Brady disclosures [MCLE]

Criminal Law

January 2017

By Elia Pirozzi

Under the 14th Amendment to the U.S. Constitution, the prosecution must disclose to the defense evidence favorable and material to the accused either to guilt or punishment (i.e., exculpatory evidence). Brady v. Maryland, 373 U.S. 83 (1963). Bench officers and attorneys handling criminal cases must be familiar with this important area of law.

The objective of this article and self-study test is to review Brady disclosures required by the Constitution. Readers will learn about the prosecution's duty under Brady, limitations on the duty, what constitutes favorable and material evidence, and how the Brady duty intersects with the right to discovery under Pitchess v. Superior Court, 11 Cal. 3d 531 (1974).

Brady Duty

Brady and its progeny serve "'to restrict the prosecution's ability to suppress evidence rather than to provide the accused a right to criminal discovery.'" People v. Williams, 58 Cal. 4th 197 (2013), quoting People v. Morrison, 34 Cal. 4th 698 (2004). "In order that a defendant may secure a fair trial as required by the due process clause, 'the prosecution has a duty to disclose all substantial material evidence favorable to an accused. That duty exists regardless of whether there has been a request for such evidence, and irrespective of whether the suppression was intentional or inadvertent.'" Izazaga v. Superior Court, 54 Cal. 3d 356 (1991).

"By requiring the prosecutor to assist the defense in making its case, the Brady rule represents a limited departure from a pure adversary model. The [U.S. Supreme] Court has recognized, however, that the prosecutor's role transcends that of an adversary: he 'is the representative not of an ordinary party to a controversy, but of a sovereignty ... whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done.'" United States v. Bagley, 473 U.S. 667 (1985). Therefore, the Brady rule does not displace the adversary system as the primary means by which truth is uncovered. The prosecution's discovery obligations under Penal Code Section 1054.1 are independent from its constitutional duty under Brady.

There are three parts to a Brady violation: (1) Evidence must be favorable to the accused (i.e., exculpatory or impeaching); (2) evidence must be suppressed by the state; and (3), suppressed evidence must be material to guilt or punishment (i.e., prejudice must have ensued). Strickler v. Greene, 527 U.S. 263 (1999).

Brady applies in criminal trials, including the penalty phase of a death penalty trial. Banks v. Dretke, 540 U.S. 668 (2004). Brady also applies in preliminary hearings. People v. Gutierrez, 214 Cal. App. 4th 343 (2013); see Bridgeforth v. Superior Court, 214 Cal. App. 4th 1074 (2013) (the standard of materiality in a preliminary hearing is whether there is a reasonable probability that disclosure of the evidence would have altered the magistrate's probable cause determination). In addition, Brady applies to juvenile delinquency proceedings. J.E. v. Superior Court, 223 Cal. App. 4th 1329 (2014).

The constitutional duty of disclosure:

* is exclusive to the prosecution. In re Brown, 17 Cal. 4th 873 (1998).

* includes impeachment evidence. Bagley.

* extends past the prosecution's file, applying to favorable evidence known by others acting on government's behalf, including the police. Kyles v. Whitley, 514 U.S. 419 (1995).

* is a continuing obligation. Imbler v. Pachtman, 424 U.S. 409 (1976).

Limitations on Duty

A prosecutor has no general duty to obtain and disclose all evidence that might be

beneficial to defense. People v. Panah, 35 Cal. 4th 395 (2005). "[T]he law does not impose upon law enforcement agencies the requirement that they take the initiative, or even any affirmative action, in procuring the evidence deemed necessary to the defense of an accused." In re Koehne, 54 Cal. 2d 757 (1960). "There is no general duty on the part of the police or the prosecution to obtain evidence, conduct any tests, or 'gather up everything which might eventually prove useful to the defense.'" In re Littlefield, 5 Cal. 4th 122 (1993). But the prosecutor must undertake a complete examination of the facts of the case and explore any leads developed by such facts in the interest of fundamental fairness and due process.

If the exculpatory value of evidence is not readily apparent, a specific request by the defense is required to trigger the duty of disclosure. In re Steele, 32 Cal. 4th 682 (2004). If the material in question is in the possession of the defense or available via reasonable diligence, there is no duty to disclose. People v. Salazar, 35 Cal. 4th 1031 (2005). The prosecution does not have a constitutional duty under Brady to disclose inculpatory evidence the prosecution intends to introduce at trial. Gray v. Netherland, 518 U.S. 152 (1996). However, the prosecution does have a statutory duty to make such a disclosure under Penal Code Section 1054.1.

The prosecutor does not have a duty to provide the defense with evidence to impeach the prosecutor's witnesses prior to plea bargaining. United States v. Ruiz, 536 U.S. 622 (2002). The California Supreme Court has seemingly left open the issue of whether exculpatory evidence must be disclosed prior to entry of guilty plea. See In re Miranda, 43 Cal. 4th 541 (2008) ("Nor need we decide the broad question whether or to what extent the prosecution has a duty to disclose evidence favorable to a criminal defendant before the defendant pleads guilty"). Nevertheless, failure to disclose exculpatory evidence prior to a plea could warrant withdrawal of the guilty plea. See People v. Ramirez, 141 Cal. App. 4th 1501 (2006) ("the least surprise or influence causing a defendant to plead guilty when he has any defense at all should be sufficient cause to permit a change of plea from guilty to not guilty").

