which documented 

an earlier attempt to murder the decedent by persons other than 

this accused constituted Brady error. (Carrillo v. County of Los 

Angeles, 798 F.3d 1210, 1226 (9th Cir. 2015)) 

• The prosecution suppressed a statement by another that he had 

stabbed the decedent prior to the defendant. Brady error was found, 

since that information supported a defense theory that the death 

was caused by the first assailant’s actions. (“Whatever else it may 

be, it is not murder to shoot a dead body. Man dies but once.”) 

(DiSimone v. Phillips, 461 F.3d 181, 195 (2d Cir. 2006)) 

37) Duress Defense 

• Evidence that the defendant had killed because of death threats 

against him and his family was favorable and material on the issue 

of penalty, and should have been disclosed under Brady. (In re 

Bacigalupo (2012) 55 Cal.4th 312, 336, Liu, J., concurring.) 

38) Similar Perpetrator Evidence 

• Withholding from the defense evidence that a “strikingly similar” 

perpetrator was robbing banks in the same locale after the 

defendant had been incarcerated for a bank robbery constituted a 

Brady violation. (United States v. Jernigan, 492 F.3d 1050, 1054-1057 

(9th Cir. 2007)) 

• “The existence of evidence that other African-American females 

were seen in the vicinity of 2100 Main Street that same day might 

have a tendency to prove Davis’ defense that she was not the 

person Officer Taylor observed selling drugs to Jones. Evidence 

is exculpatory under Brady and, therefore discoverable, if Davis 

could have used it for impeachment purposes. See United States 

v. Bagley, 473 U.S. 667 676, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481 


(1985). These records were discoverable under Brady.” (Davis v. 

Commonwealth of Virginia, 25 Va.App. 588, 598, 491 S.E.2d 288, 

293 (1997)) 

• In this 42 U.S.C. section 1983 action, the jury verdict in favor 

of the detainee’s due process claim was upheld where the police 

suppressed the fact that the spree of demand-note robberies 

continued after the detainee’s arrest. (Tatum v. Moody, 768 F.3d 806, 

818-819 (9th Cir. 2014)) 

39) Other Investigations 

• Failure to reveal impeachment evidence--an ongoing fraud 

investigation by the SEC against the prosecution’s witness--was 

Brady error. (United States v. Parker, 790 F.3d 550, 558 (4th Cir. 

2015)) 

40) Sexual Misconduct 

• Withholding evidence of sexual misconduct with minors 

committed by the cooperating witness constituted Brady error 

because it was probative of the witness’ character for truthfulness, 

established the “magnitude of Allen’s incentive to cooperate with 

the authorities,” and was fertile ground for impeachment, citing the 

holding of Lindh v. Murphy, 124 F.3d 899 (7th Cir. 1997). (United 

States v. Kohring, 637 F.3d 895, 904 (9th Cir. 2011)) 


8. Prosecutor’s Knowledge 

1) The Prosecutor 

• “The individual prosecutor is presumed to have knowledge of 

all information gathered in connection with the government’s 

investigation.” (In re Brown (1998) 17 Cal.4th 873, 879) 

• “If evidence highly probative of innocence is in [the prosecutor’s] 

file, he should be presumed to recognize its significance even when 

he has actually overlooked it.” (United States v. Agurs, 427 U.S. 97, 

110, 96 S. Ct. 2392, 2400, 49 L. Ed. 2d 342, 353 (1976)) 

• “Prosecutors may not simply claim ignorance of Brady material.” 

(Crivens v. Roth, 172 F.3d 991, 996 (7th Cir. 1999)) 

2) The Prosecution Team 

• A prosecutor’s duty under Brady to disclose exculpatory evidence 

applies to evidence that the prosecutor, or the prosecution team, 

knowingly possesses or has the right to possess. (The team includes 

both investigative and prosecutorial agencies and personnel.) (In re 

Brown (1998) 17 Cal.4th 873, 879; People v. Jordan (2003) 108 Cal. 

App.4th 349, 358) 

• “The government cannot with its right hand say that it has nothing 

while its left hand holds what is of value.” (United States v. Wood, 57 

F.3d 733, 737 (9th Cir. 1995)) 

• “…[T]he DEA cannot undermine Brady by keeping exculpatory 

evidence ‘out of the prosecutor’s hands until the [DEA] decides the 

prosecutor ought to have it.’ “ (United States v. Blanco, 392 F.3d 382, 

394 (9th Cir. 2004)) 

• “…[W]hether the non-disclosure was a result of negligence or 

design, it is the responsibility of the prosecutor.” (Giglio v. United 

States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104, 109 

(1972)) 

• “Studied ignorance generated by a failure to inquire will not be 

treated as equivalent to innocent or blameless conduct by law 

enforcement officials.” (People v. Hayes (1988) 200 Cal.App.3d 400, 

407-408) 


• Courts do not draw distinctions between different agencies under 

the same government. (In re Brown (1998) 17 Cal.4th 873, 879) 

• Where material evidence tending to exculpate the defendant was 

not disclosed, the failure was not neutralized because it was in 

the hands of the police rather than in the prosecutor. (Barbee v. 

Warden, Maryland Penitentiary, 331 F.2d 842, 846 (4th Cir. 1964)) 

• “If, as in Giglio, knowledge is imputed from one member of 

the prosecutor’s office to another where there was no actual 

communication, we believe a fortiori it must be attributed to a 

member of that office who had been told of the promise.” (Boone v. 

Paderick, 541 F.2d 447, 451 (4th Cir. 1976)) 

• “A prosecutor’s office cannot get around Brady by keeping itself in 

ignorance or [by] compartmentalizing information about different 

aspects of the case.” (Carey v. Duckworth, 738 F.2d 875, 878 (7th 

Cir. 1984)) 

m Claimed ignorance of Brady material in the possession of 

another prosecution team member has even garnered a name: 

the Ostrich Defense. (Sherer v. Stewart, 2008 U.S. Dist. LEXIS 

118661, at 51-52 (W.D.Wash. 2008)) 

• Materials discoverable by the defense include information in the 

possession of all agencies to which the prosecution has access that 

are part of the criminal justice system, not just information in the 

hands of the prosecutor. (Engstrom v. Superior Court (1971) 20 Cal. 

App.3d 240, 243-244 (overruled on other grounds, 10 Cal.3d 812); 

People v. Robinson (1995) 31 Cal.App.4th 494, 499) 

• “While other state actors, like the police, share the prosecutor’s 

constitutional obligation to disclose exculpatory evidence to 

the defendant, the prosecutor owes a distinct, if not heightened, 

disclosure obligation to the defendant once judicial proceedings 

commence. See Arizona v. Youngblood, 488 U.S. 51, 56-58, 109 S. 

Ct. 333, 102 L. Ed. 2d 281 (1988) (recognizing that police have a 

due process obligation to preserve and disclose evidence they know 

to have exculpatory value and distinguishing that duty, and the 

framework by which it is analyzed, from one imposed by Brady). As 

the Court explained in Brady, the prosecutor is the ‘architect’ of the 

trial, 373 U.S. at 87-88, and his purpose is to both secure criminal 


convictions and ensure that ‘criminal trials are fair,’ id. at 87, even 

where his police officers would not. See also Kyles v. Whitley, 514 

U.S. 419, 438, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995) (identifying 

the prosecutor as ‘the final arbiter[] of the government’s obligation 

to ensure fair trials’). Thus, we impose upon the prosecutor the 

responsibility to disclose not only any evidence within his own 

files, see United States v. Agurs, 427 U.S. 97, 110, 96 S. Ct. 2392, 49 

L. Ed. 2d 342 (1976), but also any evidence possessed exclusively 

by those actors assisting him in investigating and trying his case, 

see Whitley, 514 U.S. at 437 (‘[T]he individual prosecutor has a 

duty to learn of any favorable evidence known to the others acting 

on the government’s behalf ....’). Once a defendant is indicted, the 

disclosure obligation and the due process in question correspond to 

his trial rights, and a prosecutor’s failure to uphold that obligation, 

in the form of suppression, coincides with his prosecutorial 

function.” (Fields v. Wharrie, 672 F.3d 505, 513 (7th Cir. 2012)) 

• The police need not make decisions regarding the disclosure of 

exculpatory evidence to the defense: “…[T]he police satisfy their 

obligations under Brady when they turn over exculpatory evidence 

to the prosecutors.” (Walker v. New York, 974 F.2d 293, 299 (2d Cir. 

1992)) 

• “The duty to disclose is that of the state, which ordinarily acts 

through the prosecuting attorney; but if he too is the victim of 

police suppression of the material information, the state’s failure 

is not on that account excused. We cannot condone the attempt to 

connect the defendant with the crime by questionable inferences 

which might be refuted by undisclosed and unproduced documents 

then in the hands of the police. To borrow a phrase from Chief 

Judge Biggs, this procedure passes ‘beyond the line of tolerable 

imperfection and falls into the field of fundamental unfairness.’ “ 

(Barbee v. Warden, Maryland Pentientiary, 331 F.2d 842, 846 (4th 

Cir. 1964)) 

• A prosecutor’s duty under Brady necessarily requires the 

cooperation of other government agents who might possess Brady 

material. (United States v. Zuno-Arce, 44 F.3d 1420, 1427 (9th Cir. 

1995)) 


• The following test has been offered when other government 

agencies are involved: 

“It appears that in addressing the issue of cross-jurisdiction 

constructive knowledge, most courts of appeals have looked 

to the same questions that we have. Those questions include: 

(1) whether the party with knowledge of the information is 

acting on the government’s ‘behalf ’ or is under its ‘control’; 

(2) the extent to which state and federal governments are part 

of a ‘team,’ are participating in a ‘joint investigation’ or are 

sharing resources; and (3) whether the entity charged with 

constructive possession has ‘ready access’ to the evidence.” 

(United States v. Risha, 445 F.3d 298, 304 (3d Cir. 2006)) 

• The fact that state and federal agencies may be working together on 

a case does not insulate either from the dictates of Brady. 

“…[F]ederal and state sovereignty overlap in many respects. 

Imposing a rigid distinction between federal and state agencies 

which have cooperated intimately from the outset of an 

investigation would artificially contort the determination of 

what is mandated by due process. Rather than endorse a Per 

[sic] se rule, we prefer a case-by-case analysis of the extent of 

interaction and cooperation between the two governments.” 

(United States v. Antone, 603 F.2d 566, 570 (5th Cir. 1979)) 

• The definition of the “team’s” duty must be broad rather than 

restricted. 

m “The Brady duty falls on the prosecutor to learn the 

incriminating information in the hands of covered third 

persons, not on third parties to communicate it.” (Pitonyak v. 

Stephens, 732 F.3d 525, 533 (5th Cir. 2013)) 

m “Since, then, the prosecutor has the means to discharge the 

government’s Brady responsibility if he will, any argument 

for excusing a prosecutor from disclosing what he does not 

happen to know about boils down to a plea to substitute the 

police for the prosecutor, and even for the courts themselves, 

as the final arbiters of the government’s obligation to ensure 

fair trials.” (Kyles v. Whitley, 514 U.S. 419, 438, 115 S. Ct. 1555, 

1568, 131 L. Ed. 2d 490, 508-509 (1995)) 


• “…[T]he DEA cannot undermine Brady by keeping exculpatory 

evidence ‘out of the prosecutor’s hands until the [DEA] decides the 

prosecutor ought to have it.’” (United States v. Blanco, 392 F.3d 382, 

394 (9th Cir. 2004)) 

• “We hold only that under Brady the agency charged with 

the administration of a statute, which has consulted with the 

prosecution in the steps leading to prosecution, is to be considered 

as part of the prosecution in determining what information must 

be made available to the defendant charged with violation of the 

statute. The government cannot with its right hand say it has 

nothing while its left hand holds what is of value.” (United States v. 

Wood, 57 F.3d 733, 737 (9th Cir. 1995)) 

• It is no defense to argue that the withheld information need not 

be disclosed because it is located outside the district in which the 

prosecution is proceeding. (United States v. Bryan, 868 F.2d 1032, 

1037 (9th Cir. 1989)) 

• The Brady Silver Platter Rule: another agency may achieve “team” 

status by turning its information over to the prosecution. “…[T]he 

discovery the U.S. Attorney’s Office has provided to Defendant is 

largely composed of files obtained from the SEC. Thus, the SEC’s 

‘possession, custody or control’ is imputed to the U.S. Attorney’s 

Office.” (United States v. Feathers, 2016 U.S. Dist. LEXIS 175313, at 

42-43 (N.D.Cal. 2016)) 

• Some courts fear a “monolithic view of government” would 

“condemn the prosecution of criminal cases to a state of paralysis.” 

(United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998)) 

• Other courts have avoided holding that an agency’s information 

is discoverable when it is “merely speculative.” (United States v. 

Bhutani, 175 F.3d 572, 577 (7th Cir. 1999)) 

• If an agency is a “victim” and not responsible for administrating the 

operative statute, it may not be given “team” status. (United States v. 

Labovitz, 1997 U.S. Dist. LEXIS 7541, at 11-12 (D.Mass. 1997)) 

Search the media for government press releases 

trumpeting inter-agency cooperation, then include 

those as exhibits in order to establish team status. (See 

United States v. Pac. Gas & Elec. Co., 2015 U.S. Dist. LEXIS 


84139, at 19 (N.D.Cal. 2015)) 

3) Who is on The Team? Examples 

• A crime laboratory responsible for assisting the District Attorney’s 

Office in the prosecution of cases is a part of the “prosecution 

team.” (In re Brown (1998) 17 Cal.4th 873, 882) 

• “Because Miller participated in the investigation of the Robbins 

murder and was employed by an investigating agency, he was 

part of the prosecution team, and the prosecutor therefore had 

a constitutional duty to disclose exculpatory, material evidence 

in Miller’s possession regardless whether the prosecutor was 

personally aware of the existence of the evidence.” (People v. 

Whalen (2013) 56 Cal.4th 1, 64) 

• When a Post Office employee was the target of a bribery attempt, 

that agency’s files fell within the prosecutor’s reach for Brady 

purposes. “The government cannot compartmentalize the 

Department of Justice and permit it to bring a charge affecting 

a government employee in the Post Office and use him as its 

principal witness, but deny having access to the Post Office files.” 

(United States v. Deutsch, 475 F.2d 55, 57 (5th Cir. 1973) (overruled 

on other grounds, 749 F.2d 203)) 

• U.S. Marshals were deemed team members when they installed and 

continuously operated video teleconferencing equipment which 

recorded a cooperating witness at the prosecutors’ request. (United 

States v. Bin Laden, 397 F. Supp. 2d 465, 481 (S.D.N.Y. 2005)) 

• In a molest trial when a witness testified falsely that she was 

credentialed as a sexual assault nurse examiner (SANE nurse), 

she was a member of the prosecution team and her knowledge 

of her own lack of credentials was imputed to the prosecution. 

(McCormick v. Parker, 821 F.3d 1240, 1247 (10th Cir. 2016)) 

• The police had no duty to discover evidence possessed only by a 

cooperating witness, where that person “remained an independent 

actor” with his own agenda. (United States v. Graham, 484 F.3d 413, 

417 (6th Cir. 2007)) 

• Some courts have held that in “most cases” cooperating witnesses 

should not be considered part of the prosecution team. (United 


States v. Meregildo, 920 F. Supp. 2d 434, 444 (S.D.N.Y. 2013)) 

• Some agencies, such as the California Department of Corrections, 

are said to have hybrid status: part investigative agency, part third 

party. (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 

1305, 1317: see also Hurd v. Superior Court (2006) 144 Cal.App.4th 

1100, 1108-1110, rejecting hybrid status for a city) 

• A state social services agency is a separate authority and is not 

considered a prosecutorial agency for Brady purposes. (Fenenbock 

v. Dir. of Corr. for Cal., 681 F.3d 968, 975 (9th Cir. 2012)) 

• A state child protection agency was held to be outside the reach of a 

Brady claim since the prosecution did not have custody, possession 

or control of that agency’s files. (Lavallee v. Coplan, 374 F.3d 41, 43- 

44 (1st Cir. 2004)) 

For the procedures to follow to obtain such records, 

see Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989, 

94 L. Ed. 2d 40 (1987) 

• An expert witness who analyzed evidence, assisted the prosecution 

in preparing cross-examination questions, participated in mock 

exams and testified at trial was not considered a member of the 

prosecution team! (United States v. Stewart, 433 F.3d 273, 298-299 

(2d Cir. 2006)) 

• The exculpatory opinion of a non-testifying prosecution expert, a 

physician at a hospital, was held not to be Brady material since he 

had no active role in the investigation or prosecution and therefore 

his knowledge would not be imputed to the prosecution. (Avila v. 

Quarterman, 560 F.3d 299, 307-308 (5th Cir. 2009)) 

• Knowledge gained by the Sexual Assault Response Team (SART) 

was imputed to the prosecution because SART was acting on the 

government’s behalf (Kyles v. Whitley, 514 U.S. 419, 437, 115 S. 

Ct. 1555, 1567, 131 L. Ed. 2d 490, 508 (1995)) and was assisting 

the government (People v. Superior Court (Barrett) (2000) 80 Cal. 

