In the previous article, I wrote about Brady evidence, but I may have left you wondering, in what instances has Brady Evidence been used in the past?
What is Brady Evidence?
First, let’s recap Brady Evidence.
Brady Evidence is something that is exculpatory or mitigating.
Exculpatory meaning something that tends to show that you are not guilty of the offense. It doesn’t have to prove you are not guilty, it just tends to show that you are not guilty of the offense.
Mitigation evidence is, self-evidently, mitigating. If something is mitigating, then that means that it tends to show you would’ve received a lesser punishment or it would have gone to show more leniency in your case.
Examples of Brady Evidence
The Supreme Court of the United States has said that Brady Evidence is the type of evidence that if you have it in your case and you produce it in a writ application, then it will overturn your case.
Here are a few examples of what exactly constitutes Brady Evidence
- The government failing to disclose impeachment evidence when they promised immunity to a witness in exchange for testimony.
- The police failing to disclose eyewitness testimony that contradicted another witness’ testimony which would have tended to show the person was not guilty of the offense.
- The prosecution team purposely misrepresenting pants as having blood stains on them, when in fact, the stains were from paint.
- Failure to reveal an immunity deal with a witness.
- Failure to produce CPS records that contained exculpatory materials.
- Failing to disclose that the prosecution team had rehearsed testimony with two witnesses in a case, especially when those witnesses wound up taking the stand and denying that they had rehearsed their testimony with the prosecution.
- Impeachment evidence that would tend to undercut the truthfulness of a witness against you.
- Failure to disclose a handwritten statement which was a victim’s recanting of the offense that was alleged.
- Failure to disclose a picture of the defendant with a black eye at the time of the arrest when his defense was self-defense.
- Failure to tell the defense where a material witness was in the name of that witness.
- Failure to disclose inconsistent statements between grand jury testimony and trial testimony.
- Failure to disclose Inconsistent statements given in prosecutorial interviews.
- Inconsistent statements of witnesses.
- The existence of medical evidence showed that the defendant was insane at the time of the offense.
- The fact that the police officer aided in obtaining a release of the main witness so that the witness could not be found.
- A witness statement corroborated the defendant’s argument that he shot the victim in self-defense.
- Failure to disclose a doctor’s report which showed that the defense’s position would’ve been strengthened and that the report would have refuted prosecutorial evidence.
- Failure to disclose copies of a Department of Human Resources report showed that no sexual offense had occurred.
- A witness’ statement would’ve shown that the defendant was not in a physical position to be able to commit the offense.
- Intentional actions of the prosecutor to cause a mistrial and avoid disclosing evidence that would have been exculpatory.
- Exculpatory photographs.
- The fact that another person had been arrested for the same crime.
- Evidence that the former police officer was the initial suspect in the murder for which the defendant was convicted.
- The knowledge that the prosecutor was pursuing a theory he knew to be unsupported by the evidence.
- Polygraph results showed the defendant to be telling the truth.
- Information showing police intimidation of witnesses.
- Evidence that the state’s only eyewitness had initially identified someone else as the suspect.
- Racial misidentification where prosecutors failed to reveal the prior identification issues.
- Using hypnosis enables a witness to identify the victim or to identify the defendant.
Evidently, there are many examples of Brady material.
A lot of it deals with inconsistent statements, inconsistent evidence, hiding things or things not just for the prosecutors or anyone on the state team.
As you think about this in the context of your case, think about how you may be able to use undisclosed Brady material after the fact.
More information on the 1963 landmark Brady vs Maryland case that this is based on is here.
About The Attorney
Jacob Blizzard is board certified in both criminal law and criminal appellate law.
He regularly practices in the areas of state and federal criminal defense, criminal appeals, post conviction writs of habeas corpus.
In Texas, there are more than 100,000 attorneys licensed to practice, but only 7,450 are board certified.
In the entire State of Texas, as of the 2019 certification year, there were only 87 attorneys board certified in both criminal law and criminal appellate law, making Mr. Blizzard one of 0.087% of attorneys in Texas to hold both of those certifications.