Respondent was indicted on charges of violating federal
narcotics and firearms statutes. Before trial, he filed a discovery
motion requesting,
inter alia, "any deals, promises or
inducements made to [Government] witnesses in exchange for their
testimony." The Government's response did not disclose that any
"deals, promises or inducements" had been made to its two principal
witnesses, who had assisted the Bureau of Alcohol, Tobacco and
Firearms (ATF) in conducting an undercover investigation of
respondent. But the Government did produce signed affidavits by
these witnesses recounting their undercover dealing with respondent
and concluding with the statement that the affidavits were made
without any threats or rewards or promises of reward. Respondent
waived his right to a jury trial and was tried before the District
Court. The two principal Government witnesses testified about both
the firearms and narcotics charges, and the court found respondent
guilty on the narcotics charges but not guilty on the firearms
charges. Subsequently, in response to requests made pursuant to the
Freedom of Information Act and the Privacy Act, respondent received
copies of ATF contracts signed by the principal Government
witnesses during the undercover investigation and stating that the
Government would pay money to the witnesses commensurate with the
information furnished. Respondent then moved to vacate his
sentence, alleging that the Government's failure in response to the
discovery motion to disclose these contracts, which he could have
used to impeach the witnesses, violated his right to due process
under
Brady v. Maryland, 373 U. S. 83, which
held that the prosecution's suppression of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or punishment. The District Court denied
the motion, finding beyond a reasonable doubt that, had the
existence of the ATF contracts been disclosed to it during trial,
the disclosure would not have affected the outcome, because the
principal Government witnesses' testimony was primarily devoted to
the firearms charges on which respondent was acquitted, and was
exculpatory on the narcotics charges. The Court of Appeals
reversed, holding that the Government's failure to disclose the
requested impeachment evidence that respondent could have used to
conduct an effective cross-examination of the Government's
principal
Page 473 U. S. 668
witnesses required automatic reversal. The Court of Appeals also
stated that it "disagree[d]" with the District Court's conclusion
that the nondisclosure was harmless beyond a reasonable doubt,
noting that the witnesses' testimony was in fact inculpatory on the
narcotics charges.
Held: The judgment is reversed, and the case is
remanded.
719 F.2d 1462, reversed and remanded.
JUSTICE BLACKMUN delivered the opinion of the Court with respect
to Parts I and II, concluding that the Court of Appeals erred in
holding that the prosecutor's failure to disclose evidence that
could have been used effectively to impeach important Government
witnesses requires automatic reversal. Such nondisclosure
constitutes constitutional error and requires reversal of the
conviction only if the evidence is material in the sense that its
suppression might have affected the outcome of the trial. Pp.
473 U. S.
674-678.
JUSTICE BLACKMUN, joined by JUSTICE O'CONNOR, delivered an
opinion with respect to Part III, concluding that the nondisclosed
evidence at issue 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. A
"reasonable probability" is a probability sufficient to undermine
confidence in the outcome. This standard of materiality is
sufficiently flexible to cover cases of prosecutorial failure to
disclose evidence favorable to the defense regardless of whether
the defense makes no request, a general request, or a specific
request. Although the prosecutor's failure to respond fully to a
specific request may impair the adversary process by having the
effect of representing to the defense that certain evidence does
not exist, this possibility of impairment does not necessitate a
different standard of materiality. Under the standard stated above,
the reviewing court may consider directly any adverse effect that
the prosecutor's failure to respond might have had on the
preparation or presentation of the defendant's case. Pp.
473 U.S. 678-684.
JUSTICE WHITE, joined by THE CHIEF JUSTICE and JUSTICE
REHNQUIST, being of the view that there is no reason to elaborate
on the relevance of the specificity of the defense's request for
disclosure, either generally or with respect to this case,
concluded that reversal was mandated simply because the Court of
Appeals failed to apply the "reasonable probability" standard of
materiality to the nondisclosed evidence in question. P.
473 U. S.
685.
BLACKMUN, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I and II, in which
BURGER, C.J., and WHITE, REHNQUIST, and O'CONNOR, JJ., joined, and
an opinion with respect to Part III, in which O'CONNOR, J., joined.
WHITE, J., filed
Page 473 U. S. 669
an opinion concurring in part and concurring in the judgment, in
which BURGER, C.J., and REHNQUIST, J., joined,
post, p.
473 U. S. 685.
MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,
joined,
post, p.
473 U. S. 685.
STEVENS, J., filed a dissenting opinion,
post, p. 709.
POWELL, J., took no part in the decision of the case.
JUSTICE BLACKMUN announced the judgment of the Court and
delivered an opinion of the Court except as to Part III.
In
Brady v. Maryland, 373 U. S. 83,
473 U. S. 87
(1963), this Court held 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 punishment."
The issue in the present case concerns the standard of
materiality to be applied in determining whether a conviction
should be reversed because the prosecutor failed to disclose
requested evidence that could have been used to impeach Government
witnesses.
I
In October, 1977, respondent Hughes Anderson Bagley was indicted
in the Western District of Washington on 15 charges of violating
federal narcotics and firearms statutes. On November 18, 24 days
before trial, respondent filed a discovery motion. The sixth
paragraph of that motion requested:
"The names and addresses of witnesses that the government
intends to call at trial. Also the prior criminal records of
witnesses, and any deals, promises or inducements
Page 473 U. S. 670
made to witnesses in exchange for their testimony."
App. 18. [
Footnote 1] The
Government's two principal witnesses at the trial were James F.
O'Connor and Donald E. Mitchell. O'Connor and Mitchell were state
law enforcement officers employed by the Milwaukee Railroad as
private security guards. Between April and June, 1977, they
assisted the federal Bureau of Alcohol, Tobacco and Firearms (ATF)
in conducting an undercover investigation of respondent.
The Government's response to the discovery motion did not
disclose that any "deals, promises or inducements" had been made to
O'Connor or Mitchell. In apparent reply to a request in the
motion's ninth paragraph for "[c]opies of all Jencks Act material,"
[
Footnote 2] the Government
produced a series of affidavits that O'Connor and Mitchell had
signed between April 12 and May 4, 1977, while the undercover
investigation was in progress. These affidavits recounted in detail
the undercover dealings that O'Connor and Mitchell were having at
the time with respondent. Each affidavit concluded with the
statement, "I made this statement freely and voluntarily without
any threats or rewards, or promises of reward having been made to
me in return for it." [
Footnote
3]
Respondent waived his right to a jury trial and was tried before
the court in December, 1977. At the trial, O'Connor
Page 473 U. S. 671
and Mitchell testified about both the firearms and the narcotics
charges. On December 23, the court found respondent guilty on the
narcotics charges, but not guilty on the firearms charges.
In mid-1980, respondent filed requests for information pursuant
to the Freedom of Information Act and to the Privacy Act of 1974, 5
U.S.C. §§ 552 and 552a. He received in response copies of ATF form
contracts that O'Connor and Mitchell had signed on May 3, 1977.
Each form was entitled "Contract for Purchase of Information and
Payment of Lump Sum Therefor." The printed portion of the form
stated that the vendor "will provide" information to ATF and
that,
"upon receipt of such information by the Regional Director,
Bureau of Alcohol, Tobacco and Firearms, or his representative, and
upon the accomplishment of the objective sought to be obtained by
the use of such information to the satisfaction of said Regional
Director, the United States will pay to said vendor a sum
commensurate with services and information rendered."
App. 22 and 23. Each form contained the following typewritten
description of services:
"That he will provide information regarding T-I and other
violations committed by Hughes A. Bagley, Jr.; that he will
purchase evidence for ATF; that he will cut [
sic] in an
undercover capacity for ATF; that he will assist ATF in gathering
of evidence and testify against the violator in federal court."
Ibid. The figure "$300.00" was handwritten in each form
on a line entitled "Sum to Be Paid to Vendor."
Because these contracts had not been disclosed to respondent in
response to his pretrial discovery motion, [
Footnote 4] respondent moved under 28 U.S.C. § 2255 to
vacate his sentence. He
Page 473 U. S. 672
alleged that the Government's failure to disclose the contracts,
which he could have used to impeach O'Connor and Mitchell, violated
his right to due process under
Brady v. Maryland,
supra.