App.4th 1305, 1315): 

• “We reject any suggestion that the SART exam here was not 

investigative. It was clearly spearheaded by the police, who 

advised Ritter of a report of alleged sexual abuse in which 


Anna was the victim. A major purpose of the examination was 

to determine whether the allegation could be corroborated 

with physical findings. Ritter collected and preserved physical 

evidence, consistent with statutory protocol. [citation omitted] 

And according to her practice–after completion of the SART 

examination and after she and Dr. Kerns reach [sic] concurrence as 

to their findings as contained in the written report–Ritter provided 

a copy of the forensic report to the police. [citation omitted]” 

(People v. Uribe (2008) 162 Cal.App.4th 1457, 1479) 

• In United States v. Giffen, 379 F.Supp.2d 337, 343 (S.D.N.Y. 

2004), the Government was only required to disclose CIA and 

Department of State documents it had actually reviewed. 

• The California Supreme Court rejected the argument that the 

prosecution was required under Brady to produce defenserequested 

information of all incidents of mistakes in testing DNA 

by a private laboratory. The Court relied on the impossibility 

of contaminating transfers in this case and the availability (and 

actuality) of defense testing of the DNA. Although the Court 

expressly did not decide the question whether the private 

laboratory was a member of the prosecution team for all purposes, 

in effect it ruled that it was not. (People v. Cordova (2015) 62 

Cal.4th 104, 124-125) 

Imagine the following. The civil attorney for the 

alleged victim cherry picks the investigation 

performed for the civil suit and delivers it to the 

prosecution, without the warts. Then the civil 

attorney educates the deputy District Attorney in the 

applicable civil law while the prosecutor instructs the 

civil lawyer in the elements of the intended charges, 

so that the civil lawyer can incorporate them into 

the civil discovery plan. The civil attorney uses that 

knowledge when depositions are conducted, after 

which the lawyer gives the prosecutor copies of the 

deposition transcripts, highlighting the salient parts. 

The prosecutor tells the civil attorney to engage a 

certain kind of forensic expert who will be necessary 

in the criminal case, and hints at the expectation that 


the civil attorney or the alleged victim will pay for the 

expert. 

The question: Is the civil attorney a member of the 

prosecution team? 

You subpoena records from the civil attorney and 

demand discovery on these matters from the District 

Attorney. They are opposed on the bases that the 

alleged victim’s lawyer cannot be labeled a member 

of the prosecution team and that your inquiry 

violates the constitutional rights of the alleged 

victim (in California, specifically Cal. Const. Art. I, § 

28, subd. (b)(6), the right “to reasonably confer with 

the prosecuting agency, upon request, regarding the 

arrest of the defendant… [and] the charges filed…”). 

Who prevails? 

The more that people are involved with the 

prosecution, the more likely that they will be held to 

be team members. 

“Interacting with the prosecution team, without 

more, does not make someone a team member. 

Stewart, 323 F. Supp. 2d at 616-18. Instead, under 

the totality of the circumstances, the more involved 

individuals are with the prosecutor, the more likely 

they are team members. Stewart, 323 F. Supp. 2d at 

616-18. Among many others, these circumstances 

include whether the individual actively investigates 

the case, acts under the direction of the prosecutor, 

or aids the prosecution in crafting trial strategy. 

See, e.g., United States v. Diaz, 176 F.3d 52, 106-07 

(2d Cir. 1999). In some cases, when an individual 

is significantly involved with the prosecution, 

the presence of a single factor may warrant 

imputation. Cf. United States v. Stein, 488 F. Supp. 2d 

350, 364 (S.D.N.Y. 2007) (holding that materials in 


corporation’s files are within government’s “control” 

for Rule 16 purposes because of cooperation 

agreement). In other cases, when an individual’s 

involvement is minor, even the presence of many 

factors will not warrant imputation. See, e.g., Stewart, 

323 F. Supp. 2d at 616-18. Ultimately, no single factor 

is the touchstone for imputation. Bin Laden, 397 F. 

Supp. 2d at 481.” 

United States v. Meregildo, 920 F. Supp. 2d 434, 441-442 

(S.D.N.Y. 2013) 

The answer to the question will depend on how many 

facts the criminal defense attorney can develop to 

support the argument that the civil attorney is a mere 

agent of the prosecution. Criminal discovery should 

seek answers to these questions: 

> Did the alleged victim pay any of the investigative 

costs, including experts the prosecution will use? 

> Did the plaintiff’s attorney ask the police or District 

Attorney for assistance in the civil discovery process? 

> Did the plaintiff’s attorney have any agreement with 

the District Attorney or other agency? 

> Did the police or District Attorney ask the civil 

attorney to gather evidence, interview witnesses, or 

find specific witnesses for law enforcement or the 

prosecution? 

> Did the police or District Attorney suggest particular 

questions to be asked at the deposition of the 

defendant or others? Were said questions asked? 

> Did the civil attorney provide deposition transcripts 

to the District Attorney or law enforcement? (Examine 


the actual transcripts – were they underlined or 

highlighted by the civil attorney?) 

> Did the District Attorney request that the alleged 

victim engage a particular type of expert witness to 

be used by the prosecution? Was the alleged victim to 

pay for the expert? 

> Was there cooperation between the civil attorney 

and the prosecution in working the elements of the 

criminal charges into the civil discovery plan? 

> Did the alleged victim or their civil attorney give the 

prosecution schooling in the alleged victim’s industry 

or in the applicable civil law? 

> Was strategy discussed by the civil attorney and the 

prosecution? 

In other words, this battle can only be won by an 

aggressive use of the available discovery tools seeking 

fact-specific evidence of collaboration between the 

civil attorney and the prosecution. 


9. “What Did They Know, and When Did They Know 

It?” 

• A defendant is entitled to discovery relating to when the 

prosecution first learned of potentially impeaching evidence 

pertaining to a government witness. (United States v. Espinosa- 

Hernandez, 918 F.2d 911, 913-914 (11th Cir. 1990)) 

m “Depending upon when this information was learned, 

Espinosa might succeed in obtaining a new trial based upon 

the government’s failure to disclose evidence that could have 

been used to impeach a government witness.” (United States v. 

Espinosa-Hernandez, 918 F.2d 911, 914 (11th Cir. 1990)) 

When Brady misconduct is prosecuted as a crime, one 

of the elements to be proved is bad faith. Then the 

question of when the prosecutor first learned of the 

material could be critical. For example, a prosecutor 

who was made aware of the information early and 

chose to suppress it is more likely to be found to 

have been acting in bad faith than a prosecutor who 

disclosed the material more rapidly after learning of it. 

Insist on discovery of all formal and informal 

notifications of suspected Brady violations. For 

example, a forethinking Public Defender sent a letter 

to the District Attorney chronicling the deficiencies 

of Reilly, the sniffer dog, which resulted in a finding of 

Brady suppression in a later case (Aguilar v. Woodford, 

725 F.3d 970, 981-982 (9th Cir. 2013)) 

Did the police agency provide the District with a 

“Brady list”? See California Attorney General’s Opinion 

12-401, which holds that the California Highway Patrol 

may lawfully release to a District Attorney’s Office 

Brady list information, including the names of officers 

against whom findings of dishonesty, moral turpitude, 

or bias have been sustained, and the dates of the 

earliest such conduct, without violating Cal. Penal 


68 | The Brady Book 

Code § 832.7(a), which provides that peace officer 

personnel records are confidential and may not be 

disclosed without a court order.) (98 Ops.Cal.Atty.Gen. 

54 (2013))

10. When Disclosure Must Be Made 

• “The more a piece of evidence is valuable and rich with potential 

leads, the less likely it will be that late disclosure provides the 

defense an ‘opportunity for use.’ “ (DiSimone v. Phillips, 461 F.3d 

181, 197 (2d Cir. 2006)) 

• The Government’s duty of disclosure, and its duty to articulate 

its discovery, may be greater the closer it gets to trial: in this case 

the Government buried a 2-page memo in 5 reams of documents 

3 days before trial. (United States v. Gil, 297 F.3d 93, 106 (2d Cir. 

2002)) 

• “When such a disclosure is first made on the eve of trial, or when 

trial is under way, the opportunity to use it may be impaired. The 

defense may be unable to divert resources from other initiatives 

and obligations that are or may seem more pressing. And the 

defense may be unable to assimilate the information into its 

case. See United States v. Cobb, 271 F. Supp. 159, 163 (S.D.N.Y. 

1967) (Mansfield, J.) (‘There may be instances where disclosure 

of exculpatory evidence for the first time during trial would be 

too late to enable the defendant to use it effectively in his own 

defense, particularly if it were to open the door to witnesses or 

documents requiring time to be marshalled and presented.’).” (Leka 

v. Portuondo, 257 F.3d 89, 101 (2d Cir. 2001)) 

• Disclosure of Brady material is supposed to be made at a time when 

it would be of value to the accused. (Gantt v. Roe, 389 F.3d 908, 912 

(9th Cir. 2004)) 

• “It would eviscerate the purpose of the Brady rule and encourage 

gamesmanship were we to allow the government to postpone 

disclosures to the last minute, during trial. As the Second Circuit 

noted in Leka v. Portuondo, 257 F.3d 89, 101 (2d Cir. 2001), the 

belated disclosure of Brady material ‘tend[s] to throw existing 

strategies and [trial] preparation into disarray.’ It becomes ‘difficult 

[to] assimilate new information, however favorable, when a trial 

already has been prepared on the basis of the best opportunities 

and choices then available.’ Id. See also United States v. Devin, 918 

F.2d 280, 290 (1st Cir. 1990) (explaining that a Brady violation 

would occur if delayed disclosure altered defense strategy and 


timely disclosure would likely have resulted in a more effective 

strategy). If a defendant could never make out a Brady violation on 

the basis of the effect of delay on his trial preparation and strategy, 

this would create dangerous incentives for prosecutors to withhold 

impeachment or exculpatory information until after the defense has 

committed itself to a particular strategy during opening statements 

or until it is too late for the defense to effectively use the disclosed 

information. It is not hard to imagine the many circumstances in 

which the belated revelation of Brady material might meaningfully 

alter a defendant’s choices before and during trial: how to apportion 

time and resources to various theories when investigating the case, 

whether the defendant should testify, whether to focus the jury’s 

attention on this or that defense, and so on. To force the defendant 

to bear these costs without recourse would offend the notion of fair 

trial that underlies the Brady principle.” (United States v. Burke, 571 

F.3d 1048, 1054 (10th Cir. 2009)) 

• The Circuits are in conflict over whether there is a due process 

obligation to disclose exculpatory information to avoid prolonged 

pretrial detention. (Livers v. Schenck, 700 F.3d 340, 359 (8th Cir. 

2012)) 

m An argument can be made that when investigators fail to 

disclose potentially dispositive exculpatory evidence to 

prosecutors, leading to lengthy detention of an innocent man, 

they violate not Brady but the due process guarantees of the 

14th Amendment. (Baker v. McCollan, 443 U.S. 137, 145, 99 S. 

Ct. 2689, 2695, 61 L. Ed. 2d 433, 442 (1979); Tatum v. Moody, 

768 F.3d 806, 816 (9th Cir. 2014)) 

• Defendants have a 14th Amendment due process right to 

Brady disclosure in connection with preliminary hearings, and 

suppression of such materials constitutes the deprivation of a 

substantial right. (People v. Gutierrez (2013) 214 Cal.App.4th 343, 

350-351) 

• The Brady duty is an ongoing responsibility, extending throughout 

the duration of the trial and even after conviction. (In re Pratt 

(1999) 69 Cal.App.4th 1294, 1312) 

m The duty to preserve and disclose evidence under Brady may 

be raised at a probation revocation hearing. (People v. Moore 


(1983) 34 Cal.3d 215, 223-224) 

• In the Eighth Circuit, Brady disclosure is not required pretrial, and 

due process is satisfied if the information is furnished before it is 

too late to use during trial. (United States v. Almendares, 397 F.3d 

653, 664 (8th Cir. 2005); United States v. Dunn, 723 F.3d 919, 927 

(8th Cir. 2013)) 

In a claim of delayed disclosure, be prepared to show 

(1) specific prejudice “beyond a mere assertion” and 

(2) a reasonable probability that, had it been disclosed 

timely, the result would have been different. (United 

States v. Delgado-Marrero, 744 F.3d 167, 199 (1st Cir. 

2014)) 


11. Suppression of Brady Material 

• “Thus, the terms ‘suppression,’ ‘withholding,’ and ‘failure to disclose’ 

have the same meaning for Brady purposes.” (Benn v. Lambert, 283 

F.3d 1040, 1053 (9th Cir. 2002)) 

• The defense is entitled to rely on “the presumption that the 

prosecutor would fairly perform his duty to disclose all exculpatory 

materials.” (Strickler v. Greene, 527 U.S. 263, 283, 119 S. Ct. 1936, 

1949, 144 L. Ed. 2d 286, 303 (1999)) 

• The fact that the defense could and should have discovered the 

Brady material does not absolve the prosecution of its Brady 

responsibilities. (Gantt v. Roe, 389 F.3d 908, 912 (9th Cir. 2004)) 

• “…[I]nformation actually known by the defendant falls outside 

the Brady rule.” (United States v. Roane, 378 F.3d 382, 402 (4th Cir. 

2004)) 

• “Awareness of the information purportedly suppressed neutralizes 

any… impropriety for purposes of a Brady claim implicating 

evidence of that information.” (Reed v. Stephens, 739 F.3d 753, 782- 

783 (5th Cir. 2014)) 

• The defense may rely on the prosecution’s averments that it 

possessed no Brady material. (Frost v. Gilbert, 835 F.3d 883, 889-890 

(9th Cir. 2016)) 

• “…[I]f a prosecutor asserts that he complies with Brady through 

an open file policy, defense counsel may reasonably rely on that 

file to contain all materials the State is constitutionally obligated to 

disclose under Brady.” (Strickler v. Greene, 527 U.S. 263, 283, 119 S. 

Ct. 1936, 1949, 144 L. Ed. 2d 286, 303, n.23 (1999)) 

• There was no Brady violation when the evidence was available 

to the defense from other sources or through diligent defense 

investigation. (United States v. Higgs, 663 F.3d 726, 735 (4th Cir. 

2011)) 

• No suppression was found when the information was “in a source 

where a reasonable defendant would have looked.” (United States v. 

Wilson, 901 F.2d 378, 381 (4th Cir. 1990)) 

• “The prosecutor’s obligation under Brady is not excused by a 


defense counsel’s failure to exercise diligence with respect to 

suppressed evidence. However, defense counsel cannot lay a trap 

for prosecutors by failing to use evidence of which defense counsel 

is reasonably aware for, in such a case, the jury’s verdict of guilty 

may be said to arise from defense counsel’s stratagem, not the 

prosecution’s failure to disclose. In such a case, the prosecution’s 

failure to disclose Brady or Giglio evidence would not ‘deprive 

the defendant of a fair trial,’ Bagley, 473 U.S. at 675.” (Amado v. 

Gonzalez, 758 F.3d 1119, 1135 (9th Cir. 2014)) 

• “A defendant furnished with such inculpatory evidence by the state 

is not required to assume that the state has concealed material 

information and has thereby obligated him to ascertain the Brady 

material on his own. In the case before us, moreover, the state not 

only failed to disclose the crucial information about the accidental 

nature of the fire, but it actually misled the defense by disclosing 

a part of the experts’ findings that, read alone, would lead to a 

conclusion directly opposite to the one they reached.” (Benn v. 

Lambert, 283 F.3d 1040, 1062 (9th Cir. 2002)) 

• If a search of public records could reveal the same information, 

there is no Brady violation. (Grant v. Lockett, 709 F.3d 224, 231 (3d 

Cir. 2013)) 

For an excellent example of the illogic of “the doctrine 

of equal availability to the defense,” see In re Pratt 

(1999) 69 Cal.App.4th 1294: 

Noting the importance to Pratt of potential 

impeachment of Butler, the People assert that Pratt 

could and should have made a motion to unseal 

and inspect the probation officer’s report that 

was contained in the superior court file. However, 

we find no basis in law or logic to support the 

notion that Pratt was required to attempt to show 

good cause to inspect an otherwise confidential 

document when he had no idea what the document 

contained. 

In re Pratt (1999) 69 Cal.App.4th 1294, 1318 


Watch for prosecutors claiming that the defense 

could have discovered the evidence on its own, citing 

newspapers or internet searches. 

Document the request for Brady materials, and the 

prosecutorial response. 


12. Brady Suppression Excuses Procedural Default 

• When a Brady claim appears to be forfeited, the procedural default 

may be excused by that very suppression. (Frost v. Gilbert, 835 F.3d 

883, 889-890 (9th Cir. 2016)) 

• “…[A] petitioner shows ‘cause’ when the reason for his failure to 

develop facts in state-court proceedings was the State’s suppression 

of the relevant evidence.” (Banks v. Dretke, 540 U.S. 668, 691, 124 S. 

Ct. 1256, 1272, 157 L. Ed. 2d 1166, 1190 (2004)) 

• “Because Crawford could not have requested and received the GBI 

report until the time of his post-conviction proceedings, he has 

shown ‘cause’ to excuse any procedural bar.” (Crawford v. Head, 311 

F.3d 1288, 1327 (11th Cir. 2002)) 

• “If the District Attorney’s memorandum was not reasonably 

discoverable because it was concealed by Putnam County officials, 

and if that concealment, rather than tactical considerations, was 

the reason for the failure of petitioner’s lawyers to raise the jury 

challenge in the trial court, then petitioner established ample cause 

to excuse his procedural default under this Court’s precedents.” 

