Respondent was convicted of second-degree murder for killing one
Sewell with a knife during a fight. Evidence at the trial
disclosed,
inter alia, that Sewell, just before the
killing, had been carrying two knives, including the one with which
respondent stabbed him, that he had been repeatedly stabbed, but
that respondent herself was uninjured. Subsequently, respondent's
counsel moved for a new trial, asserting that he had discovered
that Sewell had a prior criminal record (including guilty pleas to
charges of assault and carrying a deadly weapon, apparently a
knife) that would have tended to support the argument that
respondent acted in self-defense, and that the prosecutor had
failed to disclose this information to the defense. The District
Court denied the motion on the ground that the evidence of Sewell's
criminal record was not material, because it shed no light on his
character that was not already apparent from the uncontradicted
evidence, particularly the fact that he had been carrying two
knives, the court stressing the inconsistency between the
self-defense claim and the fact that Sewell had been stabbed
repeatedly while respondent was unscathed. The Court of Appeals
reversed, holding that the evidence of Sewell's criminal record was
material and that its nondisclosure required a new trial because
the jury might have returned a different verdict had the evidence
been received.
Held: The prosecutor's failure to tender Sewell's
criminal record to the defense did not deprive respondent of a fair
trial as guaranteed by the Due Process Clause of the Fifth
Amendment, where it appears that the record was not requested by
defense counsel and gave rise to no inference of perjury, that the
trial judge remained convinced of respondent's guilt beyond a
reasonable doubt after considering the criminal record in the
context of the entire record, and that the judge's first-hand
appraisal of the entire record was thorough and entirely
reasonable.
Mooney v. Holohan, 294 U.
S. 103;
Brady v. Maryland, 373 U. S.
83, distinguished. Pp.
427 U. S.
103-114.
(a) A prosecutor does not violate the constitutional duty of
Page 427 U. S. 98
disclosure unless his omission is sufficiently significant to
result in the denial of the defendant's right to a fair trial. Pp.
427 U. S.
107-109.
(b) Whether or not procedural rules authorizing discovery of
everything that might influence a jury might be desirable, the
Constitution does not demand such broad discovery; and the mere
possibility that an item of undisclosed information might have
aided the defense, or might have affected the outcome of the trial,
does not establish "materiality" in the constitutional sense. Pp.
427 U. S.
109-110.
(c) Nor is the prosecutor's constitutional duty of disclosure
measured by his moral culpability or willfulness; if the
suppression of evidence results in constitutional error, it is
because of the character of the evidence, not the character of the
prosecutor. P.
427 U. S.
110.
(d) The proper standard of materiality of undisclosed evidence,
and the standard applied by the trial judge in this case, is that,
if the omitted evidence creates a reasonable doubt of guilt that
did not otherwise exist, constitutional error has been committed.
Pp.
427 U. S.
112-114.
167 U.S.App.D.C. 28, 510 F.2d 1249, reversed.
STEVENS, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST,
JJ., joined. MARSHALL, J., filed a dissenting opinion, in which
BRENNAN, J., joined,
post, p.
427 U. S.
114.
MR. JUSTICE STEVENS delivered the opinion of the Court.
After a brief interlude in an inexpensive motel room, respondent
repeatedly stabbed James Sewell, causing his death. She was
convicted of second-degree murder. The question before us is
whether the prosecutor's failure
Page 427 U. S. 99
to provide defense counsel with certain background information
about Sewell, which would have tended to support the argument that
respondent acted in self-defense, deprived her of a fair trial
under the rule of
Brady v. Maryland, 373 U. S.
83.
The answer to the question depends on(1) a review of the facts,
(2) the significance of the failure of defense counsel to request
the material, and (3) the standard by which the prosecution's
failure to volunteer exculpatory material should be judged.
I
At about 4:30 p.m. on September 24, 1971, respondent, who had
been there before, and Sewell, registered in a motel as man and
wife. They were assigned a room without a bath. Sewell was wearing
a bowie knife in a sheath, and carried another knife in his pocket.
Less than two hours earlier, according to the testimony of his
estranged wife, he had had $360 in cash on his person.
About 15 minutes, later three motel employees heard respondent
screaming for help. A forced entry into their room disclosed Sewell
on top of respondent struggling for possession of the bowie knife.
She was holding the knife; his bleeding hand grasped the blade;
according to one witness he was trying to jam the blade into her
chest. The employees separated the two and summoned the
authorities. Respondent departed without comment before they
arrived. Sewell was dead on arrival at the hospital.
Circumstantial evidence indicated that the parties had completed
an act of intercourse, that Sewell had then gone to the bathroom
down the hall, and that the struggle occurred upon his return. The
contents of his pockets were in disarray on the dresser, and no
money was found; the jury may have inferred that respondent took
Sewell's money and that the fight started when Sewell reentered the
room and saw what she was doing.
Page 427 U. S. 100
On the following morning, respondent surrendered to the police.
She was given a physical examination which revealed no cuts or
bruises of any kind, except needle marks on her upper arm. An
autopsy of Sewell disclosed that he had several deep stab wounds in
his chest and abdomen, and a number of slashes on his arms and
hands, characterized by the pathologist as "defensive wounds."
[
Footnote 1]
Respondent offered no evidence. Her sole defense was the
argument made by her attorney that Sewell had initially attacked
her with the knife, and that her actions had all been directed
toward saving her own life. The support for this self-defense
theory was based on the fact that she had screamed for help. Sewell
was on top of her when help arrived, and his possession of two
knives indicated that he was a violence-prone person. [
Footnote 2] It took the jury about 25
minutes to elect a foreman and return a verdict.