The motion came before the same District Judge who had presided
at respondent's bench trial. An evidentiary hearing was held before
a Magistrate. The Magistrate found that the printed form contracts
were blank when O'Connor and Mitchell signed them, and were not
signed by an ATF representative until after the trial. He also
found that, on January 4, 1978, following the trial and decision in
respondent's case, ATF made payments of $300 to both O'Connor and
Mitchell pursuant to the contracts. [
Footnote 5] Although the ATF case agent who dealt with
O'Connor and Mitchell testified that these payments were
compensation for expenses, the Magistrate found that this
characterization was not borne out by the record. There was no
documentation for expenses in these amounts; Mitchell testified
that his payment was not for expenses, and the ATF forms
authorizing the payments treated them as rewards.
The District Court adopted each of the Magistrate's findings
except for the last one to the effect that "[n]either O'Connor nor
Mitchell expected to receive the payment of $300 or any payment
from the United States for their testimony." App. to Pet. for Cert.
7a, 12a, 14a. Instead, the court found that it was "probable" that
O'Connor and Mitchell expected to receive compensation, in addition
to their expenses, for their assistance, "though perhaps not for
their testimony."
Id. at 7a. The District Court also
expressly rejected,
ibid., the Magistrate's conclusion,
id. at 14a, that:
Page 473 U. S. 673
"Because neither witness was promised or expected payment for
his testimony, the United States did not withhold, during pretrial
discovery, information as to any 'deals, promises or inducements'
to these witnesses. Nor did the United States suppress evidence
favorable to the defendant, in violation of
Brady v.
Maryland, 373 U. S. 83 (1963)."
The District Court found beyond a reasonable doubt, however,
that, had the existence of the agreements been disclosed to it
during trial, the disclosure would have had no effect upon its
finding that the Government had proved beyond a reasonable doubt
that respondent was guilty of the offenses for which he had been
convicted.
Id. at 8a. The District Court reasoned: almost
all of the testimony of both witnesses was devoted to the firearms
charges in the indictment. Respondent, however, was acquitted on
those charges. The testimony of O'Connor and Mitchell concerning
the narcotics charges was relatively very brief. On
cross-examination, respondent's counsel did not seek to discredit
their testimony as to the facts of distribution, but rather sought
to show that the controlled substances in question came from
supplies that had been prescribed for respondent's personal use.
The answers of O'Connor and Mitchell to this line of
cross-examination tended to be favorable to respondent. Thus, the
claimed impeachment evidence would not have been helpful to
respondent, and would not have affected the outcome of the trial.
Accordingly, the District Court denied respondent's motion to
vacate his sentence.
The United States Court of Appeals for the Ninth Circuit
reversed.
Bagley v. Lumpkin, 719 F.2d 1462 (1983). The
Court of Appeals began by noting that, according to precedent in
the Circuit, prosecutorial failure to respond to a specific
Brady request is properly analyzed as error, and a
resulting conviction must be reversed unless the error is harmless
beyond a reasonable doubt. The court noted that the District Judge
who had presided over the bench trial
Page 473 U. S. 674
concluded beyond a reasonable doubt that disclosure of the ATF
agreement would not have affected the outcome. The Court of
Appeals, however, stated that it "disagree[d]" with this
conclusion.
Id. at 1464. In particular, it disagreed with
the Government's -- and the District Court's -- premise that the
testimony of O'Connor and Mitchell was exculpatory on the narcotics
charges, and that respondent therefore would not have sought to
impeach "his own witness."
Id. at 1464, n. 1.
The Court of Appeals apparently based its reversal, however, on
the theory that the Government's failure to disclose the requested
Brady information that respondent could have used to
conduct an effective cross-examination impaired respondent's right
to confront adverse witnesses. The court noted:
"In
Davis v. Alaska, . . . the Supreme Court held that
the denial of the "right of
effective cross-examination"
was "
constitutional error of the first magnitude,'" requiring
automatic reversal."
719 F.2d at 1464 (quoting
Davis v. Alaska, 415 U.
S. 308,
415 U. S. 318
(1974)) (emphasis added by Court of Appeals). In the last sentence
of its opinion, the Court of Appeals concluded:
"we hold that the government's failure to provide requested
Brady information to Bagley so that he could effectively
cross-examine two important government witnesses requires an
automatic reversal."
719 F.2d at 1464.
We granted certiorari, 469 U.S. 1016 (1984), and we now
reverse.
II
The holding in
Brady v. Maryland requires disclosure
only of evidence that is both favorable to the accused and
"material either to guilt or to punishment." 373 U.S. at
373 U. S. 87.
See also Moore v. Illinois, 408 U.
S. 786,
408 U. S.
794-795 (1972). The Court explained in
United States
v. Agurs, 427 U. S. 97,
427 U. S. 104
(1976):
"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
Page 473 U. S. 675
the trial."
The evidence suppressed in
Brady would have been
admissible only on the issue of punishment, and not on the issue of
guilt, and therefore could have affected only Brady's sentence, and
not his conviction. Accordingly, the Court affirmed the lower
court's restriction of Brady's new trial to the issue of
punishment.
The
Brady rule is based on the requirement of due
process. Its purpose is not to displace the adversary system as the
primary means by which truth is uncovered, but to ensure that a
miscarriage of justice does not occur. [
Footnote 6] Thus, the prosecutor is not required to
deliver his entire file to defense counsel, [
Footnote 7] but only to disclose evidence
favorable to the accused that, if suppressed, would deprive the
defendant of a fair trial:
"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. . .
."
". . . But to reiterate a critical point, the prosecutor will
not have violated his constitutional duty of disclosure
Page 473 U. S. 676
unless his omission is of sufficient significance to result in
the denial of the defendant's right to a fair trial."
427 U.S. at
427 U. S.
108.
In
Brady and
Agurs, the prosecutor failed to
disclose exculpatory evidence. In the present case, the prosecutor
failed to disclose evidence that the defense might have used to
impeach the Government's witnesses by showing bias or interest.
Impeachment evidence, however, as well as exculpatory evidence,
falls within the
Brady rule.
See Giglio v. United
States, 405 U. S. 150,
405 U. S. 154
(1972). Such evidence is "evidence favorable to an accused,"
Brady, 373 U.S. at
373 U. S. 87, so
that, if disclosed and used effectively, it may make the difference
between conviction and acquittal.
Cf. Napue v. Illinois,
360 U. S. 264,
360 U. S. 269
(1959) ("The jury's estimate of the truthfulness and reliability of
a given witness may well be determinative of guilt or innocence,
and it is upon such subtle factors as the possible interest of the
witness in testifying falsely that a defendant's life or liberty
may depend").
The Court of Appeals treated impeachment evidence as
constitutionally different from exculpatory evidence. According to
that court, failure to disclose impeachment evidence is "even more
egregious" than failure to disclose exculpatory evidence "because
it threatens the defendant's right to confront adverse witnesses."
719 F.2d at 1464. Relying on
Davis v. Alaska, 415 U.
S. 308 (1974), the Court of Appeals held that the
Government's failure to disclose requested impeachment evidence
that the defense could use to conduct an effective
cross-examination of important prosecution witnesses constitutes
"
constitutional error of the first magnitude'" requiring
automatic reversal. 719 F.2d at 1464 (quoting Davis v. Alaska,
supra, at 415 U. S.
318).
This Court has rejected any such distinction between impeachment
evidence and exculpatory evidence. In
Giglio v. United States,
supra, the Government failed to disclose impeachment evidence
similar to the evidence at issue in the present case, that is, a
promise made to the key Government
Page 473 U. S. 677
witness that he would not be prosecuted if he testified for the
Government. This Court said:
"When the 'reliability of a given witness may well be
determinative of guilt or innocence,' nondisclosure of evidence
affecting credibility falls within th[e] general rule [of
Brady]. We do not, however, automatically require a new
trial whenever"
"a combing of the prosecutors' files after the trial has
disclosed evidence possibly useful to the defense but not likely to
have changed the verdict. . . ."
