A Third Government Misunderstanding: About Its Basic Brady Obligation

June 19, 2012
By Hanging Out with Carl Gunn


  • Post-conviction appellate Brady standard “materiality” requirement is prejudice requirement that doesn’t apply pretrial.
  • Pretrial Brady standard should be just any evidence that tends to help the defense, as explained by district courts cited with approval by the Ninth Circuit.
  • Get court orders because government doesn’t agree with and use this standard.


In my last post, I talked about the government’s seemingly common misunderstanding about the scope of the rule requiring disclosure of expert testimony. In today’s post, I’d like to talk about another common government misunderstanding about the scope of discovery in another area: the far more fundamental – and constitutional – right to Brady material.

The problem here is the government’s failure to distinguish between the post-trial appeal Brady standard and the pretrialBrady standard. How often have you heard the government say – or seen it write: “The government understands and will comply with its obligations under Brady.” (That’s an exact quote from a government memorandum of points and authorities in one of my cases, by the way.) Then they go on to say things like (exact quotes from the same memorandum of points and authorities): (1) “The government is only required to disclose evidence that is material to guilt or punishment”; (2) “Evidence is material [only?] when it creates a reasonable probability that the result of the proceeding would be different”; and (3) “Thus, the standard for production of Brady material by the government is quite high – reasonable probability that the evidence would change the result of the proceeding” (emphasis in government original).

This emphasis on the “reasonable probability” language – which comes out of appellate cases applying Brady in the post-trial, post-conviction context – mistakenly conflates the standard for what evidence a prosecutor ought to disclose with the standard for when an improper failure to disclose requires reversal of a conviction which has already taken place. As our Central District of California’s District Judge Dean Pregerson has explained in a wonderful pretrial discussion of the Brady standard:

Numerous cases define the Brady obligation in the context of appellate review considering ramifications of a prosecutor’s failure to disclose evidence. Using this post-trial perspective, Brady held that it would be a due process violation only if the suppressed evidence was “material.” Courts have concluded that “[e]vidence is considered material ‘only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’”

. . .

This standard is only appropriate, and thus applicable, in the context of appellate review. Whether disclosure would have influenced the outcome of a trial can only be determined after the trial is completed and the total effect of all the inculpatory evidence can be weighed against the presumed effect of the undisclosed Brady material. This analysis obviously cannot be applied by a trial court facing a pretrial discovery request.

. . .

Brady’s materiality standard determines prejudice from admittedly improper conduct. It should not be considered as approving all conduct that does not fail its test. Just as unreasonably deficient assistance of counsel is improper even if it does not meet the prejudice prong of Strickland[v. Washington, 466 U.S. 668 (1984)] and result in a Sixth Amendment violation, so suppression of exculpatory evidence is improper even if it does not satisfy the materiality standard of Brady and result in a due process violation. Though an error may be harmless, it is still error.

United States v. Sudikoff, 36 F. Supp. 2d 1196, 1198-99 (C.D. Cal. 1999) (citations omitted).

Judge Pregerson then explained that the “materiality” overlay shouldn’t be applied in the pretrial context. In that context, he explained, the test for Brady material is the more basic definition of “evidence favorable to the accused.” Sudikoff, 36 F. Supp. 2d at 1199. And the meaning of “favorable” “is not difficult to determine.” Id. “In the Brady context, ‘favorable’ evidence is that which relates to guilt or punishment, and which tends to help the defense by either bolstering the defense’s case or impeaching prosecution witnesses.” Sudikoff, 36 F. Supp. 2d at 1199 (citations omitted). Judge Pregerson then went on to discuss the meaning of “evidence” and concluded that it is not limited to material that is “evidence” in the sense of being admissible at trial, but includes any material “that is likely to lead to favorable evidence that would be admissible.” Id. at 1200.

It’s this Sudikoff opinion that’s the better guidance for the application of Brady in the pretrial context. The Ninth Circuit has “note[d] favorably the thoughtful analysis set forth” in Sudikoff,United States v. Price, 566 F.3d 900, 912 n.13 (9th Cir. 2009), and several other district courts have also recognized the logic of its reasoning, see, e.g., United States v. Safavian, 233 F.R.D. 12, 16 (D.D.C. 2005); United States v. Acosta, 357 F. Supp. 2d 1228, 1233 (D. Nev. 2005); United States v. Carter, 313 F. Supp. 2d 921, 924-925 (E.D. Wis. 2004); United States v. Peitz, No. 01 CR 852, 2002 U.S. Dist. LEXIS 2338, at *7-8 (N.D. Ill. Feb. 13, 2002). We should educate the government and the court in this district (and others) to make sure that prosecutors’ disclosure is of all favorable evidence, not just the evidence that they in their non-neutral wisdom may judge sufficiently significant to create that “reasonable probability” of a more favorable result. As one of the district courts following Sudikoff explained it:

Most prosecutors are neither neutral (nor should they be) nor prescient, and any such judgment necessarily is so speculative on so many matters that simply are unknown and unknowable before trial begins: which government witnesses will be available for trial, how will 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.

Safavian, 233 F.R.D. at 16.

So let’s remind prosecutors and courts of this and push them to apply the right standard. It will make the prosecutors’ Bradycompliance at least a little less of the fox guarding the henhouse.

July 3, 2012 Addendum:

Mike Filipovic,from the Seattle Federal Public Defender, who made a comment on this blog noting a Washington district court order in which the government had been ordered to comply with the Sudikoff standard pretrial, was kind enough to share with us the order in that case and the motion which got it. They’re attached here and here.