Three months later, defense counsel filed a motion for a new
trial asserting that he had discovered (1) that Sewell had a prior
criminal record that would have further evidenced his violent
character; (2) that the prosecutor had failed to disclose this
information to the defense; and (3) that a recent opinion of the
United States Court of Appeals for the District of Columbia Circuit
made it clear that such evidence was admissible even if not known
to the defendant. [
Footnote 3]
Sewell's prior record included a plea of guilty to a charge of
assault and carrying
Page 427 U. S. 101
a deadly weapon in 1963, and another guilty plea to a charge of
carrying a deadly weapon in 1971. Apparently both weapons were
knives.
The Government opposed the motion, arguing that there was no
duty to tender Sewell's prior record to the defense in the absence
of an appropriate request; that the evidence was readily
discoverable in advance of trial, and hence was not the kind of
"newly discovered" evidence justifying a new trial; and that, in
all events, it was not material.
The District Court denied the motion. It rejected the
Government's argument that there was no duty to disclose material
evidence unless requested to do so, [
Footnote 4]
Page 427 U. S. 102
assumed that the evidence was admissible, but held that it was
not sufficiently material. The District Court expressed the opinion
that the prior conviction shed no light on Sewell's character that
was not already apparent from the uncontradicted evidence,
particularly the fact that he carried two knives; the court
stressed the inconsistency between the claim of self-defense and
the fact that Sewell had been stabbed repeatedly while respondent
was unscathed.
The Court of Appeals reversed. [
Footnote 5] The court found no lack of diligence on the
part of the defense and no misconduct by the prosecutor in this
case. It held, however, that the evidence was material, and that
its nondisclosure required a new trial because the jury might have
returned a different verdict if the evidence had been received.
[
Footnote 6]
The decision of the Court of Appeals represents a significant
departure from this Court's prior holding; because we believe that
that court has incorrectly interpreted the constitutional
requirement of due process, we reverse.
Page 427 U. S. 103
II
The rule of
Brady v. Maryland, 373 U. S.
83, arguably applies in three quite different
situations. Each involves the discovery, after trial, of
information which had been known to the prosecution but unknown to
the defense.
In the first situation, typified by
Mooney v. Holohan,
294 U. S. 103, the
undisclosed evidence demonstrates that the prosecution's case
includes perjured testimony and that the prosecution knew, or
should have known, of the perjury. [
Footnote 7] In a series of subsequent cases, the Court has
consistently held that a conviction obtained by the knowing use of
perjured testimony is fundamentally unfair, [
Footnote 8] and must be set aside if there is any
reasonable likelihood that the false testimony could have affected
the judgment of the jury. [
Footnote
9] It is this line of cases on which the
Page 427 U. S. 104
Court of Appeals placed primary reliance. In those cases, the
Court has applied a strict standard of materiality not just because
they involve prosecutor trial misconduct, but more importantly
because they involve a corruption of the truth-seeking function of
the trial process. Since this case involves no misconduct, and
since there is no reason to question the veracity of any of the
prosecution witnesses, the test of materiality followed in the
Mooney line of cases is not necessarily applicable to this
case.
The second situation, illustrated by the
Brady case
itself, is characterized by a pretrial request for specific
evidence. In that case, defense counsel had requested the
extrajudicial statements made by Brady's accomplice, one Boblit.
This Court held that the suppression of one of Boblit's statements
deprived Brady of due process, noting specifically that the
statement had been requested and that it was "material." [
Footnote 10] A fair analysis of the
holding in
Brady indicates that implicit in the
requirement of materiality is a concern that the suppressed
evidence might have affected the outcome of the trial.
Brady was found guilty of murder in the first degree. Since the
jury did not add the words "without capital punishment" to the
verdict, he was sentenced to death. At his trial, Brady did not
deny his involvement in the deliberate killing, but testified that
it was his accomplice,
Page 427 U. S. 105
Boblit, rather than he, who had actually strangled the decedent.
This version of the event was corroborated by one of several
confessions made by Boblit but not given to Brady's counsel despite
an admittedly adequate request.
After his conviction and sentence had been affirmed on appeal,
[
Footnote 11] Brady filed a
motion to set aside the judgment, and later a post-conviction
proceeding, in which he alleged that the State had violated his
constitutional rights by suppressing the Boblit confession. The
trial judge denied relief largely because he felt that Boblit's
confession would have been inadmissible at Brady's trial. The
Maryland Court of Appeals disagreed; [
Footnote 12] it ordered a new trial on the issue of
punishment. It held that the withholding of material evidence, even
"without guile," was a denial of due process, and that there were
valid theories on which the confession might have been admissible
in Brady's defense.
This Court granted certiorari to consider Brady's contention
that the violation of his constitutional right to a fair trial
vitiated the entire proceeding. [
Footnote 13] The holding that the suppression of
exculpatory evidence violated Brady's right to due process was
affirmed, as was the separate holding that he should receive a new
trial on the issue of punishment but not on the issue of guilt or
innocence. The Court interpreted the Maryland Court
Page 427 U. S. 106
of Appeals opinion as ruling that the confession was
inadmissible on that issue. For that reason, the confession could
not have affected the outcome on the issue of guilt, but could have
affected Brady's punishment. It was material on the latter issue,
but not the former. And since it was not material on the issue of
guilt, the entire trial was not lacking in due process.
The test of materiality in a case like
Brady in which
specific information has been requested by the defense is not
necessarily the same as in a case in which no such request has been
made. [
Footnote 14] Indeed,
this Court has not yet decided whether the prosecutor has any
obligation to provide defense counsel with exculpatory information
when no request has been made. Before addressing that question, a
brief comment on the function of the request is appropriate.