"A finding of materiality of the evidence is required under
Brady. . . . A new trial is required if 'the false
testimony could . . . in any reasonable likelihood have affected
the judgment of the jury. . . .'"
405 U.S. at
405 U. S. 154
(citations omitted). Thus, the Court of Appeals' holding is
inconsistent with our precedents.
Moreover, the court's reliance on
Davis v. Alaska for
its "automatic reversal" rule is misplaced. In
Davis, the
defense sought to cross-examine a crucial prosecution witness
concerning his probationary status as a juvenile delinquent. The
defense intended by this cross-examination to show that the witness
might have made a faulty identification of the defendant in order
to shift suspicion away from himself or because he feared that his
probationary status would be jeopardized if he did not
satisfactorily assist the police and prosecutor in obtaining a
conviction. Pursuant to a state rule of procedure and a state
statute making juvenile adjudications inadmissible, the trial judge
prohibited the defense from conducting the cross-examination. This
Court reversed the defendant's conviction, ruling that the direct
restriction on the scope of cross-examination denied the
defendant
"the right of effective cross-examination which "
would be
constitutional error of the first magnitude, and no amount of
showing of want of prejudice would cure it.' Brookhart v.
Janis, 384 U. S. 1,
384 U. S.
3.""
415 U.S. at
415 U. S. 318
(quoting
Smith
Page 473 U. S. 678
v. Illinois,
390 U. S. 129,
390 U. S. 131
(1968)).
See also United States v. Cronic, 466 U.
S. 648,
466 U. S. 659
(1984).
The present case, in contrast, does not involve any direct
restriction on the scope of cross-examination. The defense was free
to cross-examine the witnesses on any relevant subject, including
possible bias or interest resulting from inducements made by the
Government. The constitutional error, if any, in this case was the
Government's failure to assist the defense by disclosing
information that might have been helpful in conducting the
cross-examination. As discussed above, such suppression of evidence
amounts to a constitutional violation only if it deprives the
defendant of a fair trial. Consistent with "our overriding concern
with the justice of the finding of guilt,"
United States v.
Agurs, 427 U.S. at
427 U. S. 112,
a constitutional error occurs, and the conviction must be reversed,
only if the evidence is material in the sense that its suppression
undermines confidence in the outcome of the trial.
III
A
It remains to determine the standard of materiality applicable
to the nondisclosed evidence at issue in this case. Our starting
point is the framework for evaluating the materiality of
Brady evidence established in
United States v.
Agurs. The Court in
Agurs distinguished three
situations involving the discovery, after trial, of information
favorable to the accused that had been known to the prosecution but
unknown to the defense. The first situation was the prosecutor's
knowing use of perjured testimony or, equivalently, the
prosecutor's knowing failure to disclose that testimony used to
convict the defendant was false. The Court noted the
well-established rule that
"a conviction obtained by the knowing use of perjured testimony
is fundamentally unfair, and must be set aside if there is any
reasonable likelihood that the false testimony could have affected
the judgment of the jury.
Page 473 U. S. 679
427 U.S. at
427 U. S. 103 (footnote
omitted). [
Footnote 8] Although
this rule is stated in terms that treat the knowing use of perjured
testimony as error subject to harmless error review, [
Footnote 9] it may as
Page 473 U. S. 680
easily be stated as a materiality standard under which the fact
that testimony is perjured is considered material unless failure to
disclose it would be harmless beyond a reasonable doubt. The Court
in
Agurs justified this standard of materiality on the
ground that the knowing use of perjured testimony involves
prosecutorial misconduct and, more importantly, involves 'a
corruption of the truth-seeking function of the trial process.'
Id. at
427 U. S. 104."
At the other extreme is the situation in
Agurs itself,
where the defendant does not make a
Brady request and the
prosecutor fails to disclose certain evidence favorable to the
accused. The Court rejected a harmless error rule in that
situation, because, under that rule, every nondisclosure is treated
as error, thus imposing on the prosecutor a constitutional duty to
deliver his entire file to defense counsel. [
Footnote 10] 427 U.S. at
427 U. S.
111-112. At the same time, the Court rejected a standard
that would require the defendant to demonstrate that the evidence,
if disclosed, probably would have resulted in acquittal.
Id. at
427 U. S. 111.
The Court reasoned:
"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."
Ibid. The
Page 473 U. S. 681
standard of materiality applicable in the absence of a specific
Brady request is therefore stricter than the harmless
error standard, but more lenient to the defense than the newly
discovered evidence standard.
The third situation identified by the Court in
Agurs is
where the defense makes a specific request and the prosecutor fails
to disclose responsive evidence. [
Footnote 11] The Court did not define the standard of
materiality applicable in this situation, [
Footnote 12] but suggested that the standard
might be more lenient to the defense than in the situation in which
the defense makes no request or only a general request. 427 U.S. at
427 U. S. 106.
The Court also noted: "When the prosecutor receives a specific and
relevant request, the failure to make any response is seldom, if
ever, excusable."
Ibid.
The Court has relied on and reformulated the
Agurs
standard for the materiality of undisclosed evidence in two
subsequent cases arising outside the
Brady context. In
neither case did the Court's discussion of the
Agurs
standard distinguish among the three situations described in
Agurs. In
United States v. Valenzuela-Bernal,
458 U. S. 858,
458 U. S. 874
(1982), the Court held that due process is violated when testimony
is made unavailable to the defense by Government deportation of
witnesses "only if there is a reasonable likelihood that the
testimony could have affected the judgment of the
Page 473 U. S. 682
trier of fact." And in
Strickland v. Washington,
466 U. S. 668
(1984), the Court held that a new trial must be granted when
evidence is not introduced because of the incompetence of counsel
only if "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different."
Id. at
466 U. S. 694.
[
Footnote 13] The
Strickland Court defined a "reasonable probability" as "a
probability sufficient to undermine confidence in the outcome."
Ibid.
We find the
Strickland formulation of the
Agurs test for materiality sufficiently flexible to cover
the "no request," "general request," and "specific request" cases
of prosecutorial failure to disclose evidence favorable to the
accused: 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. A
"reasonable probability" is a probability sufficient to undermine
confidence in the outcome.
The Government suggests that a materiality standard more
favorable to the defendant reasonably might be adopted in specific
request cases.
See Brief for United States 31. The
Government notes that an incomplete response to a specific request
not only deprives the defense of certain evidence but also has the
effect of representing to the defense that the evidence does not
exist. In reliance on this misleading representation, the defense
might abandon lines of independent investigation, defenses, or
trial strategies that it otherwise would have pursued.
Ibid.
We agree that the prosecutor's failure to respond fully to a
Brady request may impair the adversary process in this
manner. And the more specifically the defense requests certain
evidence, thus putting the prosecutor on notice of its value, the
more reasonable it is for the defense to assume from the
Page 473 U. S. 683
nondisclosure that the evidence does not exist, and to make
pretrial and trial decisions on the basis of this assumption. This
possibility of impairment does not necessitate a different standard
of materiality, however, for under the
Strickland
formulation, the reviewing court may consider directly any adverse
effect that the prosecutor's failure to respond might have had on
the preparation or presentation of the defendant's case. The
reviewing court should assess the possibility that such effect
might have occurred in light of the totality of the circumstances
and with an awareness of the difficulty of reconstructing in a
post-trial proceeding the course that the defense and the trial
would have taken had the defense not been misled by the
prosecutor's incomplete response.
B
In the present case, we think that there is a significant
likelihood that the prosecutor's response to respondent's discovery
motion misleadingly induced defense counsel to believe that
O'Connor and Mitchell could not be impeached on the basis of bias
or interest arising from inducements offered by the Government.
