Brady and Giglio

Brady and a companion, Boblit, were convicted of first-degree murder and sentenced to death. At trial, Brady admitted taking part in the crime but said Boblit did the actual killing. Before trial, his lawyer asked to see Boblit’s statements. Several were shown, but one, in which Boblit admitted the actual homicide, was withheld. Brady did not learn of it until after his conviction had been affirmed.

The Maryland Court of Appeals ordered a new trial on punishment only. The Supreme Court affirmed. Its central holding is this: “the 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 good faith or bad faith of the prosecution.”

The government’s key witness against Giglio was an alleged coconspirator, Robert Taliento, the only witness linking Giglio to the crime. One Assistant United States Attorney had promised Taliento he would not be prosecuted if he testified. A different assistant tried the case and said he had been told no promise was made. At trial, Taliento testified: “Nobody told me I wouldn’t be prosecuted.”

The Supreme Court reversed and remanded. It held that when the “reliability of a given witness may well be determinative of guilt or innocence,” nondisclosure of evidence affecting credibility falls within the Brady rule. It also said: “The prosecutor’s office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government.” And whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor.

• Impeachment evidence counts. “Impeachment evidence, however, as well as exculpatory evidence, falls within the Brady rule.” United States v. Bagley, 473 U.S. 667 (1985).
• Materiality. In Bagley, five Justices agreed on the test: Justice Blackmun’s opinion, joined on this point by Justice O’Connor, and Justice White’s concurrence, joined by Chief Justice Burger and Justice Rehnquist. The evidence “is 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.” Kyles later applied that standard.
• Police knowledge. The Court said “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. 419 (1995).
• Three components. The evidence must be favorable to the accused, because it is exculpatory or impeaching; it must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued. Strickler v. Greene, 527 U.S. 263 (1999).

The constitutional duty runs to the prosecution. In practice, prosecutors learn of favorable evidence from the people who gather it. Under Kyles, evidence known to the police can be treated as known to the prosecution even if the prosecutor never saw it.

For federal cases, the Department of Justice’s Justice Manual, section 9-5.000 directs prosecutors to seek all exculpatory and impeachment information from all members of the prosecution team, including federal, state, and local law enforcement officers. Its Giglio policy (9-5.100) says each investigative agency employee is obligated to inform the prosecutors they work with of potential impeachment information as early as possible before giving a sworn statement or testimony.

The Manual’s examples of potential impeachment information include findings of misconduct that reflect on truthfulness or bias, past or pending criminal charges, judicial findings that the employee testified untruthfully, and evidence of bias.

For forensic examiners, favorable evidence can include results, observations, or limitations that cut against the government’s theory, as well as information that affects the examiner’s own credibility.

Information that is never written down is easy to lose before it reaches the prosecutor. Brady and Giglio both turned on information that existed but did not reach the defense: a withheld statement in one case, an undisclosed promise in the other.

Good records make disclosure possible. They show what was found, what was said, what was promised, and who knew. Gaps in the record are hard to explain later, and Giglio shows that one person’s knowledge can be attributed to the whole office.

• Favorable information includes anything that points away from the suspect or weakens a witness, not only evidence of innocence.
• Giglio involved a promise to a witness. Promises, benefits, and understandings with a witness can bear on credibility and are commonly treated as impeachment information.
• Notes, messages, and drafts can contain favorable information. The Justice Manual addresses review of agent notes and preservation of investigative communications.
• Results that do not support the case, and the limits of a forensic method, are part of the record.
• Officers and examiners who may testify can expect to be asked about their own impeachment history.
• Disclosure decisions belong to the prosecutor. The investigator’s part is to record and pass on the information.

• Brady v. Maryland, 373 U.S. 83 (1963)
• Giglio v. United States, 405 U.S. 150 (1972)
• United States v. Bagley, 473 U.S. 667 (1985)
• Kyles v. Whitley, 514 U.S. 419 (1995)
• Strickler v. Greene, 527 U.S. 263 (1999)
• U.S. Department of Justice, Justice Manual 9-5.000