In
Brady, the request was specific. It gave the
prosecutor notice of exactly what the defense desired. Although
there is, of course, no duty to provide defense counsel with
unlimited discovery of everything known by the prosecutor, if the
subject matter of such a request is material, or indeed if a
substantial basis for claiming materiality exists, it is reasonable
to require the prosecutor to respond either by furnishing the
information or by submitting the problem to the trial judge. When
the prosecutor receives a specific and relevant request, the
failure to make any response is seldom, if ever, excusable.
In many cases, however, exculpatory information in the
possession of the prosecutor may be unknown to defense counsel. In
such a situation, he may make no request at all, or possibly ask
for "all
Brady material" or for "anything exculpatory."
Such a request really gives the prosecutor no better notice than if
no request is
Page 427 U. S. 107
made. If there is a duty to respond to a general request of that
kind, it must derive from the obviously exculpatory character of
certain evidence in the hands of the prosecutor. But if the
evidence is so clearly supportive of a claim of innocence that it
gives the prosecution notice of a duty to produce, that duty should
equally arise even if no request is made. Whether we focus on the
desirability of a precise definition of the prosecutor's duty or on
the potential harm to the defendant, we conclude that there is no
significant difference between cases in which there has been merely
a general request for exculpatory matter and cases, like the one we
must now decide, in which there has been no request at all. The
third situation in which the
Brady rule arguably applies,
typified by this case, therefore embraces the case in which only a
general request for "
Brady material" has been made.
We now consider whether the prosecutor has any constitutional
duty to volunteer exculpatory matter to the defense, and if so,
what standard of materiality gives rise to that duty.
III
We are not considering the scope of discovery authorized by the
Federal Rules of Criminal Procedure, or the wisdom of amending
those Rules to enlarge the defendant's discovery rights. We are
dealing with the defendant's right to a fair trial mandated by the
Due Process Clause of the Fifth Amendment to the Constitution. Our
construction of that Clause will apply equally to the comparable
clause in the Fourteenth Amendment applicable to trials in state
courts.
The problem arises in two principal contexts. First, in advance
of trial, and perhaps during the course of a trial as well, the
prosecutor must decide what, if anything, he should voluntarily
submit to defense counsel.
Page 427 U. S. 108
Second; after trial a judge may be required to decide whether a
nondisclosure deprived the defendant of his right to due process.
Logically the same standard must apply at both times. For unless
the omission deprived the defendant of a fair trial, there was no
constitutional violation requiring that the verdict be set aside;
and absent a constitutional violation, there was no breach of the
prosecutor's constitutional duty to disclose.
Nevertheless, there is a significant practical difference
between the pretrial decision of the prosecutor and the post-trial
decision of the judge. Because we are dealing with an inevitably
imprecise standard, and because the significance of an item of
evidence can seldom be predicted accurately until the entire record
is complete, the prudent prosecutor will resolve doubtful questions
in favor of disclosure. But to reiterate a critical point, the
prosecutor will not have violated his constitutional duty of
disclosure unless his omission is of sufficient significance to
result in the denial of the defendant's right to a fair trial.
The Court of Appeals appears to have assumed that the prosecutor
has a constitutional obligation to disclose any information that
might affect the jury's verdict. That statement of a constitutional
standard of materiality approaches the "sporting theory of justice"
which the Court expressly rejected in
Brady. [
Footnote 15] For a jury's
Page 427 U. S. 109
appraisal of a case "might" be affected by an improper or
trivial consideration as well as by evidence giving rise to a
legitimate doubt on the issue of guilt. If everything that might
influence a jury must be disclosed, the only way a prosecutor could
discharge his constitutional duty would be to allow complete
discovery of his files as a matter of routine practice.
Whether or not procedural rules authorizing such broad discovery
might be desirable, the Constitution surely does not demand that
much. While expressing the opinion that representatives of the
State may not "suppress substantial material evidence," former
Chief Justice Traynor of the California Supreme Court has pointed
out that "they are under no duty to report
sua sponte to
the defendant all that they learn about the case and about their
witnesses."
In re Imbler, 60 Cal. 2d
554, 569, 387 P.2d 6, 14 (1963). And this Court recently noted
that there is "no constitutional requirement that the prosecution
make a complete and detailed accounting to the defense of all
police investigatory work on a case."
Moore v. Illinois,
408 U. S. 786,
408 U. S. 795.
[
Footnote 16] The mere
possibility that an item of undisclosed information
Page 427 U. S. 110
might have helped the defense, or might have affected the
outcome of the trial, does not establish "materiality" in the
constitutional sense.
Nor do we believe the constitutional obligation is measured by
the moral culpability, or the willfulness, of the prosecutor.
[
Footnote 17] If evidence
highly probative of innocence is in his file, he should be presumed
to recognize its significance even if he has actually overlooked
it.
Cf. Giglo v. United States, 405 U.
S. 150,
405 U. S. 154.
Conversely, if evidence actually has no probative significance at
all, no purpose would be served by requiring a new trial simply
because an inept prosecutor incorrectly believed he was suppressing
a fact that would be vital to the defense. If the suppression of
evidence results in constitutional error, it is because of the
character of the evidence, not the character of the prosecutor.
As the District Court recognized in this case, there are
situations in which evidence is obviously of such substantial value
to the defense that elementary fairness requires it to be disclosed
even without a specific request. [
Footnote 18] For though the attorney for the sovereign
must prosecute the accused with earnestness and vigor, he
Page 427 U. S. 111
must always be faithful to his client's overriding interest that
"justice shall be done." He is the "servant of the law, the twofold
aim of which is that guilt shall not escape or innocence suffer."
Berger v. United States, 295 U. S. 78,
295 U. S. 88.
This description of the prosecutor's duty illuminates the standard
of materiality that governs his obligation to disclose exculpatory
evidence.