Defense counsel asked the prosecutor to disclose any inducements
that had been made to witnesses, and the prosecutor failed to
disclose that the possibility of a reward had been held out to
O'Connor and Mitchell if the information they supplied led to "the
accomplishment of the objective sought to be obtained . . . to the
satisfaction of [the Government]." App. 22 and 23. This possibility
of a reward gave O'Connor and Mitchell a direct, personal stake in
respondent's conviction. The fact that the stake was not guaranteed
through a promise or binding contract, but was expressly contingent
on the Government's satisfaction with the end result, served only
to strengthen any incentive to testify falsely in order to secure a
conviction. Moreover, the prosecutor disclosed affidavits that
stated that O'Connor and Mitchell received no promises of reward in
return for providing information in the affidavits implicating
respondent in
Page 473 U. S. 684
criminal activity. In fact, O'Connor and Mitchell signed the
last of these affidavits the very day after they signed the ATF
contracts. While the Government is technically correct that the
blank contracts did not constitute a "promise of reward," the
natural effect of these affidavits would be misleadingly to induce
defense counsel to believe that O'Connor and Mitchell provided the
information in the affidavits, and ultimately their testimony at
trial recounting the same information, without any
"inducements."
The District Court, nonetheless, found beyond a reasonable doubt
that, had the information that the Government held out the
possibility of reward to its witnesses been disclosed, the result
of the criminal prosecution would not have been different. If this
finding were sustained by the Court of Appeals, the information
would be immaterial even under the standard of materiality
applicable to the prosecutor's knowing use of perjured testimony.
Although the express holding of the Court of Appeals was that the
nondisclosure in this case required automatic reversal, the Court
of Appeals also stated that it "disagreed" with the District
Court's finding of harmless error. In particular, the Court of
Appeals appears to have disagreed with the factual premise on which
this finding expressly was based. The District Court reasoned that
O'Connor's and Mitchell's testimony was exculpatory on the
narcotics charges. The Court of Appeals, however, concluded, after
reviewing the record, that O'Connor's and Mitchell's testimony was,
in fact, inculpatory on those charges. 719 F.2d at 1464, n. 1.
Accordingly, we reverse the judgment of the Court of Appeals and
remand the case to that court for a determination whether there is
a reasonable probability that, had the inducement offered by the
Government to O'Connor and Mitchell been disclosed to the defense,
the result of the trial would have been different.
It is so ordered. JUSTICE POWELL took no part in the decision of
this case.
Page 473 U. S. 685
[
Footnote 1]
In addition, � 10(b) of the motion requested
"[p]romises or representations made to any persons the
government intends to call as witnesses at trial, including but not
limited to promises of no prosecution, immunity, lesser sentence,
etc.,"
and � 11 requested
"[a]ll information which would establish the reliability of the
Milwaukee Railroad Employees in this case, whose testimony formed
the basis for the search warrant."
App. 18-19.
[
Footnote 2]
The Jencks Act, 18 U.S.C. § 3500, requires the prosecutor to
disclose, after direct examination of a Government witness and on
the defendant's motion, any statement of the witness in the
Government's possession that relates to the subject matter of the
witness' testimony.
[
Footnote 3]
Brief for United States 3, quoting Memorandum of Points and
Authorities in Support of Pet. for Habeas Corpus, CV80-3592-RJK(M)
(CD Cal.) Exhibits 1-9.
[
Footnote 4]
The Assistant United States Attorney who prosecuted respondent
stated in stipulated testimony that he had not known that the
contracts existed, and that he would have furnished them to
respondent had he known of them.
See App. to Pet. for
Cert. 13a.
[
Footnote 5]
The Magistrate found, too, that ATF paid O'Connor and Mitchell,
respectively, $90 and $80 in April and May, 1977, before trial, but
concluded that these payments were intended to reimburse O'Connor
and Mitchell for expenses, and would not have provided a basis for
impeaching O'Connor's and Mitchell's trial testimony. The District
Court adopted this finding and conclusion.
Id. at 7a,
13a.
[
Footnote 6]
By requiring the prosecutor to assist the defense in making its
case, the
Brady rule represents a limited departure from a
pure adversary model. The Court has recognized, however, that the
prosecutor's role transcends that of an adversary: he
"is the representative not of an ordinary party to a
controversy, but of a sovereignty . . . whose interest . . . in a
criminal prosecution is not that it shall win a case, but that
justice shall be done."
Berger v. United States, 295 U. S.
78,
295 U. S. 88
(1935).
See Brady v. Maryland, 373 U.S. at
373 U. S.
87-88.
[
Footnote 7]
See United States v. Agurs, 427 U. S.
97,
427 U. S. 106,
427 U. S. 111
(1976);
Moore v. Illinois, 408 U.
S. 786,
408 U. S. 795
(1972).
See also California v. Trombetta, 467 U.
S. 479,
467 U. S. 488,
n. 8 (1984). An interpretation of
Brady to create a broad,
constitutionally required right of discovery "would entirely alter
the character and balance of our present systems of criminal
justice."
Giles v. Maryland, 386 U. S.
66,
386 U. S. 117
(1967) (dissenting opinion). Furthermore, a rule that the
prosecutor commits error by any failure to disclose evidence
favorable to the accused, no matter how insignificant, would impose
an impossible burden on the prosecutor, and would undermine the
interest in the finality of judgments.
[
Footnote 8]
In fact, the
Brady rule has its roots in a series of
cases dealing with convictions based on the prosecution's knowing
use of perjured testimony. In
Mooney v. Holohan,
294 U. S. 103
(1935), the Court established the rule that the knowing use by a
state prosecutor of perjured testimony to obtain a conviction, and
the deliberate suppression of evidence that would have impeached
and refuted the testimony, constitutes a denial of due process. The
Court reasoned that "a deliberate deception of court and jury by
the presentation of testimony known to be perjured" is inconsistent
with "the rudimentary demands of justice."
Id. at
294 U. S. 112.
The Court reaffirmed this principle in broader terms in
Pyle v.
Kansas, 317 U. S. 213
(1942), where it held that allegations that the prosecutor had
deliberately suppressed evidence favorable to the accused and had
knowingly used perjured testimony were sufficient to charge a due
process violation.
The Court again reaffirmed this principle in
Napue v.
Illinois, 360 U. S. 264
(1959). In
Napue, the principal witness for the
prosecution falsely testified that he had been promised no
consideration for his testimony. The Court held that the knowing
use of false testimony to obtain a conviction violates due process
regardless of whether the prosecutor solicited the false testimony
or merely allowed it to go uncorrected when it appeared. The Court
explained that the principle that a State may not knowingly use
false testimony to obtain a conviction -- even false testimony that
goes only to the credibility of the witness -- is "implicit in any
concept of ordered liberty."
Id. at
360 U. S. 269.
Finally, the Court held that it was not bound by the state court's
determination that the false testimony "could not in any reasonable
likelihood have affected the judgment of the jury."
Id. at
360 U. S. 271.
The Court conducted its own independent examination of the record
and concluded that the false testimony "may have had an effect on
the outcome of the trial."
Id. at
360 U. S. 272.
Accordingly, the Court reversed the judgment of conviction.
[
Footnote 9]
The rule that a conviction obtained by the knowing use of
perjured testimony must be set aside if there is any reasonable
likelihood that the false testimony could have affected the jury's
verdict derives from
Napue v. Illinois, 360 U.S. at
360 U. S. 271.
See n 8,
supra. See also Giglio v. United States,
405 U. S. 150,
405 U. S. 154
(1972) (quoting
Napue, 360 U.S. at
360 U. S.
271).
Napue antedated
Chapman v.
California, 386 U. S. 18
(1967), where the "harmless beyond a reasonable doubt" standard was
established. The Court in
Chapman noted that there was
little, if any, difference between a rule formulated, as in
Napue, in terms of "
whether there is a reasonable
possibility that the evidence complained of might have contributed
to the conviction,'" and a rule
"'requiring the beneficiary of a constitutional error to prove
beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.'"
386 U.S. at
386 U. S. 24
(quoting
Fahy v. Connecticut, 375 U. S.
85,
375 U. S. 86-87
(1963)). It is therefore clear, as indeed the Government concedes,
see Brief for United States 20, and 36-38, that this
Court's precedents indicate that the standard of review applicable
to the knowing use of perjured testimony is equivalent to the
Chapman harmless error standard.