(Amadeo v. Zant, 486 U.S. 214, 222, 108 S. Ct. 1771, 1777, 100 L. 

Ed. 2d 249, 260 (1988)) 


13. Prosecutorial Intent: Irrelevant? 

• It does not matter whether the prosecutorial failure to disclose 

exculpatory evidence was intentional, negligent or inadvertent. 

(Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-1197, 10 L. 

Ed. 2d 215, 218 (1963); People v. Kasim (1997) 56 Cal.App.4th 1360, 

1381) 

• The prosecutor’s ignorance of the existence of the police officer’s 

exculpatory firearms worksheet (which constituted Brady material 

since it recorded the fact that the firearm was inoperable) did not 

excuse the state’s failure to produce it since Brady holds that the 

good or bad faith of the prosecution is irrelevant to the due process 

inquiry. (United States ex rel. Smith v. Fairman, 769 F.2d 386, 391 

(7th Cir. 1985)) 

• The prosecutor’s motives and purpose in failing to provide Brady 

material are irrelevant. (People v. Ruthford (1975) 14 Cal.3d 399, 

406 (overruled on other grounds, 9 Cal.4th 535); People v. Boyd 

(1990) 222 Cal.App.3d 541, 569) 

• Even an inadvertent failure to disclose exculpatory evidence may 

constitute a Brady violation. (United States v. Agurs, 427 U.S. 97, 

110, 96 S. Ct. 2392, 2400, 49 L. Ed. 2d 342, 353 (1976); Bailey v. Rae, 

339 F.3d 1107, 1114 (9th Cir. 2003)) 

Prosecutorial intentions are still relevant. 

“The basic principle is clear enough: the government 

is obliged to disclose pertinent material evidence 

favorable to the defense, and this applies not only to 

matters of substance, but to matters relating to the 

credibility of government witnesses. Giglio v. United 

States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 

(1972); Napue v. Illinois, 360 U.S. 264, 3 L. Ed. 2d 1217, 

79 S. Ct. 1173 (1959); United States v. Hibler, 463 F.2d 

455, 460 (9th Cir. 1972); Loraine v. United States, 396 

F.2d 335 (9th Cir. 1968), cert. denied 393 U.S. 933, 

21 L. Ed. 2d 270, 89 S. Ct. 292. There is a subsidiary 

principle: the government’s motives in suppressing 

evidence may be material in determining whether 


a new trial is necessary. True, if the suppressed 

evidence is of unquestionable materiality, the 

government is not saved by good motives. Brady 

v. Maryland, 373 U.S. 83, at 87, 10 L. Ed. 2d 215, 83 

S. Ct. 1194 (1963). On the other hand, when the 

suppressed evidence is of less obvious materiality, 

improper prosecutorial motives may be relevant 

for one of two reasons. The fact that a prosecutor 

intentionally fails to perform his duty may be 

regarded as an admission that performance would 

injure the government’s case; an admission, so to 

speak, of prejudice which might, particularly in close 

cases, tip the scales. See, e.g., Napue v. Illinois, ante, 

360 U.S. at 270. Alternatively, even though we could 

not be persuaded that the defendant had been 

seriously prejudiced, if the prosecutorial conduct 

was censorable†we might reverse a conviction in 

the interest of keeping the administration of justice 

beyond the ‘suspicion of reproach,’ or, perhaps, 

as a prophylactic against willful prosecutorial 

misconduct. Kyle v. United States, 297 F.2d 507, 514 

(2d Cir. 1961); see Mooney v. Holohan, 294 U.S. 103, 

112-13, 79 L. Ed. 791, 55 S. Ct. 340 (1935); cf. Weeks v. 

United States, 232 U.S. 383, 58 L. Ed. 652, 34 S. Ct. 341 

(1914).” 

United States v. Gerard, 491 F.2d 1300, 1302-1303 (9th 

Cir. 1974) 

“In United States v. Mitchell, we held that while ‘as a 

legal matter, the question of good faith versus bad 

faith is a distinction without a difference in the Brady 

context,’ ‘the existence of bad faith on the part of the 

prosecution is probative of materiality because it is 

“doubtful that any prosecutor would in bad faith act 

to suppress evidence unless he or she believed it 

could affect the outcome of the trial.” ‘ 365 F.3d 215, 

255 (3d Cir. 2004) (quoting United States v. Jackson, 

780 F.2d 1305, 1311 n.4 (7th Cir. 1986)). We believe 


that bad faith may be of additional relevance in the 

context of choosing a remedy for a Brady violation.” 

Virgin Islands v. Fahie, 419 F.3d 249, 253, n.5 (3d Cir. 

2005) 

• In California it is a felony for a prosecutor to intentionally and in 

bad faith withhold relevant exculpatory material or information 

with the specific intent that it be concealed or destroyed. (Cal. 

Penal Code §141(c)) 

If the trend to criminalize aggravated Brady error 

continues, it will be critical to adduce evidence of bad 

faith, since that is an element of the offense. 


14. Flipping the Burden 

• The fact that the defense could and should have discovered the 

Brady material does not absolve the prosecution of its Brady 

responsibilities. (Gantt v. Roe, 389 F.3d 908, 912 (9th Cir. 2004)) 

• The California Supreme Court has added a requirement that a 

defendant hoping to succeed in a Brady claim must prove that he 

was actually unaware of the evidence and could not have discovered 

it by the exercise of reasonable diligence. (People v. Morrison (2004) 

34 Cal.4th 698, 715: People v. Salazar (2005) 35 Cal.4th 1031, 1049: 

People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 715) 

• For its holding in People v. Morrison (2004) 34 Cal.4th 698, 715, the 

California Supreme Court incorporated law from the Fifth, Eighth 

and Eleventh Circuits, while ignoring Ninth Circuit law on the 

point: “While the defense could have been more diligent…this does 

not absolve the prosecution of its Brady responsibilities.” (Gantt v. 

Roe, 389 F.3d 908, 912-913 (9th Cir. 2004)) 

• In some circuits this has been described as the Brady motion’s 

fourth element. “But there is also a fourth prerequisite for a 

successful Brady claim.” (DiSimone v. Phillips, 461 F.3d 181, 187 (2d 

Cir. 2006)) 

• “Evidence is not ‘suppressed’ if the defendant either knew, or 

should have known, of the essential facts permitting him to take 

advantage of any exculpatory evidence. (citations omitted)” 

(DiSimone v. Phillips, 461 F.3d 181, 197 (2d Cir. 2006): see also 

United States v. Perdomo, 929 F.2d 967, 973 (3d Cir. 1991)) 

• The “knew” prong is subjective and the “should have known” prong 

is objective (that is, if a reasonable defense attorney should have 

known the relevant facts, the prosecution’s failure to disclose does 

not implicate Brady). (Lewis v. Conn. Comm’r of Corr., 790 F.3d 109, 

121 (2d Cir. 2015)) 

• “Our decisions lend no support to the notion that defendants 

must scavenge for hints of undisclosed Brady material when the 

prosecution represents that all such material has been disclosed.” 

(Banks v. Dretke, 540 U.S. 668, 695, 124 S. Ct. 1256, 1275, 157 L. Ed. 

2d 1166, 1192 (2004)) 


• The defense counsel has no obligation to assert constitutional 

error based on mere suspicion. (Banks v. Dretke, 540 U.S. 668, 

695-696, 124 S. Ct. 1256, 1275, 157 L. Ed. 2d 1166, 1192 (2004)) 

Thus, reliance on the prosecutor’s representations should trump the 

argument that there existed some hint of misconduct which should 

have triggered the defense to act. 

• Referring to Banks v. Dretke, 540 U.S. 668, 124 S. Ct. 1256, 157 

L. Ed. 2d 1166 (2004), it has been held that the burden-shifting 

prosecution argument of due-diligence has been “rebuked” by 

the United States Supreme Court: “This ‘due diligence’ defense 

places the burden of discovering exculpatory information on the 

defendant and releases the prosecutor from the duty of disclosure. 

It relieves the government of its Brady obligations. In its latest 

case on the issue, however, the Supreme Court rebuked the Court 

of Appeals for relying on such a due diligence requirement to 

undermine the Brady rule.” (United States v. Tavera, 719 F.3d 705, 

711 (6th Cir. 2013)) 

• The Ninth Circuit has given a spirited refutation of the burdenshifting 

argument. “The [California] Court of Appeal’s requirement 

of due diligence would flip that obligation, and enable a prosecutor 

to excuse his failure by arguing that defense counsel could have 

found the information himself. The proposition is contrary to 

federal law as clearly established by the Supreme Court, see Early, 

537 U.S. at 8, and unsound public policy. Especially in a period of 

strained public budgets, a prosecutor should not be excused from 

producing that which the law requires him to produce, by pointing 

to that which conceivably could have been discovered had defense 

counsel expended the time and money to enlarge his investigations. 

No Brady case discusses such a requirement, and none should be 

imposed. See Banks, 540 U.S. at 691 (setting forth the essential 

elements of a Brady claim).” (Amado v. Gonzalez, 758 F.3d 1119, 

1136-1137 (9th Cir. 2014)) 

• That court documents containing the material were available in the 

public record doesn’t diminish the state’s Brady obligation, when 

the defendant doesn’t have enough information to find the material 

with reasonable diligence. (Milke v. Ryan, 711 F.3d 998, 1017-1018 

(9th Cir. 2013)) 


• The prosecutor has a duty to disclose exculpatory information even 

when it comes from a defense witness. “We regard as untenable 

a broad rule that any information possessed by a defense witness 

must be considered available to the defense for Brady purposes. 

To begin with, it is simply not true that a reasonably diligent 

defense counsel will always be able to extract all the favorable 

evidence a defense witness possesses. Sometimes, a defense witness 

may be uncooperative or reluctant. Or, the defense witness may 

have forgotten or inadvertently omitted some important piece of 

evidence previously related to the prosecution or law enforcement. 

Or, as may have been the case here, the defense witness learned of 

certain evidence in the time between when she spoke with defense 

counsel and the prosecution.” (Boss v. Pierce, 263 F.3d 734, 740 (7th 

Cir. 2001)) 

• There is a different analysis if the withheld Brady material is a 

document as opposed to a matter arguably within the defense 

attorney’s knowledge. “Because mind-reading is beyond the 

abilities of even the most diligent attorney, such material simply 

cannot be considered available in the same way as a document. But, 

the position the state advances would require a defense witness’s 

knowledge to be treated exactly as information in a document the 

defense possesses. This stretches the concept of reasonable diligence 

too far.” (Boss v. Pierce, 263 F.3d 734, 741 (7th Cir. 2001)) 

Turning the burden back onto the defense carries with 

it pitfalls for the defense attorney. The attorney must 

aver that he or she was understandably ignorant of 

the undisclosed information and that it would have 

altered strategic decisions. 

The very Brady request itself has been used by 

prosecutors to ascribe knowledge to the defense 

attorney, when the demand was specific. (DiSimone v. 

Phillips, 461 F.3d 181, 197 (2d Cir. 2006)) 


16. Brady Versus Police Privacy 

• The California Supreme Court has addressed the issue of Brady 

access in light of the confidentiality afforded to police personnel 

records (Pitchess refers to the California procedure whereby one 

can seek impeachment materials in an officer’s personnel file after 

in camera judicial review. (Pitchess v. Superior Court (1974) 11 

Cal.3d 531; Cal. Evid. Code § 1043, et seq.)) 

• “For these reasons, we conclude that, under these 

circumstances, permitting defendants to seek Pitchess 

discovery fully protects their due process rights under 

Brady, supra, 373 U.S. 83, to obtain discovery of potentially 

exculpatory information located in confidential personnel 

records. The prosecution need not do anything in these 

circumstances beyond providing to the defense any 

information it has regarding what the records might contain – 

in this case providing the defense the information it received 

from the police department.” (People v. Superior Court 

(Johnson) (2015) 61 Cal.4th 696, 721-722)) 

• Even the statutory 5-year window for disclosure of Pitchess material 

can be broken by the mandate of Brady: 

“It is true, as defendant notes, that in some ways the Pitchess 

statutory scheme is potentially narrower than Brady’s 

requirements. For example, Evidence Code section 1045, 

subdivision (b)(1), places a five-year limitation on the 

disclosure of certain information. However, because the 

‘ “Pitchess process” operates in parallel with Brady and 

does not prohibit the disclosure of Brady information,’ all 

information that the trial court finds to be exculpatory and 

material under Brady must be disclosed, notwithstanding 

Evidence Code section 1045’s limitations. (City of Los Angeles, 

supra, 29 Cal.4th at p. 14.)” (People v. Superior Court (Johnson) 

(2015) 61 Cal.4th 696, 720)) 

• Either party may file a Pitchess motion, and both must also follow 

the Pitchess procedures to obtain information in the records. 

(People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 716) 

• The duty of disclosure under Brady extends to evidence that could 


impeach peace officers. (People v. Gaines (2009) 46 Cal.4th 172, 184) 

• Sustained citizen complaints of officer misconduct contain 

admissible impeachment evidence and should be disclosed under 

Brady. (People v. Jordan (2003) 108 Cal.App.4th 349, 362) 

• The prosecution does not have to file a Pitchess motion to discharge 

its Brady obligation, however. 

m “Because a defendant may seek potential exculpatory 

information in those personnel records as well as the 

prosecution, the prosecution fulfills its Brady obligation if it 

shares with the defendant any information it has regarding 

whether the personnel records contain Brady material, and 

then lets the defense decide for itself whether to file a Pitchess 

motion. In this case, this means the prosecution fulfilled its 

obligation when it informed defendant of what the police 

department had told it, namely, that the personnel records of 

the officers in question might contain Brady material, and that 

the officers are important witnesses.” (People v. Superior Court 

(Johnson) (2015) 61 Cal.4th 696, 716) 

• See also California Attorney General’s Opinion 12-401, which holds 

that the California Highway Patrol may lawfully release to a District 

Attorney’s Office Brady list information, including the names of 

officers against whom findings of dishonesty, moral turpitude, or 

bias have been sustained, and the dates of the earliest such conduct, 

without violating Cal. Penal Code § 832.7(a), which provides that 

peace officer personnel records are confidential and may not be 

disclosed without a court order. (98 Ops.Cal.Atty.Gen. 54 (2015)) 

• Brady and Pitchess have different standards of materiality. 

m “Unlike the high court’s constitutional materiality standard 

in Brady, which tests whether evidence is material to the 

fairness of trial, a defendant seeking Pitchess disclosure must, 

under statutory law, make a threshold showing of ‘materiality’ 

( Evid. Code, § 1043, subd. (b).) Under Pitchess, a defendant 

need only show that the information sought is material ‘to the 

subject matter involved in the pending litigation.’ (Evid. Code, 

§ 1043, subd. (b)(3).) Because Brady’s constitutional materiality 

standard is narrower than the Pitchess requirements, any 

citizen complaint that meets Brady’s test of materiality 


necessarily meets the relevance standard for disclosure under 

Pitchess. (Evid. Code, § 1045, subd. (b).)” (City of Los Angeles v. 

Superior Court (Brandon) (2002) 29 Cal.4th 1, 10)) 


17. Brady Analysis 

1) Post-Conviction Brady Analysis 

• A three part test is used to determine on post-conviction review 

whether a failure to disclose amounted to a Brady violation: 

(1) The evidence at issue must be favorable to the accused, either 

because it is exculpatory or because it is impeaching; 

(2) The evidence must have been suppressed by the state, either 

willfully or inadvertently; and 

(3) Prejudice must have ensued. The evidence is considered 

material if there is a reasonable probability that, had the 

suppressed evidence been disclosed, a different result would 

have obtained. 

(Strickler v. Greene, 527 U.S. 263, 281-282, 119 S. Ct. 1936, 1948, 

144 L. Ed. 2d 286, 302 (1999); In re Pratt (1999) 69 Cal.App.4th 

1294, 1312) 

2) Pre-Conviction Brady Analysis 

• The scope of the prosecutor’s duty to disclose, pre-conviction, 

presents a different question than does a post-conviction postmortem 

analysis. Before trial the prosecutor is not the “gate 

keeper” deciding issues of materiality, where disclosure should be 

based on an assessment of whether or not the ultimate outcome 

will be effected. Simply stated, the prosecution must disclose any 

potentially favorable evidence. 

Even eminent jurists have confused the scope of the 

duty, pre-conviction, with post-conviction review (e.g., 

In re Sassounian (1995) 9 Cal.4th 535, 543) 

One judge who does understand the difference 

between the duty of disclosure and post-conviction 

review is the Honorable Paul L. Friedman, Judge of the 

United States District Court, District of Columbia. In 

United States v. Safavian, ruling on pretrial discovery 

issues, Judge Friedman articulated the distinction: 


“The problem with this iteration of Brady and the 

government’s view of its obligations at this stage 

of the proceedings, however, is that it permits 

prosecutors to withhold admittedly favorable 

evidence whenever the prosecutors, in their wisdom, 

conclude that it would not make a difference to the 

outcome of the trial. Most prosecutors are neither 

neutral (nor should they be) nor prescient, and any 

such judgment necessarily is speculative on so many 

matters that simply are unknown and unknowable 

before trial begins: which government witnesses 

will be available for trial, how they will testify and be 

evaluated by the jury, which objections to testimony 

and evidence the trial judge will sustain and which 

he will overrule, what the nature of the defense 

will be, what witnesses and evidence will support 

that defense, what instructions the court ultimately 

will give, what questions the jury may pose during 

deliberations (and how they may be answered), and 

whether the jury finds guilt on all counts or only on 

some (and which ones). 