On the one hand, the fact that such evidence was available to
the prosecutor and not submitted to the defense places it in a
different category than if it had simply been discovered from a
neutral source after trial. For that reason, the defendant should
not have to satisfy the severe burden of demonstrating that newly
discovered evidence probably would have resulted in acquittal.
[
Footnote 19] If the
standard applied to the usual motion for a new trial based on newly
discovered evidence were the same when the evidence was in the
State's possession as when it was found in a neutral source, there
would be no special significance to the prosecutor's obligation to
serve the cause of justice.
On the other hand, since we have rejected the suggestion that
the prosecutor has a constitutional duty routinely to deliver his
entire file to defense counsel, we cannot consistently treat every
nondisclosure as though it were error. It necessarily follows that
the judge should not order a new trial every time he is unable
to
Page 427 U. S. 112
characterize a nondisclosure as harmless under the customary
harmless error standard. Under that standard, when error is present
in the record, the reviewing judge must set aside the verdict and
judgment unless his "conviction is sure that the error did not
influence the jury, or had but very slight effect."
Kotteakos
v. United States, 328 U. S. 750,
328 U. S. 764.
Unless every nondisclosure is regarded as automatic error, the
constitutional standard of materiality must impose a higher burden
on the defendant.
The proper standard of materiality must reflect our overriding
concern with the justice of the finding of guilt. [
Footnote 20] Such a finding is permissible
only if supported by evidence establishing guilt beyond a
reasonable doubt. It necessarily follows that, if the omitted
evidence creates a reasonable doubt that did not otherwise exist,
constitutional error has been committed. This means that the
omission must be evaluated in the context of the entire record.
[
Footnote 21] If there is no
reasonable doubt about
Page 427 U. S. 113
guilt whether or not the additional evidence is considered,
there is no justification for a new trial. On the other had, if the
verdict is already of questionable validity, additional evidence of
relatively minor importance might be sufficient to create a
reasonable doubt.
This statement of the standard of materiality describes the test
which courts appear to have applied in actual cases although the
standard has been phrased in different language. [
Footnote 22] It is also the standard which
the trial judge applied in this case. He evaluated the significance
of Sewell's prior criminal record in the context of the full trial
which he recalled in detail. Stressing in particular the
incongruity of a claim that Sewell was the aggressor with the
evidence of his multiple wounds and respondent's unscathed
condition, the trial judge indicated his unqualified opinion that
respondent was guilty. He
Page 427 U. S. 114
noted that Sewell's prior record did not contradict any evidence
offered by the prosecutor, and was largely cumulative of the
evidence that Sewell was wearing a bowie knife in a sheath and
carrying a second knife in his pocket when he registered at the
motel.
Since the arrest record was not requested, and did not even
arguably give rise to any inference of perjury, since, after
considering it in the context of the entire record, the trial judge
remained convinced of respondent's guilt beyond a reasonable doubt,
and since we are satisfied that his first-hand appraisal of the
record was thorough and entirely reasonable, we hold that the
prosecutor's failure to tender Sewell's record to the defense did
not deprive respondent of a fair trial as guaranteed by the Due
Process Clause of the Fifth Amendment. Accordingly, the judgment of
the Court of Appeals is
Reversed.
[
Footnote 1]
The alcohol level in Sewell's blood was slightly below the legal
definition of intoxication.
[
Footnote 2]
Moreover, the motel clerk testified that Sewell's wife had said
he "would use a knife"; however, Mrs Sewell denied making this
statement. There was no dispute about the fact that Sewell carried
the bowie knife when he registered.
[
Footnote 3]
See United States v. Burks, 152 U.S.App.D.C. 284, 286,
470 F.2d 432, 434 (1972).
[
Footnote 4]
"THE COURT: What are you saying? How can you request that which
you don't know exists. That is the very essence of
Brady."
"
* * * *"
"THE COURT: Are you arguing to the Court that the status of the
law is that, if you have a report indicating that fingerprints were
taken and that the fingerprints on the item . . . which the
defendant is alleged to have assaulted somebody turn out not to be
the defendant's, that absent a specific request for that
information, you do not have any obligation to defense
counsel?"
"MR. CLARKE: No, Your Honor. There is another aspect which comes
to this, and that is whether or not the Government knowingly puts
on perjured testimony. It has an obligation to correct that
perjured testimony."
"THE COURT: I am not talking about perjured testimony. You don't
do anything about it. You say nothing about it. You have got the
report there. You know that possibly it could be exculpatory.
Defense counsel doesn't know about it. He has been misinformed
about it. Suppose he doesn't know about it. And because he has made
no specific request for that information, you say that the status
of the law under
Brady is that you have no obligation as a
prosecutor to open your mouth?"
"MR. CLARKE: No. Your Honor. . . . "
"But as the materiality of the items becomes less to the point
where it is not material, there has to be a request, or else the
Government, just like the defense, is not on notice."
App. 147-149.
[
Footnote 5]
167 U.S.App.D.C. 28, 510 F.2d 1249 (1975). The opinion of the
Court of Appeals disposed of the direct appeal filed after
respondent was sentenced as well as the two additional appeals
taken from the two orders denying motions for new trial. After the
denial of the first motion, respondent's counsel requested leave to
withdraw in order to enable substitute counsel to file a new motion
for a new trial on the ground that trial counsel's representation
had been ineffective because he did not request Sewell's criminal
record for the reason that he incorrectly believed that it was
inadmissible. The District Court denied that motion. Although that
action was challenged on appeal, the Court of Appeals did not find
it necessary to pass on the validity of that ground. We think it
clear, however, that counsel's failure to obtain Sewell's prior
criminal record does not demonstrate ineffectiveness.
[
Footnote 6]
Although a majority of the active judges of the Circuit, as well
as one of the members of the panel, expressed doubt about the
validity of the panel's decision, the court refused to rehear the
case en banc.