[
Footnote 10]
This is true only if the nondisclosure is treated as error
subject to harmless error review, and not if the nondisclosure is
treated as error only if the evidence is material under a not
"harmless beyond a reasonable doubt" standard.
[
Footnote 11]
The Court in
Agurs identified
Brady as a case
in which specific information was requested by the defense. 427
U.S. at
427 U. S. 106.
The request in
Brady was for the extrajudicial statements
of Brady's accomplice.
See 373 U.S. at
373 U. S.
84.
[
Footnote 12]
The Court in
Agurs noted.
"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."
427 U.S. at
427 U. S. 104.
Since the
Agurs Court identified
Brady as a
"specific request" case,
see n 11,
supra, this language might be taken as
indicating the standard of materiality applicable in such a case.
It is clear, however, that the language merely explains the meaning
of the term "materiality." It does not establish a standard of
materiality, because it does not indicate what quantum of
likelihood there must be that the undisclosed evidence would have
affected the outcome.
[
Footnote 13]
In particular, the Court explained in
Strickland:
"When a defendant challenges a conviction, the question is
whether there is a reasonable probability that, absent the errors,
the factfinder would have had a reasonable doubt respecting
guilt."
466 U.S. at
466 U. S.
695.
JUSTICE WHITE, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST
join, concurring in part and concurring in the judgment.
I agree with the Court that respondent is not entitled to have
his conviction overturned unless he can show that the evidence
withheld by the Government was "material," and I therefore join
Parts I and II of the Court's opinion. I also agree with JUSTICE
BLACKMUN that, for purposes of this inquiry,
"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."
Ante at
473 U. S. 682.
As the Justice correctly observes, this standard is "sufficiently
flexible" to cover all instances of prosecutorial failure to
disclose evidence favorable to the accused.
Ibid. Given
the flexibility of the standard and the inherently fact-bound
nature of the cases to which it will be applied, however, I see no
reason to attempt to elaborate on the relevance to the inquiry of
the specificity of the defense's request for disclosure, either
generally or with respect to this case. I would hold simply that
the proper standard is one of reasonable probability, and that the
Court of Appeals' failure to apply this standard necessitates
reversal. I therefore concur in the judgment.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins,
dissenting.
When the Government withholds from a defendant evidence that
might impeach the prosecution's only witnesses, that failure to
disclose cannot be deemed harmless error. Because that is precisely
the nature of the undisclosed evidence in this case, I would affirm
the judgment of the Court of Appeals, and would not remand for
further proceedings.
I
The federal grand jury indicted the respondent, Hughes Anderson
Bagley, on charges involving possession of firearms
Page 473 U. S. 686
and controlled substances with intent to distribute. Following a
bench trial, Bagley was found not guilty of the firearms charges,
guilty of two counts of knowingly and intentionally distributing
Valium, and guilty of several counts of a lesser included offense
of possession of controlled substances. He was sentenced to six
months' imprisonment and a special parole term of five years on the
first count of distribution, and to three years of imprisonment,
which were suspended, and five years' probation, on the second
distribution count. He received a suspended sentence and five
years' probation for the possession convictions.
The record plainly demonstrates that, on the two counts for
which Bagley received sentences of imprisonment, the Government's
entire case hinged on the testimony of two private security guards
who aided the Bureau of Alcohol, Tobacco and Firearms (ATF) in its
investigation of Bagley. In 1977, the two guards, O'Connor and
Mitchell, worked for the Milwaukee Railroad; for about three years,
they had been social acquaintances of Bagley, with whom they often
shared coffee breaks. 7 Tr. 2-3; 8 Tr. 2a-3a. At trial, they
testified that, on two separate occasions, they had visited Bagley
at his home, where Bagley had responded to O'Connor's complaint
that he was extremely anxious by giving him Valium pills. In total,
Bagley received $8 from O'Connor, representing the cost of the
pills. At trial, Bagley testified that he had a prescription for
the Valium because he suffered from a bad back, 14 Tr. 963-964. No
testimony to the contrary was introduced. O'Connor and Mitchell
each testified that they had worn concealed transmitters and body
recorders at these meetings, but the tape recordings were
insufficiently clear to be admitted at trial and corroborate their
testimony.
Before trial, counsel for Bagley had filed a detailed discovery
motion requesting, among other things, "any deals, promises or
inducements made to witnesses in exchange for their testimony."
App. 17-19. In response to the discovery request, the Government
had provided affidavits sworn by
Page 473 U. S. 687
O'Connor and Mitchell that had been prepared during their
investigation of Bagley. Each affidavit recounted in detail the
dealings the witnesses had had with Bagley, and closed with the
declaration,
"I made this statement freely and voluntarily without any
threats or rewards, or promises of reward having been made to me in
return for it."
Brief for United States 3, quoting Memorandum of Points and
Authorities in Support of Pet. for Habeas Corpus, CV803592-RJK(M)
(CD Cal.) Exhibits 1-9. Both of these agents testified at trial
thereafter, and the Government did not disclose the existence of
any deals, promises, or inducements. Counsel for Bagley asked
O'Connor on cross-examination whether he was testifying in response
to pressure or threats from the Government about his job, and
O'Connor said he was not. 7 Tr. 89-90. In light of the affidavits,
as well as the prosecutor's silence as to the existence of any
promises, deals, or inducements, counsel did not pursue the issue
of bias of either guard.
As it turns out, however, in May, 1977, seven months prior to
trial, O'Connor and Mitchell each had signed an agreement providing
that ATF would pay them for information they provided. The form was
entitled "Contract for Purchase of Information and Payment of Lump
Sum Therefor," and provided that the Bureau would,
"upon the accomplishment of the objective sought to be obtained
. . . pay to said vendor a sum commensurate with services and
information rendered."
App. 22-23. It further invited the Bureau's special agent in
charge of the investigation, Agent Prins, to recommend an amount to
be paid after the information received had proved "worthy of
compensation." Agent Prins had personally presented these forms to
O'Connor and Mitchell for their signatures. The two witnesses
signed the last of their affidavits, which declared the absence of
any promise of reward,
the day after they signed the ATF
forms. After trial, Agent Prins requested that O'Connor and
Mitchell each be paid $500, but the Bureau reduced these "rewards"
to $300 each. App. to
Page 473 U. S. 688
Pet. for Cert. 14a. The District Court Judge concluded that
"it appears probable to the Court that O'Connor and Mitchell did
expect to receive from the United States some kind of compensation,
over and above their expenses, for their assistance, though perhaps
not for their testimony."
Id. at 7a.
Upon discovering these ATF forms through a Freedom of
Information Act request, Bagley sought relief from his conviction.
The District Court Judge denied Bagley's motion to vacate his
sentence, stating that, because he was the same judge who had been
the original trier of fact, he was able to determine the effect the
contracts would have had on his decision, more than four years
earlier, to convict Bagley. The judge stated that, beyond a
reasonable doubt, the contracts, if disclosed, would have had no
effect upon the convictions:
"The Court has read in their entirety the transcripts of the
testimony of James P. O'Connor and Donald E. Mitchell at the trial.
. . . Almost all of the testimony of both of those witnesses was
devoted to the firearm charges in the indictment. The Court found
the defendant not guilty of those charges. With respect to the
charges against the defendant of distributing controlled substances
and possessing controlled substances with the intention of
distributing them, the testimony of O'Connor and Mitchell was
relatively very brief. With respect to the charges relating to
controlled substances, cross-examination of those witnesses by
defendant's counsel did not seek to discredit their testimony as to
the facts of distribution, but rather sought to show that the
controlled substances in question came from supplies which had been
prescribed for defendant's own use. As to that aspect of their
testimony, the testimony of O'Connor and Mitchell tended to be
favorable to the defendant."
Id. at 8a.
