Brady Obligations

DC prosecutors face few sanctions when they withhold evidence that could prove someone’s innocence or impact the severity of the punishment.

  • 9 Minute Read

The Brady obligation was articulated in the Supreme Court case Brady v. Maryland: it requires prosecutors to proactively turn over evidence that is material to show the defendant’s guilt or punishment. In practice, in DC, prosecutors have not shared evidence, leading to some cases being overturned on appeal, mistrials, and reversals of convictions after someone has spent years in prison. Places like Colorado and New York have clarified through their rules that the evidence prosecutors must provide is material to a defendant’s innocence or punishment, and have established consequences if prosecutors do not follow the order. The DC Superior Court should amend the existing written Brady orders to ensure material evidence is provided to the defense as soon as practical after charges are filed and as soon as evidence comes into a prosecutor’s possession.

What you need to know

The Brady obligation requires key evidence to be turned over to the defense to ensure a fair trial.

Brady obligations were articulated in the 1963 Supreme Court case  Brady v. Maryland. The ruling establishes that prosecutors must proactively disclose key evidence to the defense, even without a specific request. This includes any evidence that could weaken the prosecution’s case or change the outcome, regardless of whether the prosecutor thinks it is relevant to their own strategy of winning a guilty verdict. The case  Brady v. Maryland focused on a man who was wrongly convicted of first-degree murder, because prosecutors suppressed evidence that his accomplice confessed to the actual killing. The Supreme Court interpreted in that case,  “[t]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963).   In further case law,  the Supreme Court interpreted that if the prosecution has any impeachable information, they must hand it over.  Giglio v. United States, 405 U.S. 150 (1972).  This includes evidence collected on the government’s behalf by the police, even if the prosecutor at the time does not know that evidence exists.   Kyles v. Whitley, 514 U.S. 419, 438 (1995).  As the Supreme Court stated in  Brady v. Maryland, “[s]ociety wins not only when the guilty are convicted but when criminal trials are fair” and that a prosecutor should not be the “architect of a proceeding that does not comport with standards of justice.”

Prosecutors interpret what should be turned over to the defense.

Prosecutors can interpret and decide what evidence is disclosed before a trial. This means that they have the authority to interpret what is exculpatory evidence, or evidence that shows that the person is not guilty of the crime or that the defendant’s actions were either justified or excused. They also have the authority to decide what is “material” evidence, or evidence and information that is significant enough to determine the issue. Even if a prosecutor acts in good faith, they do not necessarily know the defense’s theory of the case and what the defense discovered through their investigation, and thus, they cannot know what is objectively material. The Innocence Project compiled some examples where, upon appeal, prosecutors were shown to have not complied with Brady by withholding evidence that included:

DC Prosecutors do not always fulfill their Brady Obligations.

Multiple cases have been documented in which the United States Attorney’s Office for the District of Columbia (USAO-DC) decided not to hand over evidence to the defense as required by law. In 2017, Ivan Robinson was convicted of unlawfully prescribing controlled substances and sentenced to 135 months in prison. He appealed, alleging that the prosecution violated Brady by withholding three reports that were favorable to him. Initially, his claims were rejected, but on appeal, the decision was reversed and a new trial was ordered. In a second case, a mistrial was granted in a murder trial when the USAO-DC failed to disclose that the eyewitness expressed doubts about his selection of the defendant’s photograph to the detective within days of the identification procedure and that he reiterated those doubts to the grand jury.  According to an analysis of the National Registry of Exonerations, a database that collects, analyzes, and disseminates information about all known exonerations of innocent criminal defendants in the United States, the most common contributing factor for those exonerated from homicide was official misconduct, which occurred in 73 percent of all cases.  

The lack of clear timelines for sharing evidence undermines a person’s right to a fair trial.

Early disclosure of Brady evidence is essential for the defense to be able to use it during a trial. One key issue reducing the effectiveness of Brady is the lack of established timelines for prosecutors to disclose evidence. The current rule of procedure instructing prosecutors on their obligations states that Brady evidence must be disclosed in a “timely manner.” This is a vague and open-ended direction that, in practice, means prosecutors could strategically delay sharing evidence until the last minute. A defense attorney may suddenly be forced to analyze evidence on the spot, making it much harder to get expert witnesses to counter a perspective and for defense counsel to be properly prepared if there is a plea negotiation. In Miller v. United States, 14 A.3d 1094 (D.C. 2011), for example, the prosecution waited until the evening before opening statements to disclose evidence from the prosecution’s main eyewitness, who disclosed that the defendant was likely left-handed, although the gun under consideration was fired by someone likely to be right-handed. If the defense had this information earlier, it could have potentially led to the discovery of additional evidence supporting the defendant’s innocence. 