[
Footnote 7]
In
Mooney, it was alleged that the petitioner's
conviction was based on perjured testimony
"which was knowingly used by the prosecuting authorities in
order to obtain that conviction, and also that these authorities
deliberately suppressed evidence which would have impeached and
refuted the testimony thus given against him."
294 U.S. at
294 U. S.
110.
The Court held that such allegations, if true, would establish
such fundamental unfairness as to justify a collateral attack on
petitioner's conviction.
"It is a requirement that cannot be deemed to be satisfied by
mere notice and hearing if a State has contrived a conviction
through the pretense of a trial which, in truth, is but used as a
means of depriving a defendant of liberty through a deliberate
deception of court and jury by the presentation of testimony known
to be perjured. Such a contrivance by a State to procure the
conviction and imprisonment of a defendant is as inconsistent with
the rudimentary demands of justice as is the obtaining of a like
result by intimidation."
Id. at 112.
[
Footnote 8]
Pyle v. Kansas, 317 U. S. 213;
Alcorta v. Texas, 355 U. S. 28;
Napue v. Illinois, 360 U. S. 264;
Miller v. Pate, 386 U. S. 1;
Giglio v. United States, 405 U. S. 150;
Donnelly v. DeChristoforo, 416 U.
S. 637.
[
Footnote 9]
See Giglio, supra at
405 U. S. 154,
quoting from
Napue, supra at
360 U. S.
271.
[
Footnote 10]
"We now hold that 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."
373 U.S. at
373 U. S. 87.
Although, in
Mooney, the Court had been primarily
concerned with the willful misbehavior of the prosecutor, in
Brady, the Court focused on the harm to the defendant
resulting from nondisclosure.
See discussions of this
development in Note, The Prosecutor's Constitutional Duty to Reveal
Evidence to the Defendant, 74 Yale L.J. 136 (1964); and Comment,
Brady v. Maryland and The Prosecutor's Duty to Disclose,
40 U.Chi.L.Rev. 112 (1972).
[
Footnote 11]
220 Md. 454, 154 A.2d 434 (1959)
[
Footnote 12]
226 Md 422, 174 A.2d. 167 (1961).
[
Footnote 13]
"The petitioner was denied due process of law by the State's
suppression of evidence before his trial began. The proceeding must
commence again from the stage at which the petitioner was
overreached. The denial of due process of law vitiated the verdict
and the sentence.
Rogers v. Richmond, 365 U. S.
534,
365 U. S. 545. The verdict
is not saved because other competent evidence would support it.
Culombe v. Connecticut, 367 U. S. 568,
367 U. S.
621."
Brief for Petitioner in
Brady v. Maryland, No. 490,
O.T. 1962, p. 6.
[
Footnote 14]
See Comment, 40 U.Chi.L.Rev.
supra, n 10, at 115-117.
[
Footnote 15]
"In the present case, a unanimous Court of Appeals has said that
nothing in the suppressed confession 'could have reduced the
appellant Brady's offense below murder in the first degree.' We
read that statement as a ruling on the admissibility of the
confession on the issue of innocence or guilt. A sporting theory of
justice might assume that, if the suppressed confession had been
used at the first trial, the judge's ruling that it was not
admissible on the issue of innocence or guilt might have been
flouted by the jury just as might have been done if the court had
first admitted a confession and then stricken it from the record.
But we cannot raise that trial strategy to the dignity of a
constitutional right and say that the deprival of this defendant of
that sporting chance through the use of a bifurcated trial (
cf.
Williams v. New York, 337 U. S. 241) denies him due
process or violates the Equal Protection Clause of the Fourteenth
Amendment."
373 U.S. at
373 U. S. 90-91
(footnote omitted).
[
Footnote 16]
In his opinion concurring in the judgment in
Giles v.
Maryland, 386 U. S. 66,
386 U. S. 98,
Mr. Justice Fortas stated:
"This is not to say that convictions ought to be reversed on the
ground that information merely repetitious, cumulative, or
embellishing of facts otherwise known to the defense or presented
to the court, or without importance to the defense for purposes of
the preparation of the case or for trial was not disclosed to
defense counsel. It is not to say that the State has an obligation
to communicate preliminary, challenged, or speculative
information."
[
Footnote 17]
In
Brady, this Court, as had the Maryland Court of
Appeals, expressly rejected the good faith or the bad faith of the
prosecutor as the controlling consideration:
"We now hold that 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 principle of
Mooney v. Holohan is
not punishment of society for misdeeds of a prosecutor but
avoidance of an unfair trial to the accused."
373 U.S. at
373 U. S. 87.
(Emphasis added.) If the nature of the prosecutor's conduct is not
controlling in a case like
Brady, surely it should not be
controlling when the prosecutor has not received a specific request
for information.
[
Footnote 18]
The hypothetical example given by the District Judge in this
case was fingerprint evidence demonstrating that the defendant
could not have fired the fatal shot.
[
Footnote 19]
This is the standard generally applied by lower courts in
evaluating motions for new trial under Fed.Rule Crim.Proc. 33 based
on newly discovered evidence.
See, e.g., Ashe v. United
States, 288 F.2d 725, 733 (CA6 1961);
United States v.
Thompson, 493 F.2d 305, 310 (CA9 1974),
cert. denied,
419 U.S. 834;
United States v. Houle, 490 F.2d 167, 171
(CA2 1973),
cert. denied, 417 U.S. 970;
United States
v. Meyers, 484 F.2d 113, 116 (CA3 1973);
Heald v. United
States, 175 F.2d 878, 883 (CA10 1949).
See also 2 C.
Wright, Federal Practice and Procedure ยง 557 (1969).