Page 473 U. S. 689
The foregoing statement, as to which the Court remands for
further consideration, is seriously flawed on its face. First, the
testimony that the court describes was in fact the
only
inculpatory testimony in the case as to the two counts for
which Bagley received a sentence of imprisonment. If, as the judge
claimed, the testimony of the two information "vendors" was "very
brief" and in part favorable to the defendant, that fact shows the
weakness of the prosecutor's case, not the harmlessness of the
error. If the testimony that might have been impeached is weak and
also cumulative, corroborative, or tangential, the failure to
disclose the impeachment evidence could conceivably be held
harmless. But when the testimony is the start and finish of the
prosecution's case, and is weak nonetheless, quite a different
conclusion must necessarily be drawn.
Second, the court's statement that Bagley did not attempt to
discredit the witnesses' testimony, as if to suggest that
impeachment evidence would not have been used by the defense,
ignores the realities of trial preparation and strategy, and is
factually erroneous as well. Initially, the Government's failure to
disclose the existence of any inducements to its witnesses, coupled
with its disclosure of affidavits stating that no promises had been
made, would lead all but the most careless lawyer to step wide and
clear of questions about promises or inducements. The combination
of nondisclosure and disclosure would simply lead any reasonable
attorney to believe that the witness could not be impeached on that
basis. Thus, a firm avowal that no payment is being received in
return for assistance and testimony, if offered at trial by a
witness who is not even a Government employee, could be devastating
to the defense. A wise attorney would, of necessity, seek an
alternative defense strategy.
Moreover, counsel for Bagley in fact did attempt to discredit
O'Connor, by asking him whether two ATF agents had pressured him or
had threatened that his job might be in
Page 473 U. S. 690
jeopardy, in order to get him to cooperate. 7 Tr. 89-90. But
when O'Connor answered in the negative,
ibid., counsel
stopped this line of questioning. In addition, counsel for Bagley
attempted to argue to the District Court, in his closing argument,
that O'Connor and Mitchell had "fabricated" their accounts, 14 Tr.
1117, but the court rejected the proposition:
"Let me say this to you. I would find it hard to believe really
that their testimony was fabricated. I think they might have been
mistaken. You know, it is possible that they were mistaken.
I
really did not get the impression at all that either one or both of
those men were trying at least in court here to make a case against
the defendant."
Id. at 1117-1118. (Emphasis added.) The District Court,
in so saying, of course had seen no evidence to suggest that the
two witnesses might have any motive for "mak[ing] a case" against
Bagley. Yet, as JUSTICE BLACKMUN points out, the possibility of a
reward, the size of which is directly related to the Government's
success at trial, gave the two witnesses a "personal stake" in the
conviction and an "incentive to testify falsely in order to secure
a conviction."
Ante at
473 U. S.
683.
Nor is this case unique. Whenever the Government fails, in
response to a request, to disclose impeachment evidence relating to
the credibility of its key witnesses, the truthfinding process of
trial is necessarily thrown askew. The failure to disclose evidence
affecting the overall credibility of witnesses corrupts the process
to some degree in all instances,
see Giglio v. United
States, 405 U. S. 150
(1972);
Napue v. Illinois, 360 U.
S. 264 (1959);
United States v. Agurs,
427 U. S. 97,
427 U. S. 121
(1976) (MARSHALL, J., dissenting), but when "the
reliability of
a given witness may well be determinative of guilt or innocence,'"
Giglio, supra, at
405 U. S. 154 (quoting Napue, supra, at
360 U. S.
269), and when "the Government's case depend[s] almost
entirely on" the testimony of a certain witness, 405 U.S. at
405 U. S. 154,
evidence of that witness' possible
Page 473 U. S. 691
bias simply may not be said to be irrelevant, or its omission
harmless. As THE CHIEF JUSTICE said in
Giglio v. United
States, in which the Court ordered a new trial in a case in
which a promise to a key witness was not disclosed to the jury:
"[W]ithout [Taliento's testimony], there could have been no
indictment and no evidence to carry the case to the jury.
Taliento's credibility as a witness was therefore an important
issue in the case, and evidence of any understanding or agreement
as to a future prosecution would be relevant to his credibility,
and the jury was entitled to know of it."
"For these reasons, the due process requirements enunciated in
Napue and other cases cited earlier require a new
trial."
Id. at
405 U. S.
154-155. Here, too, witnesses O'Connor and Mitchell were
crucial to the Government's case. Here, too, their personal
credibility was potentially dispositive, particularly since the
allegedly corroborating tape recordings were not audible. It simply
cannot be denied that the existence of a contract signed by those
witnesses, promising a reward whose size would depend "on the
Government's satisfaction with the end result,"
ante at
473 U. S. 683,
might sway the trier of fact, or cast doubt on the truth of all
that the witnesses allege. In such a case, the trier of fact is
absolutely entitled to know of the contract, and the defense
counsel is absolutely entitled to develop his case with an
awareness of it. Whatever the applicable standard of materiality,
see infra, in this instance, it undoubtedly is well
met.
Indeed,
Giglio essentially compels this result. The
similarities between this case and that one are evident. In both
cases, the triers of fact were left unaware of Government
inducements to key witnesses. In both cases, the individual trial
prosecutors acted in good faith when they failed to disclose the
exculpatory evidence.
See Giglio, supra, at
405 U. S.
151-153; App. to Pet. for Cert. 13a (Magistrate's
finding that
Page 473 U. S. 692
Bagley prosecutor would have disclosed information had he known
of it). The sole difference between the two cases lies in the fact
that, in
Giglio, the prosecutor affirmatively stated
to the trier of fact that no promises had been made. Here,
silence in response to a defense request took the place of an
affirmative error at trial -- although the prosecutor did make an
affirmative misrepresentation to the defense in the affidavits.
Thus, in each case, the trier of fact was left unaware of powerful
reasons to question the credibility of the witnesses.
"[T]he 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."
Agurs, supra, at
427 U. S. 120
(MARSHALL, J., dissenting). In this case, as in
Giglio, a
new trial is in order, and the Court of Appeals correctly reversed
the District Court's denial of such relief.
II
Instead of affirming, the Court today chooses to reverse and
remand the case for application of its newly stated standard to the
facts of this case. While I believe that the evidence at issue
here, which remained undisclosed despite a particular request,
undoubtedly was material under the Court's standard, I also have
serious doubts whether the Court's definition of the constitutional
right at issue adequately takes account of the interests this Court
sought to protect in its decision in
Brady v. Maryland,
373 U. S. 83
(1963).
A
I begin from the fundamental premise, which hardly bears
repeating, that "[t]he purpose of a trial is as much the acquittal
of an innocent person as it is the conviction of a guilty one."
Application of Kapatos, 208 F.
Supp. 883, 888 (SDNY 1962);
see Giles v. Maryland,
386 U. S. 66,
386 U. S. 98
(1967) (Fortas, J., concurring in judgment) ("The State's
obligation is not to convict, but to see that, so far as possible,
truth emerges"). When evidence favorable to the defendant is known
to exist,
Page 473 U. S. 693
disclosure only enhances the quest for truth; it takes no direct
toll on that inquiry. Moreover, the existence of any small piece of
evidence favorable to the defense may, in a particular case, create
just the doubt that prevents the jury from returning a verdict of
guilty. The private whys and wherefores of jury deliberations pose
an impenetrable barrier to our ability to know just which piece of
information might make, or might have made, a difference.
When the state does not disclose information in its possession
that might reasonably be considered favorable to the defense, it
precludes the trier of fact from gaining access to such
information, and thereby undermines the reliability of the verdict.
Unlike a situation in which exculpatory evidence exists, but
neither the defense nor the prosecutor has uncovered it, in this
situation, the state already has, resting in its files, material
that would be of assistance to the defendant. With a minimum of
effort, the state could improve the real and apparent fairness of
the trial enormously, by assuring that the defendant may place
before the trier of fact favorable evidence known to the
government. This proposition is not new. We have long recognized
that, within the limit of the state's ability to identify so-called
exculpatory information, the state's concern for a fair verdict
precludes it from withholding from the defense evidence favorable
to the defendant's case in the prosecutor's files.
