Criminal Procedure Spring 2020: Brady Hypo & Analysis
Brady Hypos:
1. Assume that prior to trial the prosecutor learns that the complaining witness has died. If D decides to proceed to trial, the
witness will be unavailable to testify and the case will be dismissed. Is evidence of the witness’s unavailability
considered favorable evidence pursuant to Brady/Giglio?
Two kinds of favorable evidence – exculpatory evidence and impeachment evidence.
Standard of Materiality: whether there is a reasonable probability that the outcome would have been different had the
prosecution passed the evidence.
If: Material + Favorable = must pass to defense
If: Material + Not Favorable = do not need to pass evidence to the defense
If: Not Material + Favorable = do not need to pass evidence to the defense
If: Not Material + Not Favorable = do not need to pass evidence to the defense
Witness says Robert robbed me and then the witness dies of natural causes – this is not directly exculpatory because it is not
evidence that Robert did not commit the Robbery. The mere fact that a witness died before trial does not make defendant
any more innocent of the offense.
This is also not impeachment evidence - No prior inconsistent statement, no bias or motive to testify in a particular way, weight
of testimony cannot be questioned with this evidence because the person is dead, they won’t be testifying.
Prosecutor cannot make No prior inconsistent statement, no bias or motive to testify in a particular way, weight of testimony
cannot be questioned with this evidence because the person is dead, they won’t be testifying.
The spirit of Brady is not this broad – it only relates to issues touching upon whether defendant is innocent or guilty.
Therefore, because evidence is not favorable to the defense, it does not need to be disclosed by the prosecutor.
2. Defendant is charged with attempted murder. Other than the victim, the police have no other witnesses. The defendant gave
a statement to the police in which the defendant says he was acting in self-defense. Prior to trial and about 6 months after
the investigation, the detective who was assigned the case receives the below letter.
The letter is written by George, who is in prison on a material witness warrant for another case. Letter says: Send me home
please, I will do anything. After receiving this letter, the detective goes to meet with George. After the meeting, George
reports to have seen the defendant shoot the victim first and will testify that the D was not acting in self-defense. Detective
gives the letter to the DA. Assume that the DA intends to call George Robles as a witness at the defendant’s trial.
a) Should DA disclose letter to the defense attorney prior to trial?
This letter is favorable because it is impeachment evidence, as witness has bias or incentive to testify a certain way because he
wants to get out of jail. Because this evidence of the letter makes the witness less credible and can be used to impeach him,
it is favorable to the defense.
This letter is also material. This is one of the prosecution’s only witnesses. There is a reasonable probability that if the jury
heard the content of this letter it would change the outcome of the proceeding, as the jury could be persuaded that main
witness’s testimony that defendant was not acting in self-defense is not credible. Therefore, it could change the outcome of
the case as there is a reasonable probability that, especially because this is one of the prosecution’s only witnesses, the jury
will not believe prosecution’s theory of the case (that defendant was not acting in self-defense) and will adopt the defense’s
theory of the case that defendant was acting in self-defense.
b) Assume for the purpose of this question only that the letter is favorable and material. Also assume that the detective
never provides the letter to the DA. Does this fact change your opinion of the case? No. If evidence is in possession
of another state actor, prosecutor has an obligation to find information and pass it if it is favorable and material.
c) Assume defense never asks for letter, does prosecutor still need to pass it? Yes. Favorable and material evidence must be
passed by the prosecution, regardless of whether the defense makes a specific request for the particular piece of evidence.
e) Assume defense writes “pass all Brady material,” does prosecutor still need to pass it? Yes. Favorable and material
evidence must be passed by the prosecution, regardless of whether the defense makes a specific request for the particular
piece of evidence.