Delaying trials does not solve the problem of a sudden disclosure of evidence.

If evidence is disclosed at the last minute to the defense, a judge may offer a continuance, or delay the trial and grant more time for the counsel to consider the evidence they just received. This creates new problems on its own. Evidence can become outdated or impossible to obtain. For example, memories of witnesses over time can fail, witnesses can move away from the district or city, and surveillance footage can get deleted. It also means the defense may be forced to develop an entirely new strategy around the case, wasting resources and delaying justice. 

Prosecutors are rarely sanctioned for not complying with their Brady obligations.

A study in the Journal of Criminal Law and Criminology published by Duke Law School reviewed five years of Brady claims, including 800 cases that alleged that evidence was not shared with the defense according to the Brady rule. The authors wrote, “despite suggestions in some quarters that prosecutorial misconduct is not a major problem, courts found Brady violations in 10 percent of the cases in our study. Prosecutors, not police, were responsible for most violations, and they were almost never referred to the Bar for discipline.” The authors state that 64 percent of the time a court sustained a Brady claim, prosecutors knew of the evidence and failed to produce it – the rest concerned evidence known to only the police, police and prosecutors together, or the courts did not state who was responsible. In a DC case, prosecutors were sanctioned with a year probation after they concealed evidence showing that their lead witness, a corrections officer, had a history of falsifying reports. This omission led to the incarceration of an innocent individual for four years, and shockingly, both prosecutors in that case, Mary Chris Dobbie and Reagan Taylor, continued to work for the Justice Department for years after their one-year probation ended.  In sharp contrast to the practices of the  USAO-DC, in Northern Virginia, the Commonwealth Attorney for Arlington County has publicly declared they will use more discretion to hand over evidence related to traffic offenses, consistent with Brady. 

Federal law now requires courts to issue a written order confirming Brady obligations.

A federal law passed by the U.S. Congress and signed by President Donald Trump in 2020 led to updated federal rules related to criminal procedure and Brady obligations. The updated law requires judges to issue a written order to prosecutors at the start of each case, which outlines their legal duties to share evidence with defense consistent with the Brady obligations and the consequences of not doing so.  

Opportunities were missed to strengthen written Brady orders in DC.

In 2022, the DC Superior Court adopted rule changes consistent with the relatively new federal law. DC Justice Lab recommended that the judge’s written order to prosecutors should include the requirement that prosecutors share the entire content of their case files with the defense and that exculpatory evidence and materials be shared “at the earliest opportunity” and “as soon as practical following the filing of charges.” DC Justice Lab also recommended that failure to comply with the written order could result in dismissal of the case and/or prosecutors being found in contempt of court. Instead, the written order produced by the DC Superior Court states that prosecutors should share “all information known to the government that is favorable to the defendant and material on the issue of guilt or punishment,” evidence should be shared in a “timely manner,” and the consequences for not doing so could include “granting a continuance, imposing sanctions such as an adverse jury instruction, exclusion of evidence, dismissing charges, and contempt of court.” 

Other jurisdictions have implemented stronger policies and practices governing Brady obligations.

A growing number of jurisdictions nationally have adopted policies and practices that better address the scope of evidence to be shared, the timeliness of when they are shared, and the consequences prosecutors face for not complying with Brady’s obligations and orders. Colorado amended disclosure rules require prosecutors to assess the timeliness of disclosure based on different case-specific factors, such as the stage of the proceedings and the nature of the information. This obligation is ongoing throughout the entire prosecution, and prosecutors must inform all relevant agencies of this continuing duty. New York State instructs prosecutors on their obligation to not only hand over materials that may be favorable to the defense, but also to seek that information from law enforcement. Prosecutors must disclose such evidence at least 30 days before trial to give defense attorneys enough time to review the material.

WHERE TO LEARN MORE

Our Solutions

Amend the written Brady order provided to USAO prosecutors at the start of trial to ensure:

  • Discovery processes are open
  • Material evidence is provided to the defense as soon as practical after charges are filed and as soon as evidence comes into a prosecutor's possession
  • Clarify that in the case of a prosecutorial failure of the Brady obligation, the consequence should be a dismissal of all charges
  • Meaningful and proportionate sanctions for delays in disclosure

special thanks

Mary Zenger ★ Kathryn Boothe  ★ Louey Merourh  ★  Steptoe

Last Updated on November 1, 2023.

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