“The prosecutor cannot be permitted to look at 

the case pretrial through the end of the telescope 

an appellate court would use post-trial. Thus, the 

government must always produce any potentially 

exculpatory or otherwise favorable evidence without 

regard to how the withholding of such evidence 

might be viewed--with the benefit of hindsight-- 

as affecting the outcome of the trial. The question 

before trial is not whether the government thinks 

that disclosure of the information or evidence it is 

considering withholding might change the outcome 

of the trial going forward, but whether the evidence 

is favorable and therefore must be disclosed. Because 

the definition of ‘materiality’ discussed in Strickler and 

other appellate cases is a standard articulated in the 

post-conviction context for appellate review, it is not 


the appropriate one for prosecutors to apply during 

the pretrial discovery phase. 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. (citations omitted)” 

United States v. Safavian, 233 F.R.D. 12, 16 (D.D.C. 2005); 

See also United States v. Olsen, 704 F.3d 1172, 1183, n.3 

(9th Cir. 2013), quoting this passage. 

• “When there is substantial room for doubt, the prosecution is not 

to decide for the court what is admissible and for the defense what 

is useful.” (United States v. Hibler, 463 F.2d 455, 459-460 (9th Cir. 

1972)) 

• “In the first place, if there were questions about the reliability 

of the exculpatory information, it was the prerogative of the 

defendant and his counsel -- and not of the prosecution -- to 

exercise judgment in determining whether the defendant should 

make use of it. [Citations omitted] (‘If the evidence is favorable 

to the accused, * * * then it must be disclosed, even if the 

prosecution believes the evidence is not thoroughly reliable.’). To 

allow otherwise would be to appoint the fox as henhouse guard.” 

(DiSimone v. Phillips, 461 F.3d 181, 195 (2d Cir. 2006)) 

• It no longer makes a difference whether or not there was a request, 

or its specificity if there was one. (Kyles v. Whitley, 514 U.S. 419, 

433, 115 S. Ct. 1555, 1565, 131 L. Ed. 2d 490, 505 (1995)) 

California’s statutory framework requires production 

of all exculpatory evidence, unfiltered by any 

assessments of Brady materiality. 

“… California’s reciprocal discovery statute requires 

the prosecution to provide discovery of ‘[a]ny 

exculpatory evidence.’ (§ 1054.1, subd (e); see 

People v. Zambrano, supra, 41 Cal.4th at p. 1133.) 

This provision requires the prosecution to provide 


all exculpatory evidence, not just evidence that is 

material under Brady and its progeny. (Barnett v. 

Superior Court (2010) 50 Cal.4th 890, 901)” 

People v. Cordova (2015) 62 Cal.4th 104, 124 


18. The Intersection of Brady and Trombetta 

• A defendant enjoys 14th Amendment Due Process protection 

that potentially exculpatory evidence not be destroyed, upon a 

showing that the evidence did possess exculpatory value which was 

apparent before its destruction and that the defendant is not able to 

obtain comparable evidence by other reasonably available means. 

(California v. Trombetta, 467 U.S. 479, 486-488, 104 S. Ct. 2528, 

2534, 81 L. Ed. 2d 413, 422 (1984)) 

• “If, however, the evidence in question is only potentially useful, 

as opposed to clearly exculpatory, then a criminal defendant must 

prove bad faith on the part of the police to make out a due process 

violation. (See Arizona v. Youngblood, 488 U.S. 51, 57, 109 S. Ct. 

333, 102 L. Ed. 2d 281 (1988).” (United States v. Houston, 548 F.3d 

1151, 1155 (8th Cir. 2008)) 

• “But this right [the due process right articulated in Brady v. 

Maryland] would be empty if the government could trump it by the 

simple expedient of destroying evidence harmful to its theory of the 

case.” (Magraw v. Roden, 743 F.3d 1, 7 (1st Cir. 2014)) 

• “If [admissible evidence of false accusation] did or may well have 

existed but has been lost because of the Brady violation and the 

ensuing delay in discovery of this fact, Ellsworth may have a good 

claim to a new trial.” (Ellsworth v. Warden, N.H. State Prison, 333 

F.3d 1, 6 (1st Cir. 2003)) 

• Some courts have noted the differences between Brady claims and 

Trombetta issues: the latter have an additional requirement of a 

finding of bad faith, and are harder to remedy since granting a new 

trial does not restore the evidence. (United States v. Bakhtiar, 994 

F.2d 970, 975 (2d Cir. 1993)) 

• A government agency may exhibit bad faith if it has no reliable 

system for the preservation of evidence. (United States v. Bryant, 

439 F.2d 642, 652 (D.C. Cir. 1971)) The Court in Bakhtiar believed 

that this may survive the holding in Arizona v. Youngblood, 488 

U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988). (United States v. 

Bakhtiar, 994 F.2d 970, 975 (2d Cir. 1993)) 

• “…[W]e will look with an exceedingly jaundiced eye upon future 


efforts to justify nonproduction… by reference to ‘department 

policy’ or ‘established practice’ or anything of the like.” (United 

States v. Bufalino, 576 F.2d 446, 449 (2d Cir. 1978)) 

• “In addition to these practical justifications and constitutional 

considerations, the police’s obligation to turn over material and 

exculpatory evidence also follows inexorably from the Supreme 

Court’s recognition that the police have a constitutional duty 

to preserve such evidence. In Trombetta, the Supreme Court 

observed that ‘[w]hatever duty the Constitution imposes on the 

States to preserve evidence, that duty must be limited to evidence 

that might be expected to play a significant role in the suspect’s 

defense.’ 467 U.S. at 488. The Court recognized that same duty in 

Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 

281 (1988), confirming that the Constitution imposes at least a 

limited ‘obligation’ on the police ‘to preserve evidence . . . [that] 

could form the basis for exonerating the defendant.’ Id. at 58. If 

the Constitution imposes a ‘duty’ and ‘obligation’ on the police 

to preserve such evidence, that duty, no matter how limited, 

certainly must preclude the police from concealing that exact same 

information from the prosecutor, the defense, and the courts. 

Why else would the police be required to preserve such evidence 

if they had no attendant obligation to reveal its existence? Brady 

and Trombetta would impose hollow obligations indeed if the 

Constitution did not also preclude police officers from concealing 

the same evidence that they are not permitted to destroy and 

that the prosecutor is required to disclose.” (Moldowan v. City of 

Warren, 578 F.3d 351, 378-379 (6th Cir. 2009)) 

• A prosecutor who discovers facts supporting an old complaint 

of police officer misconduct, the records of which have been 

destroyed, still would have a Brady duty of disclosure. (City of Los 

Angeles v. Superior Court (Brandon) (2002) 29 Cal.4th 1, 12) 

Offer a missing evidence instruction. 

> “A missing-evidence instruction ‘is appropriate 

if it is peculiarly within the power of one party to 

produce the evidence and the evidence would 

elucidate a disputed transaction.’ West, 393 F.3d 


at 1309; see also United States v. Williams, 113 

F.3d 243, 245, 324 U.S. App. D.C. 290 (D.C. Cir. 

1997) (foundation for analogous missing-witness 

instruction). ‘When these two requirements are met, 

jurors may be instructed that the controlling party’s 

failure to produce the evidence permits them to 

draw the inference that the evidence would have 

been unfavorable to that party.’ Id.” 

United States v. Vega, 826 F.3d 514, 533 (D.C. Cir. 2016) 

> An appropriate instruction could include that 

records were destroyed and the jury may rely on 

that fact to infer that the records were harmful to the 

prosecution. (People v. Zamora (1980) 28 Cal.3d 88, 

102-103) 

> Consider the following instruction, which the 

trial court judge gave to the jury in Arizona v. 

Youngblood: 

“If you find that the state has allowed to be 

destroyed or lost any evidence whose content or 

quality are in issue, you may infer that the true fact is 

against the State’s interest.” 

Arizona v. Youngblood, 488 U.S. 51, 59-60, 109 S. Ct. 

333, 338, 102 L. Ed. 281, 290 (1988) 


19. Brady and the Plea Bargaining Stage 

• The Supreme Court has ruled that disclosure of Brady 

impeachment evidence is not required prior to entering a plea 

bargain. (United States v. Ruiz, 536 U.S. 622, 631-633, 122 S. Ct. 

2450, 2457, 153 L. Ed. 2d 586, 597 (2002)) 

m The Court in Ruiz was addressing material impeachment 

evidence only, and the decision should be limited to that: 

“First, impeachment information is special in relation to the 

fairness of a trial, not in respect to whether a plea is voluntary 

(‘knowing,’ ‘intelligent,’ and ‘sufficient[ly] aware’).” (United 

States v. Ruiz, 536 U.S. 622, 629, 122 S. Ct. 2450, 2455, 153 L. 

Ed. 2d 586, 595 (2002)) 

m “Thus, Ruiz indicates a significant distinction between 

impeachment information and exculpatory evidence of actual 

innocence. Given this distinction, it is highly likely that the 

Supreme Court would find a violation of the Due Process 

Clause if prosecutors or other relevant government actors have 

knowledge of a criminal defendant’s factual innocence but fail 

to disclose such information to a defendant before he enters 

into a guilty plea.” (McCann v. Mangialardi, 337 F.3d 782, 788 

(7th Cir. 2003)) 

m “Ruiz by its terms applies only to material impeachment 

evidence, and the high court emphasized that the government 

there had agreed to ‘provide “any information establishing 

the factual innocence of the defendant” regardless.’ (United 

States v. Ruiz, supra, 536 U.S. at p. 631.) Here, although 

the undisclosed evidence would indeed have served an 

impeachment function in petitioner’s penalty trial by casting 

doubt on the veracity of Saucedo’s testimony, in the context 

of the Hosey case the undisclosed evidence also would have 

tended to exculpate petitioner by showing that another person 

did the killing.” (In re Miranda (2008) 43 Cal.4th 541, 582) 

m The disagreement over Ruiz’s impact on impeachment versus 

exculpatory material was recognized in Robertson v. Lucas, 753 

F.3d 606, 621 (6th Cir. 2014). 

m The distinction between exculpatory evidence and 


impeachment evidence has been rejected in some decisions. 

“Conroy argues that the limitation of the Court’s discussion to 

impeachment evidence implies that exculpatory evidence is 

different and must be turned over before entry of a plea. Ruiz 

never makes such a distinction nor can this proposition be 

implied from its discussion.” (United States v. Conroy, 567 F.3d 

174, 179 (5th Cir. 2009)) 

• Earlier cases recognized the importance of Brady disclosure prior 

to entry of a plea: “The Government’s obligation to disclose Brady 

material is pertinent to the accused’s decision to plead guilty; the 

defendant is entitled to make that decision with full awareness of 

favorable (exculpatory and impeachment) evidence known to the 

Government. See United States v. Avellino, 136 F.3d 249, 255 (2d 

Cir. 1998), reh’g denied, 1998 U.S. App. LEXIS 7818 (2d Cir. 1998).” 

(United States v. Persico, 164 F.3d 796, 804 (2d Cir. 1999)) 


20. Does a Guilty Plea Automatically Waive a Brady 

Claim? 

• Due Process claims are generally waived by a guilty plea. (People v. 

Wakefield (1987) 194 Cal.App.3d 67, 70; People v. Avalos (1996) 47 

Cal.App.4th 1569, 1576) 

• Unless a post-plea attack is authorized, Brady may be violated with 

impunity. The pre-Ruiz cases left little doubt that a violation of 

Brady prior to plea could find a remedy: 

m “This exception to the general bar on constitutional claims 

is sensible, because ‘a defendant’s decision whether or not to 

plead guilty is often heavily influenced by his appraisal of the 

prosecution’s case.’ Miller, 848 F.2d at 1320. A waiver cannot be 

deemed ‘intelligent and voluntary’ if ‘entered without knowledge 

of material information withheld by the prosecution.’ Id. Moreover, 

if a defendant may not raise a Brady claim after a guilty plea, 

prosecutors may be tempted to deliberately withhold exculpatory 

information as part of an attempt to elicit guilty pleas. We therefore 

hold that a defendant challenging the voluntariness of a guilty plea 

may assert a Brady claim.” (Sanchez v. United States, 50 F.3d 1448, 

1453 (9th Cir. 1995)) 

m “In light of these decisions, as well as the importance to the 

integrity of our criminal justice system that guilty pleas be 

knowing and intelligent, we hold that, under certain limited 

circumstances, the prosecution’s violation of Brady can render 

a defendant’s plea involuntary.” (United States v. Wright, 43 F.3d 

491, 496 (10th Cir. 1994)) 

m “…[A] defendant challenging the voluntariness of the guilty 

plea may assert a Brady claim.” (Sanchez v. United States, 50 

F.3d 1448, 1453 (9th Cir. 1995)) This is so because a waiver 

cannot be ‘intelligent and voluntary’ if it is made without 

knowledge of material information which is being withheld 

by the prosecution and also for the reason that prosecutors 

otherwise could be tempted to deliberately withhold Brady 

information in order to promote guilty pleas. (Sanchez v. 

United States, 50 F.3d 1448, 1453 (9th Cir. 1995)) 

m A Brady violation may entitle a defendant to withdraw a guilty 


plea, if there was a reasonable probability that but for the 

failure to disclose Brady material the defendant would have 

refused the plea bargain and gone to trial. (United States v. 

Nagra, 147 F.3d 875, 881-882 (9th Cir. 1998)) 

m “Since a defendant’s decision whether or not to plead guilty is 

often heavily influenced by his appraisal of the prosecution’s 

case, (citation omitted) and of information that may be able to 

cast doubt on the fact or degree of his culpability, we conclude 

that even a guilty plea that was ‘knowing’ and ‘intelligent’ may 

be vulnerable to challenge if it was entered without knowledge 

of material evidence withheld by the prosecution.” (Miller v. 

Angliker, 848 F.2d 1312, 1320 (2d Cir. 1988)) 

m In evaluating the likelihood that the defendant would have not 

pled had the exculpatory evidence been revealed, “the test is an 

objective one, depending largely on the likely persuasiveness of 

the withheld information.” (Miller v. Angliker, 848 F.2d 1312, 

1320 (2d Cir. 1988)) 

m The following cases hold that a guilty plea waives a Brady 

claim: United States v. Conroy, 567 F.3d 174, 178 (5th Cir. 

2009); Smith v. United States, 876 F.2d 655, 657 (8th Cir. 1989) 

• “While neither the D.C. Circuit nor the Supreme Court has 

spoken on whether a defendant can withdraw his guilty plea postsentencing 

if he entered it without the government having disclosed 

exculpatory evidence it possessed, the majority of circuits to have 

considered the issue have held that a Brady violation can justify 

allowing a defendant to withdraw a guilty plea. See, e.g., United 

States v. Ohiri, 133 F. App’x 555, 562 (10th Cir. 2005); United States 

v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998); Sanchez v. United 

States, 50 F.3d 1448, 1453 (9th Cir. 1995); White v. United States, 

858 F.2d 416, 422 (8th Cir. 1988); Campbell v. Marshall, 769 F.2d 

314, 322-24 (6th Cir. 1985); cf. McCann v. Mangialardi, 337 F.3d 

782, 788 (7th Cir. 2003) (finding that it is likely that the Supreme 

Court would find that the government has an obligation to disclose 

exculpatory evidence at the plea stage).” (United States v. Nelson, 

979 F.Supp.2d 123, 129 (D.D.C. 2013)) 


Consider making a motion to withdraw a plea because 

of a later-found Brady violation. 

Cal. Penal Code section 1018 allows application for 

a change of plea within six months after a grant of 

probation for “good cause.” By its terms, trial courts 

are directed to give liberal instruction to the section 

in the interest of promoting justice. (People v. Superior 

Court of San Francisco (1974) 11 Cal.3d 793, 769-797) 

The test in determining whether a plea should stand 

is “whether the plea represents a voluntary and 

intelligent choice among the alternative courses of 

action open to the defendant.” (North Carolina v. Alford, 

400 U.S. 25, 31, 91 S. Ct. 160, 164, 27 L. Ed. 2d 162, 168 

(1970); see also People v. Howard (1992) 1 Cal.4th 1132, 

1175) 

In order to establish good cause to withdraw a 

guilty plea, the defendant must show that he was 

operating under mistake, ignorance or another factor 

overcoming the exercise of his free judgment. (People 

v. Huricks (1995) 32 Cal.App.4th 1201, 1208; In re Vargas 

(2000) 83 Cal.App.4th 1125, 1142) 

A plea is not knowingly and intelligently made when it 

is undertaken in ignorance of some critical knowledge 

supporting a defense. (People v. Harvey (1984) 151 Cal. 