[
Footnote 20]
It has been argued that the standard should focus on the impact
of the undisclosed evidence on the defendant's ability to prepare
for trial, rather than the materiality of the evidence to the issue
of guilt or innocence.
See Note, The Prosecutor's
Constitutional Duty to Reveal Evidence to the Defense, 74 Yale L.J.
136 (1964). Such a standard would be unacceptable for determining
the materiality of what has been generally recognized as
"
Brady material" for two reasons. First, that standard
would necessarily encompass incriminating evidence as well as
exculpatory evidence, since knowledge of the prosecutor's entire
case would always be useful in planning the defense. Second, such
an approach would primarily involve an analysis of the adequacy of
the notice given to the defendant by the State, and it has always
been the Court's view that the notice component of due process
refers to the charge, rather than the evidentiary support for the
charge.
[
Footnote 21]
"If, for example, one of only two eyewitnesses to a crime had
told the prosecutor that the defendant was definitely not its
perpetrator, and if this statement was not disclosed to the
defense, no Court would hesitate to reverse a conviction resting on
the testimony of the other eyewitness. But if there were fifty
eyewitnesses, forty-nine of whom identified the defendant, and the
prosecutor neglected to reveal that the other, who was without his
badly needed glasses on the misty evening of the crime, had said
that the criminal looked something like the defendant, but he could
not be sure as he had only had a brief glimpse, the result might
well be different."
Comment, 40 U.Chi.L.Rev.,
supra, n 10 at 125.
[
Footnote 22]
See, e.g., Stout v. Cupp, 426 F.2d 881, 882-883 (CA9
1970);
Peterson v. United States, 411 F.2d 1074, 1079 (CA8
1969);
Lessard v. Dickson, 394 F.2d 88, 90-92 (CA9 1968),
cert. denied, 393 U.S. 1004;
United States v.
Tomaiolo, 378 F.2d 26, 28 (CA2 1967). One commentator has
identified three different standards this way:
"As discussed previously, in earlier cases, the following
standards for determining materiality for disclosure purposes were
enunciated: (1) evidence which may be merely helpful to the
defense; (2) evidence which raised a reasonable doubt as to
defendant's guilt; (3) evidence which is of such a character as to
create a substantial likelihood of reversal."
Comment, Materiality and Defense Requests: Aids in Defining the
Prosecutor's Duty of Disclosure, 59 Iowa L.Rev. 433, 445 (1973).
See also Note, The Duty of the Prosecutor to Disclose
Exculpatory Evidence, 60 Col.L.Rev. 858 (1960).
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins,
dissenting.
The Court today holds that the prosecutor's constitutional duty
to provide exculpatory evidence to the defense is not limited to
cases in which the defense makes a request for such evidence. But
once having recognized the existence of a duty to volunteer
exculpatory evidence, the Court so narrowly defines the category of
"material" evidence embraced by the duty as to deprive it of all
meaningful content.
In considering the appropriate standard of materiality governing
the prosecutor's obligation to volunteer exculpatory evidence, the
Court observes:
"[T]he fact that such evidence was available to the prosecutor
and not submitted to the defense places it in a different category
than if it had simply been
Page 427 U. S. 115
discovered from a neutral source after trial. For that reason,
the defendant should not have to satisfy the severe burden of
demonstrating that newly discovered evidence probably would have
resulted in acquittal [the standard generally applied to a motion
under Fed.Rule Crim.Proc. 33 based on newly discovered evidence
[
Footnote 2/1]]. If the standard
applied to the usual motion for a new trial based on newly
discovered evidence were the same when the evidence was in the
State's possession as when it was found in a neutral source, there
would be no special significance to the prosecutor's obligation to
serve the cause of justice."
Ante at
427 U. S. 111
(footnote omitted). I agree completely.
The Court, however, seemingly forgets these precautionary words
when it comes time to state the proper standard of materiality to
be applied in cases involving neither the knowing use of perjury
nor a specific defense request for an item of information. In such
cases, the prosecutor commits constitutional error, the Court
holds, "if the omitted evidence creates a reasonable doubt that did
not otherwise exist."
Ante at
427 U. S. 112.
As the Court's subsequent discussion makes clear, the defendant
challenging the prosecutor's failure to disclose evidence is
entitled to relief, in the Court's view, only if the withheld
evidence actually creates a reasonable doubt as to guilt in the
judge's mind. The burden thus imposed on the defendant is at least
as "severe" as, if not more
Page 427 U. S. 116
"severe" than, [
Footnote 2/2]
the burden he generally faces on a Rule 33 motion. Surely if a
judge is able to say that evidence actually creates a reasonable
doubt as to guilt in his mind (the Court's standard), he would also
conclude that the evidence "probably would have resulted in
acquittal" (the general Rule 33 standard). In short, in spite of
its own salutary precaution, the Court treats the case in which the
prosecutor withholds evidence no differently from the case in which
evidence is newly discovered from a neutral source. The
"prosecutor's obligation to serve the cause of justice" is reduced
to a status, to borrow the Court's words, of "no special
significance."
Ante at
427 U. S.
111.
Our overriding concern in cases such as the one before us is the
defendant's right to a fair trial. One of the most basic elements
of fairness in a criminal trial is that available evidence tending
to show innocence, as well as that tending to show guilt, be fully
aired before the jury; more particularly, it is that the State in
its zeal to convict a defendant not suppress evidence that might
exonerate him.
See Moore v. Illinois, 408 U.
S. 786,
408 U. S. 810
(1972) (opinion of MARSHALL, J.). This fundamental notion of
fairness does not pose any irreconcilable conflict for the
prosecutor, for as the Court reminds us, the prosecutor "must
always be faithful to his client's overriding interest that
justice shall be done.'" Ante at 427 U. S. 111.