Evidence that Is Favorable and Material

"Evidence is 'favorable' if it either helps the defendant or hurts the prosecution, as by impeaching one of its witnesses." In re Sassounian, 9 Cal. 4th 535 (1995). Such items include information which could tend to exonerate or mitigate punishment, evidence which helps to establish a defense, material relating to a witness's mental or physical history tending to adversely reflect on credibility and information that testimony was motivated by animosity against a defendant.

Exculpatory and impeachment evidence also includes information relating to charges pending against prosecution witnesses. People v. Martinez, 103 Cal. App. 4th 1071 (2002); People v. Coyer, 142 Cal. App. 3d 839 (1983). Such evidence is useful to the defense because the defense during trial "is permitted to inquire whether charges are pending against a witness as a circumstance tending to show that the witness may be seeking leniency through testifying." People v. Claxton, 129 Cal. App. 3d 638 (1982). Also, the defense is entitled to know whether a prosecution witness is on probation. Millaud v. Superior Court, 182 Cal. App. 3d 471 (1986). Millaud held, "Such information must be provided regardless whether the witness is within the jurisdiction; for, even though the prosecutor may have no actual influence over a witness's probationary status, 'it is the witness' subjective expectations, not the objective bounds of prosecutorial influence, that are determinative' for purposes of impeachment."

In order to establish a violation of due process under Brady, the defense must establish that the favorable evidence which was not disclosed was material to either guilt or punishment, irrespective of good faith or bad faith of the prosecution. 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.'" People v. Masters, 62 Cal. 4th 1019 (2016); Cone v. Bell, 556 U.S. 449 (2009). Materiality thus "requires more than a showing that the suppressed evidence would have been admissible, that the absence of the suppressed evidence made conviction 'more likely,' or that using the suppressed evidence to discredit a witness's testimony 'might have changed the outcome of the trial.'" Under Kyles, while the tendency and force of undisclosed evidence is evaluated item by item, its cumulative effect for purposes of materiality must be considered collectively.

The requirement of materiality ensures that a violation is established only when there was a reasonable probability that the accused did not receive a fair trial, one "resulting in a verdict worthy of confidence." Kyles. Although Brady disclosure issues may arise "in advance of," "during," or "after trial" the test is always the same - Brady materiality is a constitutional standard required to ensure that nondisclosure will not result in the denial of defendant's due process right to a fair trial. United States v. Agurs, 427 U.S. 97 (1976); Eulloqui v. Superior Court, 181 Cal. App. 4th 1055 (2010). The inquiry as to materiality includes consideration of the adverse effect of nondisclosure on defense investigations and trial strategies (i.e., preparation and presentation of the defendant's case). People v. Verdugo, 50 Cal. 4th 263 (2010); People v. Hoyos, 41 Cal. 4th 872 (2007).

Intersection of Brady and Pitchess

A Pitchess motion is used to discover information in a law enforcement officer's personnel file or other police agency record that is relevant to a criminal case, such as an officer's alleged prior use of excessive force or falsification of information. A criminal defendant claiming police misconduct "may compel discovery by demonstrating that the requested information will facilitate the ascertainment of the facts and a fair trial" (i.e., prior use of excessive force, racial or ethnic bias, falsification of information, or planting evidence). The motion is codified in Evidence Code Section 1043. Pitchess discovery is available in a variety of contexts, including criminal and civil cases as well as administrative proceedings. Evid. Code Section 1043(a).

In order to obtain Pitchess discovery, the defense must identify purported officer misconduct, describe a proposed defense; establish a "logical link" between the pending charge and the proposed defense and articulate how the requested discovery will support the defense or impeach the officer's version of events. Warrick v. Superior Court, 35 Cal. 4th 1011 (2005).

"Under Brady, evidence is 'material' only if it is reasonably probable a prosecution's outcome would have been different had the evidence been disclosed. [citation omitted.] By contrast, '[u]nder 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 [information] that meets Brady's test of materiality necessarily meets the relevance standard for disclosure under Pitchess. ([Evid. Code,] § 1045, subd. (b).)'" People v. Superior Court (Johnson), 61 Cal. 4th 696 (2015).

In Johnson, the California Supreme Court held that the prosecution must comply with the Pitchess procedures under Evidence Code Section 1043 before it could examine officer personnel records for material subject to Brady disclosure. The court reversed the Court of Appeal and concluded that permitting the defense to seek its own Pitchess discovery preserves the defendant's due process rights under Brady - the prosecution has no constitutional duty to conduct the defendant's Pitchess investigation for him. Johnson. Johnson determined, "Because a defendant may seek potential exculpatory information in ... personnel records just 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."

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