See, e.g.,
Pyle v. Kansas, 317 U. S. 213,
317 U. S.
215-216 (1942) (allegation that imprisonment resulted
from perjured testimony and deliberate suppression by authorities
of evidence favorable to him "charge a deprivation of rights
guaranteed by the Federal Constitution"). [
Footnote 2/1]
Page 473 U. S. 694
This recognition no doubt stems in part from the frequently
considerable imbalance in resources between most criminal
defendants and most prosecutors' offices. Many, perhaps most,
criminal defendants in the United States are represented by
appointed counsel, who often are paid minimal wages and operate on
shoestring budgets. In addition, unlike police, defense counsel
generally is not present at the scene of the crime, or at the time
of arrest, but instead comes into the case late. Moreover, unlike
the government, defense counsel is not in the position to make
deals with witnesses to gain evidence. Thus, an inexperienced,
unskilled, or unaggressive attorney often is unable to amass the
factual support necessary to a reasonable defense. When favorable
evidence is in the hands of the prosecutor but not disclosed, the
result may well be that the defendant is deprived of a fair chance
before the trier of fact, and the trier of fact is deprived of the
ingredients necessary to a fair decision. This grim reality, of
course, poses a direct challenge to the traditional model of the
adversary criminal process, [
Footnote
2/2] and perhaps
Page 473 U. S. 695
because this reality so directly questions the fairness of our
longstanding processes, change has been cautious and halting. Thus,
the Court has not gone the full road and expressly required that
the state provide to the defendant access to the prosecutor's
complete files, or investigators who will assure that the defendant
has an opportunity to discover every existing piece of helpful
evidence.
But cf. Ake v. Oklahoma, 470 U. S.
68 (1985) (access to assistance of psychiatrist
constitutionally required on proper showing of need). Instead, in
acknowledgment of the fact that important interests are served when
potentially favorable evidence is disclosed, the Court has
fashioned a compromise, requiring that the prosecution identify and
disclose to the defendant favorable material that it possesses.
This requirement is but a small, albeit important, step toward
equality of justice. [
Footnote
2/3]
B
Brady v. Maryland, 373 U. S. 83
(1963), of course, established this requirement of disclosure as a
fundamental element of a fair trial by holding that a defendant was
denied due process if he was not given access to favorable evidence
that is material either to guilt or punishment. Since
Brady was decided, this Court has struggled, in a series
of decisions, to define how best to effectuate the right
recognized. To my mind, the
Brady decision, the reasoning
that underlay it, and the fundamental interest in a fair trial
combine to give the criminal defendant the right to receive from
the prosecutor, and the prosecutor the affirmative duty to turn
Page 473 U. S. 696
over to the defendant,
all information known to the
government that might reasonably be considered favorable to the
defendant's case. Formulation of this right, and imposition of this
duty, are "the essence of due process of law. It is the State that
tries a man, and it is the State that must insure that the trial is
fair."
Moore v. Illinois, 408 U.
S. 786,
408 U. S.
809-810 (1972) (MARSHALL, J., concurring in part and
dissenting in part). If that right is denied, or if that duty is
shirked, however, I believe a reviewing court should not
automatically reverse, but instead should apply the harmless error
test the Court has developed for instances of error affecting
constitutional rights.
See Chapman v. California,
386 U. S. 18
(1967).
My view is based in significant part on the reality of criminal
practice and on the consequently inadequate protection to the
defendant that a different rule would offer. To implement
Brady, courts must of course work within the confines of
the criminal process. Our system of criminal justice is animated by
two seemingly incompatible notions: the adversary model and the
state's primary concern with justice, not convictions.
Brady, of course, reflects the latter goal of justice, and
is in some ways at odds with the competing model of a sporting
event. Our goal, then, must be to integrate the
Brady
right into the harsh, daily reality of this apparently discordant
criminal process.
At the trial level, the duty of the state to effectuate
Brady devolves into the duty of the prosecutor; the dual
role that the prosecutor must play poses a serious obstacle to
implementing
Brady. The prosecutor is by trade, if not
necessity, a zealous advocate. He is a trained attorney who must
aggressively seek convictions in court on behalf of a victimized
public. At the same time, as a representative of the state, he must
place foremost in his hierarchy of interests the determination of
truth. Thus, for purposes of
Brady, the prosecutor must
abandon his role as an advocate and pore through his files, as
objectively as possible, to identify the
Page 473 U. S. 697
material that could undermine his case. Given this obviously
unharmonious role, it is not surprising that these advocates
oftentimes overlook or downplay potentially favorable evidence,
often in cases in which there is no doubt that the failure to
disclose was a result of absolute good faith. Indeed, one need only
think of the Fourth Amendment's requirement of a neutral
intermediary, who tests the strength of the policeman-advocate's
facts, to recognize the curious status
Brady imposes on a
prosecutor. One telling example, offered by Judge Newman when he
was a United States Attorney, suffices:
"I recently had occasion to discuss [
Brady] at a PLI
Conference in New York City before a large group of State
prosecutors. . . . I put to them this case: You are prosecuting a
bank robbery. You have talked to two or three of the tellers and
one or two of the customers at the time of the robbery. They have
all taken a look at your defendant in a line-up, and they have
said, 'This is the man.' In the course of your investigation you
also have found another customer who was in the bank that day, who
viewed the suspect and came back and said, 'This is
not
the man.'"
"The question I put to these prosecutors was, do you believe you
should disclose to the defense the name of the witness who, when he
viewed the suspect, said 'that is not the man?' In a room of
prosecutors not quite as large as this group, but almost as large,
only two hands went up. There were only two prosecutors in that
group who felt they should disclose or would disclose that
information. Yet I was putting to them what I thought was the
easiest case -- the clearest case for disclosure of exculpatory
information!"
J. Newman, A Panel Discussion before the Judicial Conference of
the Second Judicial Circuit (Sept. 8, 1967), reprinted in Discovery
in Criminal Cases, 44 F.R.D. 481, 500-501 (1968) (hereafter
Newman).
Page 473 U. S. 698
While familiarity with
Brady no doubt has increased
since 1967, the dual role that the prosecutor must play, and the
very real pressures that role creates, have not changed.
The prosecutor surely greets the moment at which he must turn
over
Brady material with little enthusiasm. In perusing
his files, he must make the often difficult decision as to whether
evidence is favorable, and must decide on which side to err when
faced with doubt. In his role as advocate, the answers are clear.
In his role as representative of the state, the answers should be
equally clear, and often to the contrary. Evidence that is of
doubtful worth in the eyes of the prosecutor could be of
inestimable value to the defense, and might make the difference to
the trier of fact.
Once the prosecutor suspects that certain information might have
favorable implications for the defense, either because it is
potentially exculpatory or relevant to credibility, I see no reason
why he should not be required to disclose it. After all, favorable
evidence indisputably enhances the truthseeking process at trial.
And it is the job of the defense, not the prosecution, to decide
whether and in what way to use arguably favorable evidence. In
addition, to require disclosure of all evidence that might
reasonably be considered favorable to the defendant would have the
precautionary effect of assuring that no information of potential
consequence is mistakenly overlooked. By requiring full disclosure
of favorable evidence in this way, courts could begin to assure
that a possibly dispositive piece of information is not withheld
from the trier of fact by a prosecutor who is torn between the two
roles he must play. A clear rule of this kind, coupled with a
presumption in favor of disclosure, also would facilitate the
prosecutor's admittedly difficult task by removing a substantial
amount of unguided discretion.
If a trial will thereby be more just, due process would seem to
require such a rule absent a countervailing interest. I see little
reason for the government to keep such information
Page 473 U. S. 699
from the defendant. Its interest in nondisclosure at the trial
stage is at best slight: the government apparently seeks to avoid
the administrative hassle of disclosure, and to prevent disclosure
of inculpatory evidence that might result in witness intimidation
and manufactured rebuttal evidence. [
Footnote 2/4] Neither of these concerns, however,
counsels in favor of a rule of nondisclosure in close or ambiguous
cases. To the contrary, a rule simplifying the disclosure decision,
by definition, does not make that decision more complex. Nor does
disclosure of favorable evidence inevitably lead to disclosure of
inculpatory evidence, as might an open file policy, or to the
anticipated wrongdoings of defendants and their lawyers, if indeed
such fears are warranted. We have other mechanisms for disciplining
unscrupulous defense counsel; hamstringing their clients need not
be one of them. I simply do not find any state interest that
warrants withholding from a presumptively innocent defendant, whose
liberty is at stake in the proceeding, information that bears on
his case and that might enable him to defend himself.
