Another Update on a Not So Recent Discovery Post

June 16, 2015
By Hanging Out with Carl Gunn


  • Two recent Ninth Circuit opinions support District Judge Pregerson’s opinion in United States v. Sudikoff that prosecutors have an obligation to disclose any favorable evidence, not just favorable evidence they think might affect the result.
  • Comstock v. Humphries says that evidence is favorable when it has any affirmative, evidentiary support for the defendant’s case or has any impeachment value.
  • United States v. Mazzarella says that a Brady violation has three components “in the post-trial context,” thereby suggesting the components are different in the pretrial context.



In a couple of past posts, I’ve talked about District Judge Dean Pregerson’s opinion in United States v. Sudikoff, 36 F. Supp. 2d 1196 (9th Cir. 2009), in which he explained that the “materiality” requirement we see in post-conviction Brady cases – requiring “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different” – doesn’t apply at the pretrial stage.  (See “A Third Government Misunderstanding: About Its Brady Obligation” in the June 2012 link at the right and “An Update on a Not So Recent Discovery Post” in the October 2014 link at the right.)  Judge Pregerson explained that at the pretrial stage there doesn’t need to be such a threshold showing and the government must disclose any evidence “favorable to the accused,” which he defined as any evidence “which tends to help the defense by bolstering the defense’s case or impeaching prosecution witnesses.”  Id. at 1199.  As also noted in the prior posts, this recognition of a different, lower pretrial standard has been cited with approval in at least two Ninth Circuit opinions.  See United States v. Olsen, 704 F.3d 1172, 1183 n.3 (9th Cir. 2013); United States v. Price, 566 F.3d 900, 912 n.13 (9th Cir. 2009).

This post is just to offer another update about a couple of additional, recent Ninth Circuit cases that support this distinction, though a little more indirectly.  The new cases are both post-conviction Brady cases, so on their facts they do apply the materiality/prejudice requirement requiring a reasonable probability the result would have been different.  Still, they contain a couple of little nuggets that are at least indirectly supportive of the pretrial/post-conviction distinction suggested in Sudikoff (as well as some other nice principles that aren’t the subject of this post, but are additional reasons to read the cases).

The first case (actually, the second in time, but first in degree of helpfulness) is Comstock v. Humphries, No. 14-15311, 2015 WL 2214647 (9th Cir. May 12, 2015).  After characterizing the three “components” of a Brady violation as (1) the evidence being favorable to the accused, (2) the evidence having been suppressed, and (3) suppression of the evidence having been prejudicial, see id. at *4, the court offered the following discussion of what it means to be “favorable”:

The Nevada Supreme Court did not make a clear determination as to whether Street’s [the theft victim] recollections were favorable to Comstock.  The court concluded that the information in the [suppressed prior witness] statement was “mere speculation” that did “not contradict [Street’s] trial testimony or rise to the level of a recantation” and had only “minimal” impeachment value.  In so holding, the court may have intended to suggest that Street’s recollections were not favorable.  However, whether evidence is favorable is a question of substance, not degree, and evidence that has any affirmative, evidentiary support for the defendant’s case or any impeachment value is, by definition, favorable.  See Strickler [v. Greene], 527 U.S. [263,] 281-82 [(1999)].  Although the weight of the evidence bears on whether its suppression was prejudicial, evidence is favorable to a defendant even if its value is only minimal.  See id.; Milke [v. Ryan], 711 F.3d [998,] 1012 [(9th Cir. 2013)].

Comstock, 2015 WL 2214647, at *5 (emphasis added).  This corresponds nicely with Judge Pregerson’s definition of “favorable” in Sudikoff and so provides some nice additional support for his reasoning.

The nugget in the second opinion – United States v. Mazzarella, 784 F.3d 532 (9th Cir. 2015), is a little less shiny, but still suggestive.  It’s in the form of a negative pregnant.  It prefaces its statement of the three “components” of a Brady violation, by stating: “In the post-trial context, a Brady violation has three components: . . . .”  Id. at 538 (emphasis added).  The negative pregnant of this is that the test in the pretrial context is different.  And the way it is different is in not requiring the showing of prejudice in the form of a reasonable probability of a different result.  In the pretrial context, the evidence must simply be favorable in the sense of providing, in the words of the Comstock opinion quoted above, “any affirmative, evidentiary support for the defendant’s case or any impeachment value.”  (Emphasis added.)

So keep pushing for the use of this standard for pretrial Brady disclosure.  Prosecutors should be ordered to disclose any evidence favorable to the defense, not just the evidence that in their view might affect the result.