App.3d 660, 670-671) Under Brady analysis, evidence 

is favorable if it hurts the prosecution or helps the 

defense. (People v. Morrison (2004) 34 Cal.4th 698, 714) 


21. Brady Work Product 

• Must prosecution work product be disclosed under Brady? The 

Supreme Court has not decided the point (although the Court did 

hold that merely because the witness statement was written by a 

prosecutor did not make it nonproducible under the Jencks Act, 18 

U.S.C. 3500). (Goldberg v. United States, 425 U.S. 94, 98, 96 S. Ct. 

1338, 1342, 47 L. Ed. 2d 603, 611, n.3 (1976)) 

• “ ‘Opinion work product’ encompasses all material that reflects 

an attorney’s mental impressions, conclusions, opinions, or legal 

theories.” (Williamson v. Moore, 221 F.3d 1177, 1182 (11th Cir. 

2000)) 

• “Thus, statements that merely reflect what a person said during an 

interview are not work product.” (People ex rel. Lockyer v. Superior 

Court (2000) 83 Cal.App.4th 387, 398, disapproved on another 

ground in 25 Cal.4th 703) 

• Attorney work product which contained witness statements was 

admissible if the witness adopted or approved the statement. 

(Goldberg v. United States, 425 U.S. 94, 101-102, 96 S. Ct. 1338, 

1344, 47 L. Ed. 2d 603, 613-614 (1976)) 

• “Rule 26 [Federal Rule of Civil Procedure 26] accords special 

protection to work product revealing the attorney’s mental 

processes. The Rule permits disclosure of documents and tangible 

things constituting attorney work product upon a showing of 

substantial need and inability to obtain the equivalent without 

undue hardship … Rule 26 goes on, however, to state that ‘[in] 

ordering discovery of such materials when the required showing 

has been made, the court shall protect against disclosure of the 

mental impressions, conclusions, opinions or legal theories of an 

attorney of other representative of a party concerning the litigation.’ 

“ (Upjohn Co. v. United States, 449 U.S. 383, 400, 101 S. Ct. 677, 688, 

66 L. Ed. 2d 584, 598 (1981)) 

• “It is clear that opinion work product is entitled to substantially 

greater protection than ordinary work product. Therefore, unlike 

ordinary work product, opinion work product can not [sic] be 

discovered upon a showing of substantial need and an inability to 

secure the substantial equivalent of the materials by alternate means 


without undue hardship. See Fed. R. Civ. P. 26(b)(3). In our view, 

opinion work product enjoys a nearly absolute immunity and can 

be discovered only in very rare and extraordinary circumstances. 

See Hickman v. Taylor, supra. Our unwillingness to recognize 

an absolute immunity for opinion work product stems from the 

concern that there may be rare situations, yet unencountered by 

this court, where weighty considerations of public policy and a 

proper administration of justice would militate against the nondiscovery 

of an attorney’s mental impressions.” (In re Murphy, 560 

F.2d 326, 336 (8th Cir. 1977)) 

• “For another thing, even if one reads the work-product exception 

literally, the Court’s problem disappears as long as courts can 

supplement Rule 16 discovery with discovery based upon other 

legal principles. The language of the work-product exception 

suggests the possibility of such supplementation, for it says, not 

that work product is ‘exemp[t]’ from discovery, ante, at 462, but 

that ‘this rule’ does not authorize discovery of the prosecutor’s work 

product. Fed. Rule Civ. Proc. 16(a)(2). The Advisory Committee’s 

Notes make clear that the Committee believed that other rules 

of law may authorize (or require) discovery not mentioned in 

the Rule. See, e. g., Advisory Committee’s Notes on Rule 16, 18 

U.S.C. App., pp. 762, 763 (discussion of Brady v. Maryland, 373 

U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), which the Rule 

does not codify); 18 U.S.C. App., p. 761 (‘[Rule 16] is intended to 

prescribe the minimum amount of discovery to which the parties 

are entitled. It is not intended to limit the judge’s discretion to 

order broader discovery in appropriate cases’); see also 2 C. Wright, 

Federal Practice and Procedure § 254, p. 81, and n. 60 (2d ed. 1982) 

(‘Because Brady is based on the Constitution, it overrides courtmade 

rules of procedure. Thus the work-product immunity for 

discovery in Rule 16(a)(2) prohibits discovery under Rule 16 but 

it does not alter the prosecutor’s duty to disclose material that is 

within Brady’) (footnotes omitted). …” (United States v. Armstrong, 

517 U.S. 456, 474-475, 116 S. Ct. 1480, 1491, 134 L. Ed. 2d 687, 704- 

705 (1996) Justice Souter, concurring) (emphasis in original) 

• Generally, a prosecutor’s opinions and mental impressions of the case 

are not discoverable under Brady unless they contain underlying 

exculpatory facts. (Morris v. Ylst, 447 F.3d 735, 742 (9th Cir. 2006)) 


• “Thus, while the prosecution did not have a duty to disclose the 

e-mail itself or the opinion work product in the e-mail, it did have a 

duty to disclose the non-cumulative ‘underlying exculpatory facts’ 

in the e-mail. See id. The same can be said with respect to other 

newly-disclosed information that is arguably opinion work product 

(e.g., the attorneys’ handwritten notes).” (United States v. Kohring, 

637 F.3d 895, 908 (9th Cir. 2011)) 

• “The fact that she had so much difficulty recalling details and had 

to be coached repeatedly would have been important impeachment. 

… So, while prosecutor O’Mara was not required to turn over his 

opinion that Hogue’s memory was bad, he was required to turn 

over any ‘underlying exculpatory facts’ such as her statements that 

she was unable to recall details or her statements that otherwise 

contradicted her testimony.” (Majors v. Warden, 2016 U.S. Dist. 

LEXIS 70099, at 83 (E.D.Cal. 2016)) 

• California law regarding the work product privilege is as follows. 

“(a) A writing that reflects an attorney’s impressions, conclusions, 

opinions, or legal research or theories is not discoverable 

under any circumstances. 

(b) The work product of an attorney, other than a writing 

described in subdivision (a), is not discoverable unless 

the court determines that denial of discovery will unfairly 

prejudice the party seeking discovery in preparing that party’s 

claim or defense or will result in an injustice.” 

Cal. CCP § 2018.030(a) 

m “Neither the defendant nor the prosecuting attorney is required 

to disclose any materials or information which are work 

product as defined in subdivision (a) of Section 2018.030 of 

the Code of Civil Procedure …” (Cal. Penal Code § 1054.6); 

People v. Zamudio (2008) 43 Cal.4th 327, 354-355) 

• A predicate question is whether the assigned assistant prosecutor 

can invoke the work product doctrine. 

m “Thus, depending on the circumstances, any possible claims 

of attorney-client privilege, work product protection or 

privacy regarding documents or statements prepared by a 

prosecuting attorney, such as DDA Longanbach, made in the 


course of his employment with the DA, would belong to the 

DA and not the individual DDA. As the court in Shepherd 

noted, because the district attorney does not have ‘a “client” 

as such,’ confidentiality regarding the fruits of investigations 

of a public prosecutor are governed exclusively by Evidence 

Code section 1040, which controls the assertion of claims for 

governmental privilege for official information. (Shepherd v. 

Superior Court, supra, 17 Cal.3d at pp. 122-123.) Under such 

provisions, the court is required to balance the necessity for 

preserving confidentiality against the interests in disclosure. 

(Id. at pp. 123-128; see also In re Muszalski (1975) 52 Cal. App. 

3d 475, 483)” (People ex rel. Lockyer v. Superior Court (2000) 

83 Cal.App.4th 387, 399, disapproved on another ground in 

25 Cal.4th 703; see also United States v. Ferrell, 2007 U.S. Dist. 

LEXIS 55939, at 8-10 (W.D.Wash. 2007)) 

The defense attorney should argue that the 

constitutional imperative of Brady v. Maryland trumps 

state-made rules of evidence, such as work product 

protection. 

> “The Supreme Court has not decided ‘whether 

Brady requires a prosecutor to turn over his work 

product.’ Mincey v. Head, 206 F.3d 1106, 1133 n.63 

(11th Cir. 2000). At least one commentator states: 

‘Because Brady is based on the Constitution, it 

overrides court-made rules of procedure. Thus, the 

work-product immunity for discovery in Rule 16(a) 

(2) prohibits discovery under Rule 16 but it does not 

alter the prosecutor’s duty to disclose material that 

is within Brady.” 2 CHARLES ALAN WRIGHT, FEDERAL 

PRACTICE AND PROCEDURE § 254.2 (3d ed. 2000). 

…” 

Dickson v. Quarterman, 462 F.3d 470, 479, f.7 (5th Cir. 

2006) 

> For example, the Supreme Court in Chambers v. 

Mississippi, infra, held that application of a state’s 


hearsay rule effected a violation of due process on 

the facts of that case. The principle could be argued 

to be applicable to the work product privilege. “In 

these circumstances, where constitutional rights 

directly affecting the ascertainment of guilt are 

implicated, the hearsay rule may not be applied 

mechanistically to defeat the ends of justice.” 

(Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 

1038, 1049, 35 L. Ed. 2d 297, 313 (1973)) 

Request that the Court conduct a reported in camera 

review for Brady material of the documents the 

prosecution claims are protected by the work product 

doctrine. (Pennsylvania v. Ritchie, 480 U.S. 39, 58-60, 

107 S. Ct. 989, 1001-1002, 94 L. Ed. 2d 40, 58-59 (1987)) 


22. Brady in Civil Cases? 

• Does Brady apply in civil cases? 

m “The civil context is not analogous. There, the basic duty of an 

attorney to his or her client is not offset by the countervailing 

duty a government prosecutor has to exercise in the interest of 

justice his or her awesome and extraordinary powers.” (Fox v. 

Elk Run Coal Co., 739 F.3d 131, 139 (4th Cir. 2014)) 

• Do Brady principles apply in quasi-criminal proceedings, such as 

contempt hearings prosecuted by a private party? 

m “Take the Due Process Clause. It guarantees particular rights in 

criminal prosecutions because the prosecutor is a state actor, 

carrying out a ‘duty on the part of the Government.’ Kyles v. 

Whitley, 514 U.S. 419, 433, 115 S. Ct. 1555, 131 L. Ed. 2d 490 

(1995) (emphasis added). But if the criminal prosecution is 

instead viewed as ‘a private action,’ not an exercise of sovereign 

power, how would those rights attach? [Citation omitted] 

What about Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 

L. Ed. 2d 215 (1963)? The private prosecutor is likely to have 

evidence pertinent to the proceeding--particularly if, as here, 

the private prosecutor is also the victim of the crime. But if 

the prosecutor is not exercising governmental authority, what 

would be the constitutional basis for any Brady obligations?” 

(Chief Justice Roberts, dissenting in Robertson v. Watson, 560 

U.S. 272, 277-278, 130 S. Ct. 2184, 2187-2188, 176 L. Ed. 2d 

1024, 1027 (2010)) 

m “We believe Brady should be extended to cover denaturalization 

and extradition cases where the government seeks 

denaturalization or extradition based on proof of alleged 

criminal activities of the party proceeded against.” (Demjanjuk 

v. Petrovsky, 10 F.3d 338, 353 (6th Cir. 1993)) 

m “Brady v. Maryland (1963) 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 

2d 215, orders that exculpatory information must be furnished 

a defendant in a criminal case. A defendant in a civil case 

brought by the government should be afforded no less due 

process of law.” (EEOC v. Los Alamos Constructors, Inc., 382 

F.Supp. 1373, 1383, n.5 (D.N.M. 1974)) 


23. Remedies 

• A new trial is required only if the Brady violation could in any 

reasonable likelihood have affected the judgment of the jury. (Giglio 

v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 

104, 108 (1972)) 

• A motion for a new trial based on a Brady violation must be 

granted if it meets the relaxed standard of a “reasonable probability 

of a different result” rather than the stricter standard for a discovery 

violation, that the transgression resulted in a likelihood that the 

verdict would have been different (“A ‘reasonable probability’ is a 

probability sufficient to undermine confidence in the outcome”). 

(United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3384, 87 

L. Ed. 2d 481, 494 (1985)) 

m “To be entitled to a new trial under Federal Rule of Criminal 

Procedure 33 based on newly discovered evidence, a defendant 

must satisfy a five-part test by showing that (1) the evidence is 

newly discovered; (2) the defendant exercised due diligence; 

(3) the newly discovered evidence is not merely cumulative or 

impeaching; (4) the evidence is material; and (5) the evidence 

would probably result in acquittal at a new trial. See United 

States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989) (‘Chavis 

Test’). We review the denial of a motion for a new trial for an 

abuse of discretion. United States v. Perry, 335 F.3d 316, 320 

(4th Cir. 2003).” (United States v. Moore, 709 F.3d 287, 292 (4th 

Cir. 2013)) 

• The preferred remedy for pre-appellate relief from a constitutional 

violation is suppression of the evidence or a new trial, not 

dismissal. (United States v. Morrison, 449 U.S. 361, 365, 101 S. Ct. 

665, 668, 66 L. Ed. 2d 564, 568 (1981)) 

• “The district court is permitted, but not required, to impose 

sanctions upon the government’s failure to timely comply with 

a discovery order. Fed. R. Crim. P. 16(d)(2); see United States v. 

Lopez, 271 F.3d 472, 483, 44 V.I. 311 (3d Cir. 2001). If the court 

decides to impose a sanction, it may: 

(A) order that party to permit the discovery or inspection; specify 


its time, place, and manner; and prescribe other just terms and 

conditions; 

(B) grant a continuance; 

(C) prohibit that party from introducing the undisclosed evidence; 

or 

(D) enter any other order that is just under the circumstances. 

Fed. R. Crim. P. 16(d)(2). ‘A continuance is the preferred sanction.’ 

United States v. Hammoud, 381 F.3d 316, 336 (4th Cir. 2004) (en 

banc) (citing United States v. Gonzales, 164 F.3d 1285, 1292 (10th 

Cir. 1999)), vacated on other grounds, 543 U.S. 1097, 125 S. Ct. 

1051, 160 L. Ed. 2d 997 (2005).” (United States v. Sterling, 724 F.3d 

482, 512 (4th Cir. 2013)) 

• The customary remedy for a Brady violation that is discovered 

during trial is a continuance for the opportunity to study the 

material and adjust one’s trial strategy. (United States v. Mathur, 624 

F.3d 498, 506 (1st Cir. 2010); United States v. Mota, 685 F.3d 644, 

649 (7th Cir. 2012)) 

m Failure to ask for a continuance is held to be an indication 

that defense counsel believes that tardiness in discovery will 

not inhibit its use or that the material is insignificant for trial 

purposes. (United States v. Mathur, 624 F.3d 498, 506 (1st Cir. 

2010); see also United States v. Van Anh, 523 F.3d 43, 51, n.7 

(1st Cir. 2008)) 

• When additional undisclosed evidence was discovered before jury 

deliberations commenced, the trial court’s remedy of allowing the 

defense to reopen to present the additional evidence was held to 

be an appropriate alternative to assure the defendant a fair trial. 

(People v. Wright (1985) 39 Cal.3d 576, 591) 

• Recalling a government witness about whom Brady information 

was recently disclosed is recognized as one remedy. (United States v. 

Davis, 306 F.3d 398, 421 (6th Cir. 2002)) 

• The prosecution’s offering to introduce the recently discovered 

Brady statement at the trial may rectify the error. (United States v. 

Diaz, 922 F.2d 998, 1007 (2d Cir. 1990)) 

• Dismissal of an indictment is an appropriate sanction for a Brady 


violation only where less drastic alternatives are not available. 

(United States v. Kearns, 5 F.3d 1251, 1254 (9th Cir. 1993)) 

• “A district court may exercise its supervisory power ‘to implement a 

remedy for the violation of a recognized statutory or constitutional 

right; to preserve judicial integrity by ensuring that a conviction 

rests on appropriate considerations validly before a jury; and to 

deter future illegal conduct.’ United States v. Simpson, 927 F.2d 

1088, 1090 (9th Cir. 1991). However, because ‘[d]ismissing an 

indictment with prejudice encroaches on the prosecutor’s charging 

authority,’ this sanction may be permitted only ‘in cases of flagrant 

prosecutorial misconduct.’ Id. at 1091. Here, the district court 

specifically found that the AUSA acted ‘flagrantly, willfully, and in 

bad faith.’ “ (United States v. Chapman, 524 F.3d 1073, 1085 (9th Cir. 

2008)) 

• Dismissal may be the appropriate remedy when a pattern of 

recurring violations of Brady emerges. 

m “Morrison also teaches that the intentional character of the 

government’s misconduct affects the appropriate remedy. 

The Court noted, for example, that a ‘pattern of recurring 

violations by investigative officers ... might warrant the 

imposition of a more extreme remedy in order to deter further 

lawlessness.’ (Morrison, 449 U.S. at 365 n.2.) This statement 

suggests that the Court was concerned with both prejudice 

and deterrence, and that when both of those factors call for a 

particularly harsh sanction, dismissal - the harshest available 

sanction for a Brady violation - may be proper. See United 

States v. Isgro, 974 F.2d 1091, 1097 (9th Cir. 1992) (‘Dismissal 

of an indictment with prejudice is the most severe sanction 

possible.’).” (Virgin Islands v. Fahie, 419 F.3d 249, 253 (3d Cir. 