No interest of the State is served, and no duty of the prosecutor
advanced, by the suppression of evidence favorable to the
defendant. On the contrary, the prosecutor fulfills his most basic
responsibility when he fully airs all the relevant evidence at his
command.
I recognize, of course, that the exculpatory value to the
defense of an item of information will often not be apparent to the
prosecutor in advance of trial. And
Page 427 U. S. 117
while the general obligation to disclose exculpatory information
no doubt continues during the trial, giving rise to a duty to
disclose information whose significance becomes apparent as the
case progresses, even a conscientious prosecutor will fail to
appreciate the significance of some items of information.
See
United States v. Keogh, 391 F.2d 138, 147 (CA2 1968). I agree
with the Court that these considerations, as well as the general
interest in finality of judgments, preclude the granting of a new
trial in every case in which the prosecutor has failed to disclose
evidence of some value to the defense. But surely these
considerations do not require the rigid rule the Court intends to
be applied to all but a relatively small number of such cases.
Under today's ruling, if the prosecution has not made knowing
use of perjury, and if the defense has not made a specific request
for an item of information, the defendant is entitled to a new
trial only if the withheld evidence actually creates a reasonable
doubt as to guilt in the judge's mind. With all respect, this rule
is completely at odds with the overriding interest in assuring that
evidence tending to show innocence is brought to the jury's
attention. The rule creates little, if any, incentive for the
prosecutor conscientiously to determine whether his files contain
evidence helpful to the defense. Indeed, the rule reinforces the
natural tendency of the prosecutor to overlook evidence favorable
to the defense, and creates an incentive for the prosecutor to
resolve close questions of disclosure in favor of concealment.
More fundamentally, the Court's rule usurps the function of the
jury as the trier of fact in a criminal case. The Court's rule
explicitly establishes the judge as the trier of fact with respect
to evidence withheld by the prosecution. The defendant's fate is
sealed so long as the evidence does not create a reasonable doubt
as to guilt in the judge's mind, regardless of whether the
Page 427 U. S. 118
evidence is such that reasonable men could disagree as to its
import -- regardless, in other words, of how "close" the case may
be. [
Footnote 2/3]
The Court asserts that this harsh standard of materiality is the
standard that "courts appear to have applied in actual cases
although the standard has been phrased in different language."
Ante at
427 U. S. 113
(footnote omitted). There is no basis for this assertion. None of
the cases cited by the Court in support of its statement suggests
that a judgment of conviction should be sustained so long as the
judge remains convinced beyond a reasonable doubt of the
defendant's guilt. [
Footnote 2/4]
The prevailing
Page 427 U. S. 119
view in the federal courts of the standard of materiality for
cases involving neither a specific request for information nor
other indications of deliberate misconduct -- a standard with which
the cases cited by the Court are fully consistent -- is quite
different. It is essentially the following: if there is a
significant chance that the withheld evidence, developed by skilled
counsel, would have induced a reasonable doubt in the minds of
enough jurors to avoid a conviction, then the judgment of
conviction must be set aside. [
Footnote
2/5] This standard, unlike the Court's, reflects a recognition
that the determination must be in terms of the impact of an item of
evidence on the jury, and that this determination cannot always be
made with certainty. [
Footnote
2/6]
Page 427 U. S. 120
The Court approves -- but only for a limited category of cases
-- a standard virtually identical to the one I have described as
reflecting the prevailing view. In cases in which
"the undisclosed evidence demonstrates that the prosecution's
case includes perjured testimony and that the prosecution knew, or
should have known, of the perjury,"
ante at
427 U. S. 103,
the judgment of conviction must be set aside "if there is any
reasonable likelihood that the false testimony could have affected
the judgment of the jury."
Ibid. This lesser burden on the
defendant is appropriate, the Court states, primarily because the
withholding of evidence contradicting testimony offered by
witnesses called by the prosecution "involve[s] a corruption of the
truth-seeking function of the trial process."
Ante at
427 U. S. 104.
But surely the truth-seeking process is corrupted by the
withholding of evidence favorable to the defense, regardless of
whether the evidence is directly contradictory to evidence offered
by the prosecution. An example offered by Mr. Justice Fortas serves
to illustrate the point.
"[L]et us assume that the State possesses information that blood
was found on the victim, and that this blood is of a type which
does not match that of the accused or of the victim. Let us assume
that no related testimony was offered by the State."
Giles v. Maryland, 386 U. S. 66,
386 U. S. 100
(1967) (concurring in judgment). The suppression of the information
unquestionably corrupts the truthseeking process, and the burden on
the defendant in establishing his entitlement to a new trial ought
be no different from the burden he would face if related testimony
had been elicited by the prosecution.
See id. at
386 U. S.
99-101.
The Court derives its "reasonable likelihood" standard for cases
involving perjury from cases such as
Napue
v.
Page 427 U. S. 121
Illinois, 360 U. S. 264
(1959), and
Giglio v. United States, 405 U.
S. 150 (1972). But surely the results in those cases,
and the standards applied, would have been no different if perjury
had not been involved. In
Napue and
Giglio,
coconspirators testifying against the defendants testified falsely,
in response to questioning by defense counsel, that they had not
received promises from the prosecution. The prosecution failed to
disclose that promises had, in fact, been made. The corruption of
the truthseeking process stemmed from the suppression of evidence
affecting the overall credibility of the witnesses,
see Napue,
supra at
360 U. S. 269;
Giglio, supra at
405 U. S. 154,
and that corruption would have been present whether or not defense
counsel had elicited statements from the witnesses denying that
promises had been made.
