Deputy District Attorney Tammy Spurgeon

Orange County District Attorney Office

The prosecution has a duty under the Fourteenth Amendment’s due process clause to disclose evidence to a criminal defendant when the evidence is both favorable to the defendant and material on either guilt or punishment.

Brady v. Maryland (1963) 373 U.S. 83

1. Evidence must be favorable to the accused, either because it is exculpatory or it is impeaching;

2. That evidence was suppressed by the state, either willfully or inadvertently;

3. The evidence was material to the issue of guilt or punishment.

Strickler v. Greene (1999) 527 U.S. 263

Evidence is favorable if it hurts the

prosecution or helps the defense. It can be

exculpatory or impeach a prosecution

witness. Impeachment evidence is

favorable Brady material when the reliability

of the witness may be determinative of a

criminal defendant’s guilt or innocence.

Strickler v. Greene (1999) 527 U.S. 263

Giglio v. United States (1972) 405 U.S. 150

The suppression of evidence that is materially favorable to the accused violates due process regardless of whether it was intentional, negligent or inadvertent.

The prosecutor’s duty to disclose material exculpatory evidence exists regardless of whether there has been a request by the accused.

Kyles v. Whitley (1995) 514 U.S. 419, 433

Prosecution must disclose evidence

that is actually or constructively in its

possession or accessible to it. The

individual prosecutor has a duty to

learn of any favorable evidence

known to others acting on the

government’s behalf or assisting in

the case. Prosecution team includes police officers

and lab personnel.

Kyles v. Whitley (1995) 514 U.S. 419

United States v. Blanco (2004) 392 F.3d 382

Garden Grove police officers were pursuing Brown as he was leaving a bar. Brown fired 8 shots, killing Officer Donald Reed and wounding 4 other people. Brown claimed a diminished capacity defense saying he was under the influence of methamphetamine. At trial the DA refuted this claim with evidence that his blood sample was negative for any drugs. Brown was sentenced to death.

Unknown to the DA, Brown’s blood was initially tested using radioactive immunoassay (RIA) and was positive for PCP. A gas chromatography mass spectrometry was negative for drugs.

Case was overturned for prosecution’s failure to turn over the RIA report.

“Responsibility for Brady compliance lies exclusively with the prosecution, including the duty to learn of any favorable evidence known to the others acting on the government's behalf. What ever the reason for failing to discharge that obligation, the prosecution team remains accountable for the consequences.”

The individual prosecutor is presumed to have knowledge of ALL information gathered in connection with the government’s investigations and extends beyond the contents of the prosecution’s case file.

Prosecutor has the obligation to determine if the lab’s files contained any exculpatory evidence, such as the results of the RIA test and disclose it to defendant. Prosecutor remained ultimately responsible when the defense did not receive a copy.

In re Brown (1998) 17 Cal.4th 873

The duty of disclosure does not end when

the trial is over. After a conviction the

prosecutor is also bound by the ethics of his

office to inform the appropriate authority of

after acquired or other information that

casts doubts upon the correctness of the

conviction.

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

Whitlock v. Brueggeman (2012) 682 F.3d 567

Evidence is material if there is a reasonable

probability that had the evidence been disclosed

to the defense the result of the proceeding would

have been different. In general impeachment evidence has been found to be

material where the witness at issue supplied the only

evidence linking the defendant to the crime. In contrast,

a new trial is generally not required when the testimony of

the witness is corroborated by other testimony.

• United States v. Petrillo (1987) 821 F.2d 85,90

Garcia case: Victim and friend were pushing a disabled vehicle on a road when defendant hit victim causing his leg to be amputated. Defendant’s BAC was .32. CHP Officer Mason formed expert opinion defendant was driving 56 mph and at an unsafe speed. Defendant was convicted of 23153 VC. Later the prosecutor discovered Officer Mason’s speed calculations were not consistent with current standards in the field and he had made a significant number of errors with regard to his speed calculations. CHP ordered him not to testify as an accident reconstruction specialist until he received more training.

Court found this information clearly constitutes evidence relating to Mason’s credibility as the prosecutor’s expert witness and was exculpatory and should have been turned over to the defense. Defendant was denied due process by the withholding of the evidence on the credibility of Mason, and was convicted on the basis of evidence that has now been demonstrated to be incorrect.

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

1. Are the new reports favorable to the accused?• Could it help the defense or impeach the expert?

2. Was it disclosed by the state?• Before trial-Was new interpretation done and disclosed

to defense?

• Post-trial- Was new mixture interpretation done and

sent to defense?

3. Is the new report material to the issue of guilt or

punishment?• Depends on the facts of the case

• Penal Code section 1111 evidence (corroboration of

accomplice testimony)

Lab reviews mixture interpretation report

and applies new guidelines. If there is a

different conclusion, the report is sent to

the DA office for review.

Confirm if criminal case was filed and where it is in court system. If case is still pending, report is sent to assigned DA for discovery.

If case has been resolved through trial or plea, lab reports and case facts must be reviewed to determine materiality. Is there a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different.

If report is material, a letter and the crime lab reports are sent to the defense attorney.

Many cases involve multiple

defendants and multiple pieces

of DNA evidence.

• Piece of DNA evidence against

one suspect can be Brady material

on co-defendant.

• One piece of DNA evidence could

be highly probative while another

piece of evidence does not have

probative value.

Cases not filed: 34• 10 cases rejected

• 24 cases not submitted for filing

Cases dismissed before new report issued: 2

Cases pending when new report was issued: 9• Reports sent to trial DA to discover to defense.

Cases determined not to be Brady material: 30• Reports not favorable to defendant: 19

• Cases include defendant was initially excluded from mixture and new report found the mixture not suitable for comparison.

• 1 Case where frequency estimate increased. Formerly more rare than 1 in 1 million, new report had frequency estimate more rare than 1 in 20 million.

• Not material because other evidence of guilt: 11

• 288 case, in original report defendant was present in victim’s neck and breast swab, 1 in 1 trillion and on victim’s hand swab. New report mixture from hand is no longer suitable for comparison. Defendant admitted touching victim with his hand.

Car burglary, in original report 3 person mixture on Maglite, defendant was contributor, 1 in 90,000. New report, 1 in 320. Two witnesses identify defendant as person breaking in to the car and defendant admits he “may” have broken the window and taken the property. Defendant pled guilty.

Cases determined to be potential Brady material and discovered to defense: 25

• One case where the ONLY evidence of identity was the DNA evidence. Reports changed from 1 in 1 trillion to 1 in 1000. Defendant pled guilty and was out of custody when case was reviewed.

• Examples of frequency change: 1 in 500,000 - 1 in 2000 3 defendants are minor contributors, 1 in 3000 - not suitable for

comparison 1 in 1 trillion - 1 in 130,000 1 in 1 billion - not suitable for comparison 1 in 1 million – not suitable for comparison 1 in 25,000-not suitable for comparison 1 in 100-not suitable for comparison

If materiality was a close factual call, erred on side of disclosure.

• In re Miranda: Death penalty case where prosecutor did not turn over evidence that showed their witness was incredibly biased and being forced to testify by the prosecutor.

• When case was reversed the Court stated, “To the extent the prosecutors are uncertain about the materiality of a piece of evidence, the prudent prosecutor will resolve doubtful questions in favor of disclosure.”

In re Miranda (2008) 43 Cal.4th 541