2005)) 

• When the actions of law enforcement shock the conscience, 

dismissal may be the remedy: 

“We agree with the district court that, viewing the facts and 

inferences discussed above in the light most favorable to 

White, Defendants’ conduct in this case shocks the conscience. 

There can be little doubt that intentionally manufacturing 

false evidence to convict a criminal defendant is the sort of 


‘brutal and inhumane abuse of official power’ that shocks 

the conscience. See Moran, 296 F.3d at 647 (suggesting that 

‘evidence that officials purposely conspired to manufacture 

evidence in order to make [the defendant] an innocent 

scapegoat’ could shock the conscience). We have also 

previously recognized that the following circumstances 

indicate conscience-shocking behavior in the context of a 

reckless or intentional failure to investigate claim: ‘(1) evidence 

that the state actor attempted to coerce or threaten the 

defendant, (2) evidence that investigators purposefully ignored 

evidence suggesting the defendant’s innocence, (3) evidence 

of systematic pressure to implicate the defendant in the face of 

contrary evidence.’ Akins v. Epperly, 588 F.3d 1178, 1184 (8th 

Cir. 2009).” (White v. Smith, 696 F.3d 740, 758 (8th Cir. 2012)) 

• Reversal of the conviction and remand for retrial may be the 

remedy for Brady misconduct. (People v. Uribe (2008) 162 Cal. 

App.4th 1457, 1482-1483: Kyles v. Whitley, 514 U.S. 419, 454, 115 S. 

Ct. 1555, 1575, 131 L. Ed. 2d 490, 518 (1995)) 

• Another remedy for Brady misconduct is modification of the 

judgment. (e.g., In re Bacigalupo (2012) 55 Cal.4th 312, 336; In re 

Miranda (2008) 43 Cal.4th 541, 582; In re Brown (1998) 17 Cal.4th 

873, 891-892) 


24. Brady Violation as the Basis for a Civil Rights Action 

• A civil cause of action under 42 U.S.C. 1983 is available for alleged 

Brady violations pursuant to Bivens v. Six Unknown Named Agents 

of Fed. Bureau of Narcotics, 403 U.S. 388, 395, 91 S. Ct. 1999, 2004, 

29 L. Ed. 2d 619, 626 (1971); (Engel v. Buchan, 710 F.3d 698, 699 

(7th Cir. 2013)) 

m Most jurisdictions hold that the police may be liable under 

42 U.S.C. 1983 for failure to turn over exculpatory evidence. 

(Brady v. Dill, 187 F.3d 104, 114 (1st Cir. 1999); Yarris v. 

County of Delaware, 465 F.3d 129, 141 (3d Cir. 2006); Geter v. 

Fortenberry, 882 F.2d 167, 170 (5th Cir. 1989); Moldowan v. 

City of Warren, 578 F.3d 351, 380-382 (6th Cir. 2009); Jones v. 

Chicago, 856 F.2d 985, 995 (7th Cir. 1988); Wilson v. Lawrence 

County, 260 F.3d 946, 957 (8th Cir. 2001); Tennison v. City and 

County of San Francisco, 570 F.3d 1078, 1087 (9th Cir. 2009); 

McMillian v. Johnson, 88 F.3d 1554, 1569 (11th Cir. 1996)) 

n The police need not make decisions regarding the disclosure 

of exculpatory evidence to the defense: “…[T]he police 

satisfy their obligations under Brady when they turn over 

exculpatory evidence to the prosecutors.” (Walker v. New 

York, 974 F.2d 293, 299 (2d Cir. 1992)) 

m “When a police officer creates false information likely to 

influence a jury’s decision and forwards that information to 

prosecutors, he violates the accused’s constitutional right to a 

fair trial, and the harm occasioned by such an unconscionable 

action is redressable in an action for damages under 42 U.S.C. 

§ 1983.” (Ricciuti v. New York City Transit Auth., 124 F.3d 123, 

130 (2d Cir. 1997)) 

• Prosecutors enjoy absolute immunity while performing duties as 

a prosecutor. (Imbler v. Pachtman, 424 U.S. 409, 422-424, 96 S. Ct. 

984, 992-994, 47 L. Ed. 2d 128, 140-141 (1976); Warney v. Monroe 

County, 587 F.3d 113, 125 (2d Cir. 2009)) 

• Immunity does not extend to prosecutorial investigation or 

fabrication of evidence. 

m “Wharrie is asking us to bless a breathtaking injustice. 


Prosecutor, acting pre-prosecution as an investigator, fabricates 

evidence and introduces the fabricated evidence at trial. The 

innocent victim of the fabrication is prosecuted and convicted 

and sent to prison for 17 years. On Wharrie’s interpretation 

of our decision in Buckley, the prosecutor is insulated from 

liability because his fabrication did not cause the defendant’s 

conviction, and by that time that same prosecutor got around 

to violating the defendant’s right he was absolutely immunized. 

So: grave misconduct by the government’s lawyer at a time 

where he was not shielded by absolute immunity; no remedy 

whatsoever for the hapless victim.” (Fields v. Wharrie, 740 F.3d 

1107, 1113 (7th Cir. 2014)) 

m It is possible that failure to train prosecutors regarding their 

Brady duties may rise to the level of official municipal policy 

and thus make a district attorney’s office liable under 42 U.S.C. 

1983. (Connick v. Thompson, 563 U.S. 51, 60-61, 131 S. Ct. 

1350, 1359, 179 L. Ed. 2d 417, 426-427 (2011). However, see 

D’Ambrosio v. Marino, 747 F.3d 378, 388 (6th Cir. 2014)) 

m For a discussion of absolute immunity, qualified immunity and 

the duration of immunity, see Fields v. Wharrie, 672 F.3d 505, 

512 (7th Cir. 2012) 

• Wrongfully incarcerated for 15 years based on a police forensic 

chemist fabricating inculpatory evidence and disregarding 

exculpatory evidence, the plaintiff stated a cause of action 

analogous to malicious prosecution under 42 U.S.C. 1983. (Pierce v. 

Gilchrist, 359 F.3d 1279, 1285 (10th Cir. 2004)) 

• Some cases hold that if the underlying criminal case resulted in an 

acquittal, there is no Brady violation actionable under 42 U.S.C. 

1983 because there is no prejudice. (Ambrose v. City of New York, 

623 F.Supp.2d 454, 472 (S.D.N.Y. 2009); Flores v. Satz, 137 F.3d 

1275, 1278-79 (11th Cir. 1998); McCune v. City of Grand Rapids, 

842 F.2d 903, 907 (6th Cir. 1988); Carvajal v. Dominguez, 542 F.3d 

561, 570, n.2 (7th Cir. 2008): Saunders-El v. Rohde, 778 F.3d 556, 

562 (7th Cir. 2015): Compare the opposing dissents by Judges Gwin 

and Nelson in Smith v. Almada, 640 F.3d 931, 941 (9th Cir. 2011)) 

• In the Ninth Circuit an acquittal does not bar a Section 1983 action 

based on a due process violation: “Hence, the fact that Cooper 


never formally was charged in court and that none of his statements 

ever were offered in evidence to his potential detriment is relevant 

only to damages, not to whether he has a civil cause of action in the 

first place.” (Cooper v. Dupnik, 963 F.2d 1220, 1245 (9th Cir. 1992); 

“The fact that Haupt ultimately was acquitted speaks only to the 

amount of damages he suffered; it is irrelevant to whether he has a 

cause of action.” (Haupt v. Dillard, 17 F.3d 285, 287 (9th Cir. 1994)) 

• It is also possible to establish prejudice by showing that prompt 

disclosure of withheld material evidence would have changed the 

prosecutor’s decision to go to trial. (Mosley v. City of Chicago, 614 

F.3d 391, 397 (7th Cir. 2010)) 

In California, civil immunity is denied to juvenile court 

social workers, child protection workers and others 

authorized to initiate or investigate juvenile welfare 

violations if they maliciously fabricate, evade or fail 

to disclose exculpatory evidence. (Cal. Govt. Code § 

820.21) 

Note that materiality in the context of a civil rights 

action is different from that in a criminal trial. 

“The concept of ‘materiality’ does not carry a static 

and uniform meaning across these two different 

contexts. In a criminal case, in which the defendant 

seeks reversal of his conviction, ‘materiality’ means 

material to the conviction. In other words, in a 

criminal case, suppressed evidence or testimony 

is only material if it could have affected the factfinder’s 

determination whether the defendant is 

guilty beyond a reasonable doubt. See Valenzuila- 

Bernal, 458 U.S. at 874 (explaining testimony is 

material ‘only if there is a reasonable likelihood that 

[it] could have affected the judgment of the trier of 

fact’). 

… 

“In contrast, in a Section 1983 action, the plaintiff 

is not seeking reversal of his conviction, but rather 

compensation for the violation of his constitutional 


ights during a previous criminal trial. In other words, 

he is seeking to vindicate his right to a procedurally 

fair criminal trial. Consequently, the materiality test 

in a Section 1983 case is directed towards a different 

question: suppressed evidence or testimony is 

material only if it affected the question whether 

the defendant was deprived of a fair trial. The fact 

that a defendant was acquitted has little to do with 

whether the trial was fair, see Haupt, 17 F.3d at 287, 

and therefore has little to do with materiality in the 

context of a Section 1983 claim.” 

Park v. Thompson, 851 F.3d 910, 926 (9th Cir. 2017) 


25. Dropping the Dime 

• “There is an epidemic of Brady violations abroad in the land. Only 

judges can put a stop to it.” (Chief Judge Kozinksi, dissenting in 

United States v. Olsen, 737 F.3d 625, 626 (9th Cir. 2013)) 

In the past, discipline for Brady misconduct has been 

rare. 

“The fact is that historically few Brady violations 

were ever reported to the state bar, and fewer still 

resulted in discipline. In an analysis by the Northern 

California Innocence Project, over 4,000 state and 

federal decisions were studied for prosecutorial 

misconduct, not limited to Brady violations. The 

courts explicitly found misconduct in 707 cases, but 

only held it was harmful in 159 cases. These figures 

did not include misconduct at the trial court level 

which did not result in an appellate decision and 

obviously did not reflect misconduct which was 

never discovered. In the same period of time the 

California State Bar only disciplined 6 prosecutors for 

the handling of criminal cases (as opposed to 4,741 

private attorneys who were disciplined during the 

same period).” 

Kathleen M. Ridolfi, Maurice Possley, and Northern 

California Innocence Project Publications, Preventable 

Error: A Report on Prosecutorial Misconduct in California 

1997-2009. Northern California Innocence Project 

Publications, Oct. 2010, pages 2-3) 

Focusing on Brady error, the authors stated: 

“It is impossible to know how many Brady violations 

occuróby their nature they involve evidence that 

is hidden from the defense. But a study of all 5,760 

capital convictions in the United States from 1973 

to 1995 found that the suppression of evidence 

by prosecutors was responsible for 16 percent of 


eversals at the state post-conviction stage. The 

Misconduct Study uncovered 66 cases where courts 

found prosecutors had committed Brady violations, 

including several that occurred in death penalty 

prosecutions.” 

Preventable Error, Ridolfi and Possley, page 37) 

In California courts are required to notify the state bar 

“whenever a modification or reversal of a judgment 

in a judicial proceeding is based in whole or in part 

on the misconduct, incompetent representation, or 

willful misrepresentation of an attorney.” (Cal. B&P 

Code § 6086.7 (a)(2)) However, nothing bars a judge 

from reporting conduct which does not result in a 

modification or reversal. 

• The prosecutor may be subject to ethical standards more stringent 

than the duties imposed by Brady and its progeny. 

m “Although the Due Process Clause of the Fourteenth 

Amendment, as interpreted by 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. See 

Kyles, 514 U.S., at 437, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (‘[T] 

he rule in Bagley (and, hence, in Brady) requires less of the 

prosecution than the ABA Standards for Criminal Justice . . . . 

See . . . Prosecution Function and Defense Function 3-3.11(a) 

(3d ed. 1993)’). See also ABA Model Rule of Professional 

Conduct 3.8(d) (2008) (‘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, 

except when the prosecutor is relieved of this responsibility by 

a protective order of the tribunal’). As we have often observed, 

the prudent prosecutor will err on the side of transparency, 


m 

m 

resolving doubtful questions in favor of disclosure. See Kyles, 

514 U.S., at 439, 115 S. Ct. 1555, 131 L. Ed. 2d 490; United 

States v. Bagley, 473 U.S. 667, 711, 105 S. Ct. 3375, 87 L. Ed. 2d 

481, n.4 (1985) (Stevens, J., dissenting); United States v. Agurs, 

427 U.S. 97, 108, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976).” (Cone 

v. Bell, 556 U.S. 449, 470, 129 S. Ct. 1769, 1783, 173 L. Ed. 2d 

701, 718, n.15 (2009)) 

“As an officer of the court and member of the bar, the lawyer is 

obligated to use only such means as are consistent with truth: 

he may not seek to mislead a judge by artifice or suppress 

evidence he has a legal obligation to reveal. (California Rules 

Prof. Conduct, rules 5-220, 5-200(A), (B).)” (Jones v. Superior 

Court (1994) 26 Cal.App.4th 92, 98-99) 

Withholding evidence favorable to the defense violates the 

canons of ethics. 

(a) After charges are filed if not before, the prosecutor should 

diligently seek to identify all information in the possession 

of the prosecution or its agents that tends to negate the guilt 

of the accused, mitigate the offense charged, impeach the 

government’s witnesses or evidence, or reduce the likely 

punishment of the accused if convicted. 

(b) The prosecutor should diligently advise other governmental 

agencies involved in the case of their continuing duty 

to identify, preserve, and disclose to the prosecutor 

information described in (a) above. 

(c) Before trial of a criminal case, a prosecutor should make 

timely disclosure to the defense of information described 

in (a) above that is known to the prosecutor, regardless 

of whether the prosecutor believes it is likely to change 

the result of the proceeding, unless relieved of this 

responsibility by a court’s protective order. (Regarding 

discovery prior to a guilty plea, see Standard 3-5.6(f) 

below.) A prosecutor should not intentionally attempt to 

obscure information disclosed pursuant to this standard by 

including it without identification within a larger volume of 

materials. 

(d) The obligations to identify and disclose such information 


continue throughout the prosecution of a criminal case. 

ABA Standards for Criminal Justice: Prosecution Function, 

Proposed Rule 3-5.4(a)-(d) 

The prosecutor in a criminal case shall: 

… 

(d) 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, except when the prosecutor is relieved of 

this responsibility by a protective order of the tribunal. 

ABA Model Rules of Professional Conduct, Rule 3.8(d). 

The prosecutor in a criminal case shall: 

… 

(d) Make timely disclosure to the defense of all evidence or 

information known to the prosecutor that the prosecutor 

knows or reasonably should know tends to negate the guilt 

of the accused or mitigates the offense, and, in connection 

with sentencing, disclose to the defense all unprivileged 

mitigating information known to the prosecutor that the 

prosecutor knows or reasonably should know mitigates 

the sentence, except when the prosecutor is relieved of this 

responsibility by a protective order of the tribunal.” 

California Rules of Professional Conduct, Proposed Rule 

5-110. 

On May 1, 2017, the California Supreme Court denied 

approval of this paragraph and remanded it to the State Bar 

Board of Trustees for redrafting. Thus, the California rule 

regarding these issues is not settled, and subject to future 

emendations. 

• North Carolina imposes a duty on all lawyers to disclose 

exculpatory evidence that resulted in a wrongful conviction. 

(a) Subject to paragraph (b), when a lawyer knows of credible 


evidence or information, including evidence or information 

otherwise protected by Rule 1.6, that creates a reasonable 

likelihood that a defendant did not commit the offense 

for which the defendant was convicted, the lawyer shall 

promptly disclose that evidence or information to the 

prosecutorial authority for the jurisdiction in which the 

defendant was convicted and to North Carolina Office of 

Indigent Defense Services or, if appropriate, the federal 

public defender for the district of conviction. 

(b) Notwithstanding paragraph (a), a lawyer shall not disclose 

evidence or information if: 

(1) the evidence or information is protected from 

disclosure by law, court order, or 27 N.C. Admin. Code Ch. 

1B §.0129; 

(2) disclosure would criminally implicate a current or 

former client or otherwise substantially prejudice a current 

or former client’s interests; or 

(3) disclosure would violate the attorney-client privilege 

applicable to communications between the lawyer and a 

current or former client. 

(c) A lawyer who in good faith concludes that information is 

not subject to disclosure under this rule does not violate the 

rule even if that conclusion is subsequently determined to be 

erroneous. 

(d) This rule does not require disclosure if the lawyer knows an 

appropriate governmental authority, the convicted defendant, 

or the defendant’s lawyer already possesses the information. 

North Carolina Rules of Professional Conduct, Rule 8.6 

Other than some political need for symmetry, it is hard 

to imagine how this rule will have any application to 

the real legal world. First, the attorney-client privilege 

will keep the non-reporting attorney’s information 

hidden. Second, it is doubtful that it will have an 

effect on overturning convictions. Finally, it will not 

curb prosecutorial misconduct. More a shield than a 


sword, it may only give cover to the reporting attorney 

against a claim that he or she acted improperly. 