It may be that, contrary to the Court's insistence, its
treatment of perjury cases reflects simply a desire to deter
deliberate prosecutorial misconduct. But if that were the case, we
might reasonably expect a rule imposing a lower threshold of
materiality than the Court imposes -- perhaps a harmless error
standard. And we would certainly expect the rule to apply to a
broader category of misconduct than the failure to disclose
evidence that contradicts testimony offered by witnesses called by
the prosecution. For the prosecutor is guilty of misconduct when he
deliberately suppresses evidence that is clearly relevant and
favorable to the defense, regardless, once again, of whether the
evidence relates directly to testimony given in the course of the
Government's case.
This case, however, does not involve deliberate prosecutorial
misconduct. Leaving open the question whether a different rule
might appropriately be applied in cases involving deliberate
misconduct, [
Footnote 2/7] I would
hold that the
Page 427 U. S. 122
defendant in this case had the burden of demonstrating that
there is a significant chance that the withheld evidence, developed
by skilled counsel, would have induced a reasonable doubt in the
minds of enough jurors to avoid a conviction. This is essentially
the standard applied by the Court of Appeals, and I would affirm
its judgment.
[
Footnote 2/1]
The burden generally imposed upon such a motion has also been
described as a burden of demonstrating that the newly discovered
evidence would probably produce a different verdict in the event of
a retrial.
See, e.g., United States v. Kahn, 472 F.2d 272,
287 (CA2 1973);
United States v. Rodriguez, 437 F.2d 940,
912 (CA5 1971);
United States v. Curran, 465 F.2d 260, 264
(CA7 1972).
[
Footnote 2/2]
See United States v. Keogh, 391 F.2d 138, 148 (CA2
1968), in which Judge Friendly implies that the standard the Court
adopts is more severe than the standard the Court rejects.
[
Footnote 2/3]
To emphasize the harshness of the Court's rule, the defendant's
fate is determined finally by the judge only if the judge does not
entertain a reasonable doubt as to guilt. If evidence withheld by
the prosecution does create a reasonable doubt as to guilt in the
judge's mind, that does not end the case -- rather, the defendant
(one might more accurately say the prosecution) is "entitled" to
have the case decided by a jury.
[
Footnote 2/4]
In
Stout v. Cupp, 426 F.2d 881 (CA9 1970), a habeas
proceeding, the court simply quoted the District Court's finding
that, if the suppressed evidence had been introduced, "the jury
would not have reached a different result."
Id. at 883.
There is no indication that the quoted language was intended as
anything more than a finding of fact, which would, quite obviously,
dispose of the defendant's claim under any standard that might be
suggested. In
Peterson v. United States, 411 F.2d. 1074
(CA8 1969), the court appeared to require a showing that the
withheld evidence "was
material' and would have aided the
defense." Id. at 1079. The court in Lessard v.
Dickson, 394 F.2d 88 (CA9 1968), found it determinative that
the withheld evidence "could hardly be regarded as being able to
have much force against the inexorable array of incriminating
circumstances with which [the defendant] was surrounded."
Id. at 91. The jury, the court noted, would not have been
"likely to have had any [difficulty]" with the argument defense
counsel would have made with the withheld evidence. Id. at
92. Finally, United States v. Tomaiolo, 378 F.2d 26 (CA2
1967), required the defendant to show that the evidence was
"material and of some substantial use to the defendant."
Id. at 28.
[
Footnote 2/5]
See, e.g., United States v. Morell, 524 F.2d 550, 553
(CA2 1975);
Oden v. Wolff, 522 F.2d 816, 822 (CA8 1975);
Woodcock v. Amaral, 511 F.2d 985, 991 (CA1 1974);
United States v. Miller, 499 F.2d 736, 744 (CA10 1974);
Shuler v. Wainwright, 491 F.2d 1213, 1223 (CA5 1974);
United States v. Kahn, 472 F.2d at 287;
Clarke v.
Burke, 440 F.2d 853, 855 (CA7 1971);
Hamric v.
Bailey, 386 F.2d 390, 393 (CA4 1967).
[
Footnote 2/6]
That there is a significant difference between the Court's
standards and what has been described as the prevailing view is
made clear by Judge Friendly, writing for the court in
United
States v. Miller, 411 F.2d 825 (CA2 1969). After stating the
court's conclusion that a new trial was required because of the
Government's failure to disclose to the defense the pretrial
hypnosis of its principal witness, Judge Friendly observed:
"We have reached this conclusion with some reluctance,
particularly in light of the considered belief of the able and
conscientious district judge, who has lived with this case for
years, that review of the record in light of all the defense new
trial motions left him 'convinced of the correctness of the jury's
verdict.' We, who also have had no small exposure to the facts, are
by no means convinced otherwise. The test, however, is not how the
newly discovered evidence concerning the hypnosis would affect the
trial judge or ourselves but whether, with the Government's case
against [the defendant] already subject to serious attack, there
was a significant chance that this added item, developed by skilled
counsel as it would have been, could have induced a reasonable
doubt in the minds of enough jurors to avoid a conviction. We
cannot conscientiously say there was not."
Id. at 832 (footnote omitted).
[
Footnote 2/7]
It is the presence of deliberate prosecutorial misconduct and a
desire to deter such misconduct, presumably, that leads the Court
to recognize a rule more readily permitting new trials in cases
involving a specific defense request for information. The
significance of the defense request, the Court states, is simply
that it gives the prosecutor notice of what is important to the
defense; once such notice is received, the failure to disclose is
"seldom, if ever, excusable."
Ante at
427 U. S. 106.
It would seem to follow that, if an item of information is of such
obvious importance to the defense that it could not have escaped
the prosecutor's attention, its suppression should be treated in
the same manner as if there had been a specific request. This is
precisely the approach taken by some courts.
See, e.g., United
States v. Morell, 524 F.2d at 553;
United States v.
Miller, 499 F.2d at 744;
United States v. Kahn, 472
F.2d at 287;
United States v. Keogh, 391 F.2d at
146-147.