• While some California courts have overlooked prosecutorial 

misconduct in not providing Brady material, the California 

legislature has codified the duty and the consequences for its 

breach. 

m “A prosecuting attorney who intentionally and in bad faith 

alters, modifies, or withholds any physical matter, digital 

image, video recording, or relevant exculpatory material 

or information, knowing that it is relevant and material to 

the outcome of the case, with the specific intent that the 

physical matter, digital image, video recording, or relevant 

exculpatory material or information will be concealed 

or destroyed, or fraudulently represented as the original 

evidence upon a trial, proceeding, or inquiry, is guilty of a 

felony punishable by imprisonment pursuant to subdivision 

(h) of Section 1170 for 16 months, or two or three years.” 

(Cal. Penal Code § 141(c)) 

This crime does not posit a new definition of all Brady 

violations. 

The inclusion of a stricter requirement distinguishes it 

from the classic iteration of Brady error but it does not 

supersede the latter. 

“We now hold that the suppression by the 

prosecution of evidence favorable to an accused 

upon request violates due process where the 

evidence is material either to guilt or to punishment, 

irrespective of the good faith or bad faith of the 

prosecution.” 

Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196- 

1197, 10 L. Ed. 2d 215, 219 (1963) (emphasis added) 


If a law enforcement officer witnesses a prosecutor 

committing Brady misconduct, what must the officer 

do? 

> “A law enforcement officer has an affirmative 

duty to intercede on the behalf of a citizen whose 

constitutional rights are being violated in his 

presence by other officers. (citations omitted)” 

O’Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988)) 

Thus, in states where Brady misconduct is a crime, 

the officer may violate his oath of office if he does 

not report it. The officer could risk being charged as 

a principal if he or she aids, instigates, promotes or 

encourages the Brady misconduct. 

Failure to intercede could also subject the officer to 

liability for a civil rights violation. 

> An officer’s failure to intercede on behalf of 

a citizen whose constitutional rights are being 

violated can be grounds for liability in a civil rights 

action under 42 U.S.C. 1983. (Ricciuti v. New York City 

Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997)) 

• Other attorneys and members of the public can also report 

misconduct. Complaints may be lodged with the following 

agencies, and any appropriate state bar: 

m United States Department of Justice Office of Professional 

Responsibility, 950 Pennsylvania Ave. NW, Suite 3529, 

Washington, D.C. 20530-0001 

m Office of Chief Trial Counsel/Intake Dept., State Bar of 

California, 845 S. Figueroa St., Los Angeles, CA 90017-2515 

m California Bar Association Attorney Complaint Hotline, 

1-800-843-9053 


Table of Authorities 

Cases 

Aguilar v. Woodford, 725 F.3d 970 (9th Cir. 2013)......................................................................59 

Amadeo v. Zant, 486 U.S. 214, 108 S. Ct. 1771, 100 L. Ed. 2d 249 (1988)..........................66 

Amado v. Gonzalez, 758 F.3d 1119 (9th Cir. 2014)......................................................33, 64, 71 

Ambrose v. City of New York, 623 F.Supp.2d 454 (S.D.N.Y. 2009).................................15, 99 

Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 281 (1988).......................82 

Avila v. Quarterman, 560 F.3d 299 (5th Cir. 2009)......................................................................55 

Bailey v. Rae, 339 F.3d 1107 (9th Cir. 2003)............................................................................35, 67 

Baker v. McCollan, 443 U.S. 137, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979)...........................61 

Banks v. Dretke, 540 U.S. 668, 124 S. Ct. 1256, 157 L. Ed. 2d 1166 (2004)............................. 

.............................................................................................................................2, 27, 28, 66, 70, 71 

Barbee v. Warden, Maryland Penitentiary, 331 F.2d 842 (4th Cir. 1964)......15, 32, 50, 51 

Barker v. Fleming, 423 F.3d 1085 (9th Cir. 2005)..................................................................12, 15 

Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d 450 (6th Cir. 2015).................................16 

Beaman v. Freesmeyer, 776 F.3d 500 (7th Cir. 2015).................................................................30 

Bell v. Bell, 512 F.3d 223 (6th Cir. 2008)..........................................................................................29 

Benn v. Lambert, 283 F.3d 1040 (9th Cir. 2002)............................... 12, 13, 23, 28, 31, 63, 64 

Bies v. Sheldon, 775 F.3d 386 (6th Cir. 2014)................................................................................46 

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. 

Ct. 1999, 29 L. Ed. 2d 619 (1971).......................................................................................................98 

Boone v. Paderick, 541 F.2d 447 (4th Cir. 1976)...................................................................29, 50 

Boss v. Pierce, 263 F.3d 734 (7th Cir. 2001)...................................................................................72 

Bowen v. Maynard, 799 F.2d 593 (10th Cir. 1986)......................................................................25 

Boyette v. Lefevre, 246 F.3d 76 (2d Cir. 2001)..............................................................................44 

Brady v. Dill, 187 F.3d 104 (1st Cir. 1999).......................................................................................98 

Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).......... 8, 9, 67, 107 

Bridgeforth v. Superior Court (2013) 214 Cal.App.4th 1074)...................................................9 

Brown v. Miller, 519 F.3d 231 (5th Cir. 2008)................................................................................31 

Browning v. Trammell, 717 F.3d 1092 (10th Cir. 2013).............................................................36 

California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984)..............80 

Cannon v. Alabama, 558 F.2d 1211 (5th Cir. 1977)....................................................................43 

Carey v. Duckworth, 738 F.2d 875 (7th Cir. 1984)......................................................................50 

Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997)..................................................................17, 22 

Carrillo v. County of Los Angeles, 798 F.3d 1210 (9th Cir. 2015)............. 25, 39, 42, 43, 47 

Carter v. Rafferty, 826 F.2d 1299 (3d Cir. 1987)...........................................................................30 

Carvajal v. Dominguez, 542 F.3d 561 (7th Cir. 2008)................................................................99 

Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)...............91 


Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).......................40 

City of Los Angeles v. Superior Court (Brandon) (2002) 29 Cal.4th 1.........................76, 81 

Comstock v. Humphries, 786 F.3d 701 (9th Cir. 2015).......................................................13, 43 

Cone v. Bell, 556 U.S. 449, 129 S. Ct. 1769, 173 L. Ed. 2d 701 (2009)................................ 103 

Connick v. Thompson, 563 U.S. 51, 131 S. Ct. 1350, 179 L. Ed. 2d 417 (2011).................99 

Contreras v. Artus, 778 F.3d 97 (2d Cir. 2015)..............................................................................11 

Crawford v. Head, 311 F.3d 1288 (11th Cir. 2002)......................................................................66 

Crivens v. Roth, 172 F.3d 991 (7th Cir. 1999)................................................................................49 

D’Ambrosio v. Marino, 747 F.3d 378 (6th Cir. 2014)..................................................................99 

Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974)...........................22, 37 

Davis v. Commonwealth of Virginia, 25 Va.App. 588, 491 S.E.2d 288 (1997)..................47 

Davis v. Heyd, 479 F.2d 446 (5th Cir. 1973)...................................................................................42 

Demjanjuk v. Petrovsky, 10 F.3d 338 (6th Cir. 1993).................................................................93 

Dickson v. Quarterman, 462 F.3d 470 (5th Cir. 2006)...............................................................91 

DiSimone v. Phillips, 461 F.3d 181 (2d Cir. 2006)............................. 19, 44, 47, 60, 70, 72, 79 

Douglas v. Workman, 560 F.3d 1156†(10th Cir. 2009).............................................................29 

EEOC v. Los Alamos Constructors, Inc., 382 F.Supp. 1373 (D.N.M. 1974)..........................93 

Ellsworth v. Warden, N.H. State Prison, 333 F.3d 1 (1st Cir. 2003).................................73, 80 

Engel v. Buchan, 710 F.3d 698 (7th Cir. 2013)..............................................................................98 

Engstrom v. Superior Court (1971) 20 Cal.App.3d 240............................................................50 

Fambo v. Smith, 433 F.Supp. 590 (W.D.N.Y. 1977)......................................................................44 

Fenenbock v. Dir. of Corr. for Cal., 681 F.3d 968 (9th Cir. 2012).............................................55 

Fields v. Wharrie, 672 F.3d 505 (7th Cir. 2012)......................................................................51, 99 

Fields v. Wharrie, 740 F.3d 1107 (7th Cir. 2014)...........................................................................99 

Flores v. Satz, 137 F.3d 1275 (11th Cir. 1998)...............................................................................99 

Ford v. Hall, 546 F.3d 1326 (11th Cir. 2008)...................................................................................40 

Fox v. Elk Run Coal Co., 739 F.3d 131 (4th Cir. 2014).................................................................93 

Frost v. Gilbert, 835 F.3d 883 (9th Cir. 2016)..........................................................................63, 66 

Gantt v. Roe, 389 F.3d 908 (9th Cir. 2004).................................................................45, 60, 63, 70 

Geter v. Fortenberry, 882 F.2d 167 (5th Cir. 1989).....................................................................98 

Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972).......................... 

......................................................................................................................8, 21, 22, 28, 40, 49, 94 

Goldberg v. United States, 425 U.S. 94, 96 S. Ct. 1338, 47 L. Ed. 2d 603 (1976).............88 

Gonzalez v. Wong, 667 F.3d 965 (9th Cir. 2011)..........................................................................36 

Grant v. Lockett, 709 F.3d 224 (3d Cir. 2013)................................................................................64 

Gumm v. Mitchell, 775 F.3d 345 (6th Cir. 2014)............................................................16, 44, 46 

Haber v. Wainwright, 756 F.2d 1520 (11th Cir. 1985)................................................................28 

Halsey v. Pfeiffer, 750 F.3d 273 (3d Cir. 2014)...............................................................................34 

Hammond v. Hall, 586 F.3d 1289 (11th Cir. 2009)......................................................................40 


Harrington v. State of Iowa, 659 N.W.2d 509 (2003).................................................................45 

Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005)...............................................................................41 

Hoke v. Netherland, 92 F.3d 1350 (4th Cir. 1996).......................................................................17 

Horton v. Mayle, 408 F.3d 570 (9th Cir. 2005).......................................................................14, 23 

Hurd v. Superior Court (2006) 144 Cal.App.4th 1100...............................................................55 

Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976)..........................98 

In re Bacigalupo (2012) 55 Cal.4th 312............................................................................17, 47, 97 

In re Brown (1998) 17 Cal.4th 873....................................................................... 31, 49, 50, 54, 97 

In re Ferguson (1971) 5 Cal.3d 525..................................................................................................37 

In re Miranda (2008) 43 Cal.4th 541.........................................................................................83, 97 

In re Murphy, 560 F.2d 326 (8th Cir. 1977)....................................................................................89 

In re Pratt (1999) 69 Cal.App.4th 1294....................................................................................64, 77 

In re Sassounian (1995) 9 Cal.4th 535....................................................................................... 8, 77 

In re Sodersten (2007) 146 Cal.App.4th 1163.......................................................................26, 42 

In re Steele (2004) 32 Cal.4th 682........................................................................................................9 

In re Vargas (2000) 83 Cal.App.4th 1125........................................................................................87 

Izazaga v. Superior Court (1991) 54 Cal.3d 356.............................................................................9 

J.E. v. Superior Court (2014) 223 Cal.App.4th 1329...................................................................10 

Jones v. Chicago, 856 F.2d 985 (7th Cir. 1988).............................................................................98 

Jones v. Jago, 575 F.2d 1164 (6th Cir. 1978).................................................................................42 

Jones v. Superior Court (1994) 26 Cal.App.4th 92.................................................................. 104 

Killian v. Poole, 282 F.3d 1204 (9th Cir. 2002)...............................................................................41 

Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995)................................ 

......................................................................................................................9, 12, 15, 52, 55, 79, 97 

Lavallee v. Coplan, 374 F.3d 41 (1st Cir. 2004).............................................................................55 

Leka v. Portuondo, 257 F.3d 89 (2d Cir. 2001)......................................................................39, 60 

Lewis v. Conn. Comm’r of Corr., 790 F.3d 109 (2d Cir. 2015)...........................................38, 70 

Lindsey v. King, 769 F.2d 1034 (5th Cir. 1985).............................................................................43 

Livers v. Schenck, 700 F.3d 340 (8th Cir. 2012)............................................................................61 

Magraw v. Roden, 743 F.3d 1 (1st Cir. 2014).................................................................................80 

Majors v. Warden, 2016 U.S. Dist. LEXIS 70099 (E.D.Cal. 2016)......................................43, 90 

Maxwell v. Roe, 628 F.3d 486 (9th Cir. 2010)................................................................................29 

McCann v. Mangialardi, 337 F.3d 782 (7th Cir. 2003)................................................................83 

McCormick v. Parker, 821 F.3d 1240 (10th Cir. 2016)................................................................54 

McCormick v. United States, 500 U.S. 257, 111 S. Ct. 1807, 114 L. Ed. 2d 307 (1991).... 13 

McCune v. City of Grand Rapids, 842 F.2d 903 (6th Cir. 1988)..............................................99 

McMillian v. Johnson, 88 F.3d 1554 (11th Cir. 1996).................................................................98 

Merrill v. Superior Court (1994) 27 Cal.App.4th 1586..............................................................42 

Milke v. Ryan, 711 F.3d 998 (9th Cir. 2013).............................................................................26, 71 


Millaud v. Superior Court (1986) 182 Cal.App.3d 471..............................................................22 

Miller v. Angliker, 848 F.2d 1312 (2d Cir. 1988)............................................................................86 

Miller v. Vasquez, 868 F.2d 1116 (9th Cir. 1989)..........................................................................35 

Moldowan v. City of Warren, 578 F.3d 351 (6th Cir. 2009)...............................................81, 98 

Morris v. Ylst, 447 F.3d 735 (9th Cir. 2006).....................................................................................89 

Mosley v. City of Chicago, 614 F.3d 391 (7th Cir. 2010)........................................................ 100 

Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959)........................14, 33 

North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970)....................87 

Northern Mariana Islands v. Bowie, 243 F.3d 1109 (9th Cir. 2001)......................................35 

O’Neill v. Krzeminski, 839 F.2d 9 (2d Cir. 1988)......................................................................... 107 

Paradis v. Arave, 240 F.3d 1169 (9th Cir. 2001)..............................................................16, 17, 25 

Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987)........................... 

.........................................................................................................................................11, 55, 73, 92 

People ex rel. Lockyer v. Superior Court (2000) 83 Cal.App.4th 387...........................88, 91 

People v. Boyd (1990) 222 Cal.App.3d. 541..................................................................................67 

People v. Broome (1988) 201 Cal.App.3d 1479..........................................................................22 

People v. Castro (1985) 38 Cal.3d 301............................................................................................37 

People v. Contreras (2013) 58 Cal.4th 123....................................................................................21 

People v. Cooper (1991) 53 Cal.3d 771...................................................................................14, 26 

People v. Cordova (2015) 62 Cal.4th 104...............................................................................56, 79 

People v. Coyer (1983) 142 Cal.App.3d 839..........................................................................23, 37 

People v. Espinoza (1977) 73 Cal.App.3d 287.............................................................................22 

People v. Gaines (2009) 46 Cal.4th 172...................................................................................24, 74 

People v. Garcia (1993) 17 Cal.App.4th 1169........................................................................20, 23 

People v. Goliday (1973) 8 Cal.3d 771............................................................................................28 

People v. Gutierrez (2013) 214 Cal.App.4th 343..................................................................38, 61 

People v. Harvey, (1984) 151 Cal.App.3d 660..............................................................................87 

People v. Hayes (1988) 200 Cal.App.3d 400.................................................................................49 

People v. Hayes (1992) 3 Cal.App.4th 1238..................................................................................38 

People v. Hendricks (1988) 44 Cal.3d 635.....................................................................................14 

People v. Howard (1992) 1 Cal.4th 1132.......................................................................................87 

People v. Huricks (1995) 32 Cal.App.4th 1201............................................................................87 

People v. Johnson (1974) 38 Cal.App.3d 228..............................................................................30 

People v. Johnson (2006) 142 Cal.App.4th 776..........................................................................33 

People v. Jordan (2003) 108 Cal.App.4th 349.................................................................. 9, 49, 75 

People v. Kasim (1997) 56 Cal.App.4th 1360...............................................................................67 

People v. Little (1997) 59 Cal.App.4th 426....................................................................................37 

People v. Martinez (2002) 103 Cal.App.4th 1071.......................................................................37 

People v. Moore (1983) 34 Cal.3d 215............................................................................................61 


People v. Morrison (2004) 34 Cal.4th 698..............................................................................70, 87 

People v. Nye (1969) 71 Cal.2d 356.................................................................................................14 

People v. Ochoa (1998) 19 Cal.4th 353..........................................................................................12 

People v. Ruthford (1975) 14 Cal.3d. 399......................................................................................67 

People v. Salazar (2005) 35 Cal.4th 1031.........................................................................13, 14, 70 

People v. Seaton (2001) 26 Cal.4th 598..................................................................................14, 31 

People v. Shoemaker (1982) 135 Cal.App.3d 442......................................................................37 

People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305...........................................55 

People v. Superior Court (Johnson) (2015) 61 Cal.4th 696......................................70, 74, 75 

People v. Superior Court of San Francisco (1974) 11 Cal.3d 793.........................................87 

People v. Uribe (2008) 162 Cal.App.4th 1457................................................................27, 56, 97 

People v. Whalen (2013) 56 Cal.4th 1.............................................................................................54 

People v. Wheeler (1992) 4 Cal.4th 284.........................................................................................37 

People v. Williams (1979) 93 Cal.App.3d 40.................................................................................16 

People v. Wilson (2005) 36 Cal.4th 309..........................................................................................14 

People v. Wright (1985) 39 Cal.3d 576.....................................................................................37, 95 

People v. Zamora (1980) 28 Cal.3d 88............................................................................................82 

People v. Zamudio (2008) 43 Cal.4th 327.....................................................................................90 

Phillips v. Ornoski, 673 F.3d 1168 (9th Cir. 2012)........................................................................41 

Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir. 2004).......................................................................99 

Pitchess v. Superior Court (1974) 11 Cal.3d 531.........................................................................74 

Pitonyak v. Stephens, 732 F.3d 525 (5th Cir. 2013)....................................................................52 

Reed v. Stephens, 739 F.3d 753 (5th Cir. 2014)...........................................................................63 

Ricciuti v. New York City Transit Auth., 124 F.3d 123 (2d Cir. 1997).................... 26, 98, 108 

Robertson v. Lucas, 753 F.3d 606 (6th Cir. 2014)........................................................................83 

Robertson v. Watson, 560 U.S. 272, 130 S. Ct. 2184, 176 L. Ed. 2d 1024 (2010).............93 

Roth v. United States DOJ, 642 F.3d 1161 (D.C. Cir. 2011)..........................................................9 

Sanchez v. United States, 50 F.3d 1448 (9th Cir. 1995)............................................................85 

Saunders-El v. Rohde, 778 F.3d 556 (7th Cir. 2015)...................................................................99 

Shelton v. Marshall, 796 F.3d 1075 (9th Cir. 2015).....................................................................29 

Sherer v. Stewart, 2008 U.S. Dist. LEXIS 118661 (W.D.Wash. 2008).....................................50 

Silva v. Brown, 416 F.3d 980 (9th Cir. 2005)...........................................................................15, 36 

Smith v. Almada, 640 F.3d 931 (9th Cir. 2011).............................................................................99 

Smith v. Cain, 565 U.S. 73, 132 S. Ct. 627, 181 L. Ed. 2d 571 (2012)..............................21, 41 

Smith v. United States, 876 F.2d 655 (8th Cir. 1989).................................................................86 

Strickler v. Greene, 527 U.S. 263, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999)..............63, 77 

Tatum v. Moody, 768 F.3d 806 (9th Cir. 2014).......................................................................48, 61 

Tennison v. City and County of San Francisco, 570 F.3d 1078 (9th Cir. 2009)..........46, 98 

Trepal v. Sec’y, Fla. Dep’t of Corr., 684 F.3d 1088 (11th Cir. 2012)........................................40 


United States ex rel. Smith v. Fairman, 769 F.2d 386 (7th Cir. 1985)............................32, 67 

United States v. Abel, 469 U.S. 45, 105 S. Ct. 465, 83 L. Ed. 2d 450 (1984)........................21 

United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976).......................... 

......................................................................................................................8, 12, 13, 32, 40, 49, 67 

United States v. Almendares, 397 F.3d 653 (8th Cir. 2005).....................................................61 

United States v. Alvarez, 358 F.3d 1194 (9th Cir. 2004)............................................................11 

United States v. Andrews, 532 F.3d 900 (D.C. Cir. 2008)..........................................................24 

United States v. Antone, 603 F.2d 566 (5th Cir. 1979)..............................................................52 

United States v. Armstrong, 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed. 2d 687 (1996)...89 

United States v. Avellino, 136 F.3d 249 (2d Cir. 1998)...............................................................53 

United States v. Aviles-Colon, 536 F.3d 1 (1st Cir. 2008)..........................................................33 

United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985)................... 

.........................................................................................................................................22, 28, 40, 94 

United States v. Bakhtiar, 994 F.2d 970 (2d Cir. 1993)..............................................................80 

United States v. Bernal-Obeso, 989 F.2d 331 (9th Cir. 1993)...........................................10, 28 

United States v. Bhutani, 175 F.3d 572 (7th Cir. 1999).............................................................53 

United States v. Bin Laden, 397 F. Supp. 2d 465 (S.D.N.Y. 2005)...........................................54 

United States v. Blanco, 392 F.3d 382 (9th Cir. 2004).........................................................49, 52 

United States v. Bortnovsky, 820 F.2d 572 (2d Cir. 1987)........................................................18 

United States v. Bryan, 868 F.2d 1032 (9th Cir. 1989)...............................................................53 

United States v. Bryant, 439 F.2d 642 (D.C. Cir. 1971)...............................................................80 

United States v. Bufalino, 576 F.2d 446 (2d Cir. 1978)..............................................................81 

United States v. Burke, 571 F.3d 1048 (10th Cir. 2009).............................................................61 

United States v. Butler, 567 F.2d 885 (9th Cir. 1978)..................................................................21 

United States v. Butt, 955 F.2d 77 (1st Cir. 1992)........................................................................36 

United States v. Certified Envtl. Servs., 753 F.3d 72 (2d Cir. 2014).......................................24 

United States v. Chapman, 524 F.3d 1073 (9th Cir. 2008).......................................................96 

United States v. Conroy, 567 F.3d 174 (5th Cir. 2009)........................................................84, 86 

United States v. Cuffie, 80 F.3d 514 (D.C. Cir. 1996)...................................................................13 

United States v. Davis, 306 F.3d 398 (6th Cir. 2002)..................................................................95 

United States v. Delgado-Marrero, 744 F.3d 167 (1st Cir. 2014)...........................................62 

United States v. Deutsch, 475 F.2d 55 (5th Cir. 1973)...............................................................54 

United States v. Diaz, 922 F.2d 998 (2d Cir. 1990)......................................................................95 

United States v. Dunn, 723 F.3d 919 (8th Cir. 2013)..................................................................61 

United States v. Espinal-Almeida, 699 F.3d 588 (1st Cir. 2012).............................................73 

United States v. Espinosa-Hernandez, 918 F.2d 911 (11th Cir. 1990)...................24, 41, 59 

United States v. Feathers, 2016 U.S. Dist. LEXIS 175313 (N.D.Cal. 2016)...........................53 

United States v. Ferrell, 2007 U.S. Dist. LEXIS 55939 (W.D.Wash. 2007)............................91 

United States v. Garcia, 562 F.3d 947 (8th Cir. 2009).................................................................11 


United States v. Garrett, 542 F.2d 23 (6th Cir. 1976)..................................................................23 

United States v. Gerard, 491 F.2d 1300 (9th Cir. 1974).............................................................22 

United States v. Giffen, 379 F.Supp.2d 337 (S.D.N.Y. 2004).....................................................56 

United States v. Gil, 297 F.3d 93 (2d Cir. 2002)............................................................................60 

United States v. Graham, 484 F.3d 413 (6th Cir. 2007).............................................................54 

United States v. Gray, 648 F.3d 562 (7th Cir. 2011)....................................................................18 

United States v. Hibler, 463 F.2d 455 (9th Cir. 1972)..........................................................42, 79 

United States v. Higgs, 663 F.3d 726 (4th Cir. 2011)..................................................................63 

United States v. Houston, 548 F.3d 1151 (8th Cir. 2008).........................................................80 

United States v. Howell, 231 F.3d 615 (9th Cir. 2000)........................................................12, 25 

United States v. Hsia, 24 F.Supp.2d 14 (D.D.C. 1998)................................................................18 

United States v. Jackson, 345 F.3d 59 (2d Cir. 2003).................................................................13 

United States v. Jernigan, 492 F.3d 1050 (9th Cir. 2007)..................................................46, 47 

United States v. Johnson, 592 F.3d 164 (D.C. Cir. 2010)....................................................16, 30 

United States v. Jordan, 316 F.3d 1215 (11th Cir. 2003)...................................................18, 19 

United States v. Kearns, 5 F.3d 1251 (9th Cir. 1993)..................................................................95 

United States v. Kohring, 637 F.3d 895 (9th Cir. 2011)........................................36, 43, 48, 89 

United States v. Labovitz, 1997 U.S. Dist. LEXIS 7541 (D.Mass. 1997)................................53 

United States v. Le Roy, 687 F.2d 610 (2d Cir. 1982)..................................................................73 

United States v. Lindell, 881 F.2d 1313 (5th Cir. 1989).............................................................30 

United States v. Mahaffy, 693 F.3d 113 (2d Cir. 2012)...............................................................44 

United States v. Martino, 648 F.2d 367 (5th Cir. 1981).............................................................23 

United States v. Mathur, 624 F.3d 498 (1st Cir. 2010)...............................................................95 

United States v. Mazzarella, 784 F.3d 532 (9th Cir. 2015).................................................23, 35 

United States v. McLean, 715 F.3d 129 (4th Cir. 2013).............................................................21 

United States v. Mejia-Mesa, 153 F.3d 925 (9th Cir. 1998)......................................................13 

United States v. Meregildo, 920 F. Supp. 2d 434 (S.D.N.Y. 2013)...................................54, 57 

United States v. Molina, 75 F.3d 600 (10th Cir. 1996)...............................................................30 

United States v. Moore, 709 F.3d 287 (4th Cir. 2013)..................................................27, 46, 94 

United States v. Morales, 746 F.3d 310 (7th Cir. 2014).............................................................17 

United States v. Morrison, 449 U.S. 361, 101 S. Ct. 665, 66 L. Ed. 2d 564 (1981)............94 

United States v. Mota, 685 F.3d 644 (7th Cir. 2012)...................................................................95 

United States v. Nagra, 147 F.3d 875 (9th Cir. 1998).................................................................86 

United States v. Nelson, 979 F.Supp.2d 123 (D.D.C. 2013)......................................................86 

United States v. Olsen, 704 F.3d 1172 (9th Cir. 2013)........................................................20, 79 

United States v. Olsen, 737 F.3d 625 (9th Cir. 2013)........................................................ 32, 102 

United States v. Pac. Gas & Elec. Co., 2015 U.S. Dist. LEXIS 84139 (N.D.Cal. 2015)........53 

United States v. Parker, 790 F.3d 550 (4th Cir. 2015).................................................................48 

United States v. Partin, 493 F.2d 750 (5th Cir. 1974).................................................................36 


United States v. Pelullo, 105 F.3d 117 (3d Cir. 1997).................................................................25 

United States v. Pena, 227 F.3d 23 (2d Cir. 2000)........................................................................11 

United States v. Perdomo, 929 F.2d 967 (3d Cir. 1991)............................................................70 

United States v. Persico, 164 F.3d 796 (2d Cir. 1999).................................................................84 

United States v. Prochilo, 629 F.3d 264 (1st Cir. 2011)..............................................................73 

United States v. Pryce, 938 F.2d 1343 (D.C. Cir. 1991)...............................................................36 

United States v. Ramos, 27 F.3d 65 (3d Cir. 1994)......................................................................24 

United States v. Risha, 445 F.3d 298 (3d Cir. 2006)....................................................................52 

United States v. Roane, 378 F.3d 382 (4th Cir. 2004).................................................................63 

United States v. Ruiz, 536 U.S. 622, 122 S. Ct. 2450, 153 L. Ed. 2d 586 (2002).................83 

United States v. Safavian, 233 F.R.D. 12 (D.D.C. 2005)..............................................................79 

United States v. Shafer, 608 F.3d 1056 (8th Cir. 2010)..............................................................11 

United States v. Shaffer, 789 F.2d 682 (9th Cir. 1986)...............................................................29 

United States v. Sigillito, 759 F.3d 913 (8th Cir. 2014)..............................................................38 

United States v. Skilling, 554 F.3d 529 (5th Cir. 2009)...............................................................18 

United States v. Sterling, 724 F.3d 482 (4th Cir. 2013)..............................................................95 

United States v. Stever, 603 F.3d 747 (9th Cir. 2010).................................................................47 

United States v. Stewart, 433 F.3d 273 (2d Cir. 2006)...............................................................55 

United States v. Tavera, 719 F.3d 705 (6th Cir. 2013).........................................................45, 71 

United States v. Torres, 569 F.3d 1277 (10th Cir. 2009)............................................................27 

United States v. Triumph Capital Group, Inc., 544 F.3d 149 (2d Cir. 2008).......................10 

United States v. Van Anh, 523 F.3d 43 (1st Cir. 2008)................................................................95 

United States v. Vega, 826 F.3d 514 (D.C. Cir. 2016)..................................................................82 

United States v. Warshak, 631 F.3d 266 (6th Cir. 2010)............................................................18 

United States v. Wilson, 901 F.2d 378 (4th Cir. 1990)................................................................63 

United States v. Wood, 57 F.3d 733 (9th Cir. 1995).............................................................49, 53 

United States v. Wright, 43 F.3d 491 (10th Cir. 1994)................................................................85 

United States v. Zuno-Arce, 44 F.3d 1420 (9th Cir. 1995)........................................................51 

Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981)........88 

Vela v. Superior Court (1989) 208 Cal.App.3d 141....................................................................11 

Virgin Islands v. Fahie, 419 F.3d 249 (3d Cir. 2005)..............................................................68, 96 

Walker v. New York, 974 F.2d 293 (2d Cir. 1992)..................................................................51, 98 

Warney v. Monroe County, 587 F.3d 113 (2d Cir. 2009)...........................................................98 

Wearry v. Cain, __U.S.__, 136 S. Ct. 1002, 194 L. Ed. 2d 78 (2016)..................35, 37, 38, 39 

White v. Smith, 696 F.3d 740 (8th Cir. 2012)..........................................................................34, 97 

Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir. 2012).........................................................34 

Williams v. Ryan, 623 F.3d 1258 (9th Cir. 2010).............................................................10, 44, 46 

Williams v. Woodford, 306 F.3d 665 (9th Cir. 2002)...................................................................22 

Williamson v. Moore, 221 F.3d 1177 (11th Cir. 2000)................................................................88 


Wilson v. Lawrence County, 260 F.3d 946 (8th Cir. 2001).......................................................98 

Wolfe v. Clarke, 691 F.3d 410 (4th Cir. 2012).................................................................................39 

Wood v. Bartholomew, 516 U.S. 1, 116 S. Ct. 7, 133 L. Ed. 2d 1 (1995)..............................30 

Yarris v. County of Delaware, 465 F.3d 129 (3d Cir. 2006).......................................................98 

Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000)...............................................................................34 

Statutes 

Cal. B&P Code ß 6086.7 (a)(2).......................................................................................................... 103 

Cal. CCP ß 2018.030(a)..........................................................................................................................90 

Cal. Evid. Code ß 1043..........................................................................................................................74 

Cal. Evid. Code ß 1103..........................................................................................................................37 

Cal. Evid. Code ß 788.............................................................................................................................37 

Cal. Evid. Code ß721(a).........................................................................................................................14 

Cal. Govt. Code ß 820.21................................................................................................................... 100 

Cal. Penal Code ß 1018.........................................................................................................................86 

Cal. Penal Code ß 1051.4(d)................................................................................................................37 

Cal. Penal Code ß 1051.4(e)................................................................................................................37 

Cal. Penal Code ß 1054(c).......................................................................................................................9 

Cal. Penal Code ß 1054.6.....................................................................................................................90 

Cal. Penal Code ß 141(c)............................................................................................................ 68, 107 

Cal. Penal Code ß 832.7(a)............................................................................................................59, 75 

Cal. Penal Code ß832.7(a)....................................................................................................................20 

Constitutional Provisions 

Cal. Const. Art. I, ß 28(b)(6)..................................................................................................................57 

Cal. Const. Art. I, ß15.................................................................................................................................9 

Cal. Const. Art. I, ß7(a)..............................................................................................................................9 

Other Authorities 

1 Jefferson’s Cal. Evidence Benchbook (4th ed).........................................................................14 

ABA Model Rules of Professional Conduct, Rule 3.8(d)........................................................ 105 

ABA Standards for Criminal Justice: Prosecution Function, Proposed Rule 3-5.4..... 104 

ABA Standards for Criminal Justice: Prosecution Function, Proposed Standard 

3-5.4(c)........................................................................................................................................................19 

ABA Standards for Criminal Justice: Prosecution Function, Proposed Standard 

3-5.4(g)........................................................................................................................................................34 

California Attorney General’s Opinion 12-401, 98 Ops.Cal.Atty.Gen. 54 (2013)............59 

California Attorney General’s Opinion 12-401, 98 Ops.Cal.Atty.Gen. 54 (2015)............20 


California Rules of Professional Conduct, Proposed Rule 5-110...................................... 105 

CEB, California Trial Objections (2017)...........................................................................................14 

Kathleen M. Ridolfi, Maurice Possley, and Northern California Innocence Project 

Publications, Preventable Error: A Report on Prosecutorial Misconduct in California 

1997-2009. Northern California Innocence Project Publications, Oct. 2010............... 102 

North Carolina Rules of Professional Conduct, Rule 8.6...................................................... 106 

Paul C. Gianelli, Wrongful Conviction and Forensic Science: The Need to Regulate 

Crime Labs, 86 N.C.L. Rev. 163 (2007).............................................................................................32

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