Under the foregoing analysis, the prosecutor's duty is quite
straightforward: he must divulge all evidence that reasonably
appears favorable to the defendant, erring on the side of
disclosure.
C
The Court, however, offers a complex alternative. It defines the
right not by reference to the possible usefulness of the particular
evidence in preparing and presenting the case, but retrospectively,
by reference to the likely effect the evidence will have on the
outcome of the trial. Thus, the Court holds that due process does
not require the prosecutor to turn over evidence unless the
evidence is "material," and the
Page 473 U. S. 700
Court states that 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."
Ante at
473 U. S. 682.
Although this looks like a posttrial standard of review,
see,
e.g., Strickland v. Washington, 466 U.
S. 668 (1984) (adopting this standard of review), it is
not. Instead, the Court relies on this review standard to define
the contours of the defendant's constitutional right to certain
material prior to trial. By adhering to the view articulated in
United States v. Agurs, 427 U. S. 97 (1976)
-- that there is no constitutional duty to disclose evidence unless
nondisclosure would have a certain impact on the trial -- the Court
permits prosecutors to withhold with impunity large amounts of
undeniably favorable evidence, and it imposes on prosecutors the
burden to identify and disclose evidence pursuant to a pretrial
standard that virtually defies definition.
The standard for disclosure that the Court articulates today
enables prosecutors to avoid disclosing obviously exculpatory
evidence while acting well within the bounds of their
constitutional obligation. Numerous lower court cases provide
examples of evidence that is undoubtedly favorable, but not
necessarily "material" under the Court's definition, and that
consequently would not have to be disclosed to the defendant under
the Court's view.
See, e.g., United States v. Sperling,
726 F.2d 69, 71-72 (CA2 1984) (prior statement disclosing motive of
key Government witness to testify),
cert. denied, 467 U.S.
1243 (1984);
King v. Ponte, 717 F.2d 635 (CA1 1983) (prior
inconsistent statements of Government witness);
see also United
States v. Oxman, 740 F.2d 1298, 1311 (CA3 1984) (addressing
"disturbing" prosecutorial tendency to withhold information because
of later opportunity to argue, with the benefit of hindsight, that
information was not "material"),
cert. pending sub nom. United
States v. Pflaumer, No. 84-1033. The result is to veer sharply
away from the basic notion that the fairness of a trial
increases
Page 473 U. S. 701
with the amount of existing favorable evidence to which the
defendant has access, and to disavow the ideal of full
disclosure.
The Court's definition poses other, serious problems. Besides
legitimizing the nondisclosure of clearly favorable evidence, the
standard set out by the Court also asks the prosecutor to predict
what effect various pieces of evidence will have on the trial. He
must evaluate his case and the case of the defendant -- of which he
presumably knows very little -- and perform the impossible task of
deciding whether a certain piece of information will have a
significant impact on the trial, bearing in mind that a defendant
will later shoulder the heavy burden of proving how it would have
affected the outcome. At best, this standard places on the
prosecutor a responsibility to speculate, at times without
foundation, since the prosecutor will not normally know what
strategy the defense will pursue or what evidence the defense will
find useful. At worst, the standard invites a prosecutor, whose
interests are conflicting, to gamble, to play the odds, and to take
a chance that evidence will later turn out not to have been
potentially dispositive. One Court of Appeals has recently vented
its frustration at these unfortunate consequences:
"It seems clear that those tests [for materiality] have a
tendency to encourage unilateral decisionmaking by prosecutors with
respect to disclosure. . . . [T]he root of the problem is the
prosecutor's tendency to adopt a retrospective view of materiality.
Before trial, the prosecutor cannot know whether, after trial,
particular evidence will prove to have been material. . . .
Following their adversarial instincts, some prosecutors have
determined unilaterally that evidence will not be material and,
often in good faith, have disclosed it neither to defense counsel
nor to the court. If and when the evidence emerges after trial, the
prosecutor can always argue,
Page 473 U. S. 702
with the benefit of hindsight, that it was not material."
United States v. Oxman, supra, at 1310.
The Court's standard also encourages the prosecutor to assume
the role of the jury, and to decide whether certain evidence will
make a difference. In our system of justice, that decision properly
and wholly belongs to the jury. The prosecutor, convinced of the
guilt of the defendant and of the truthfulness of his witnesses,
may all too easily view as irrelevant or unpersuasive evidence that
draws his own judgments into question. Accordingly he will decide
the evidence need not be disclosed. But the ideally neutral trier
of fact, who approaches the case from a wholly different
perspective, is by the prosecutor's decision denied the opportunity
to consider the evidence. The reviewing court, faced with a verdict
of guilty, evidence to support that verdict, and pressures, again
understandable, to finalize criminal judgments, is in little better
position to review the withheld evidence than the prosecutor.
I simply cannot agree with the Court that the due process right
to favorable evidence recognized in
Brady was intended to
become entangled in prosecutorial determinations of the likelihood
that particular information would affect the outcome of trial.
Almost a decade of lower court practice with
Agurs
convinces me that courts and prosecutors have come to pay
"too much deference to the federal common law policy of
discouraging discovery in criminal cases, and too little regard to
due process of law for defendants."
United States v. Oxman, supra, at 1310-1311. Apparently
anxious to assure that reversals are handed out sparingly, the
Court has defined a rigorous test of materiality. Eager to apply
the "materiality" standard at the pretrial stage, as the Court
permits them to do, prosecutors lose sight of the basic principles
underlying the doctrine. I would return to the original theory and
promise of
Brady, and reassert the duty of the prosecutor
to disclose all evidence in his files that might reasonably be
considered favorable to the defendant's case. No
Page 473 U. S. 703
prosecutor can know prior to trial whether such evidence
will be of consequence at trial; the mere fact that it
might be, however, suffices to mandate disclosure. [
Footnote 2/5]
Page 473 U. S. 704
D
In so saying, I recognize that a failure to divulge favorable
information should not result in reversal in all cases. It may be
that a conviction should be affirmed on appeal despite the
prosecutor's failure to disclose evidence that reasonably might
have been deemed potentially favorable prior to trial. The state's
interest in nondisclosure at trial is minimal, and should therefore
yield to the readily apparent benefit that full disclosure would
convey to the search for truth. After trial, however, the benefits
of disclosure may at times be tempered by the state's legitimate
desire to avoid retrial when error has been harmless. However, in
making the determination of harmlessness, I would apply our normal
constitutional error test, and reverse unless it is clear beyond a
reasonable doubt that the withheld evidence would not have affected
the outcome of the trial.
See Chapman v. California,
386 U. S. 18
(1967);
see also Agurs, 427 U.S. at
427 U. S.
119-120 (MARSHALL, J., dissenting). [
Footnote 2/6]
Page 473 U. S. 705
Any rule other than automatic reversal, of course, dilutes the
Brady right to some extent, and offers the prosecutor an
incentive not to turn over all information. In practical effect, it
might be argued, there is little difference between the rule I
propose -- that a prosecutor must disclose all favorable evidence
in his files, subject to harmless error review -- and the rule the
Court adopts -- that the prosecutor must disclose only the
favorable information that might affect the outcome of the trial.
According to this argument, if a constitutional right to all
favorable evidence leads to reversal only when the withheld
evidence might have affected the outcome of the trial, the result
will be the same as with a constitutional right only to evidence
that will affect the trial outcome.
See Capra, Access to
Exculpatory Evidence: Avoiding the
Agurs Problems of
Prosecutorial Discretion and Retrospective Review, 53 Ford.L.Rev.
391, 409-410, n. 117 (1984). For several reasons, however, I
disagree. First, I have faith that a prosecutor would treat a rule
requiring disclosure of all information of a certain kind
differently from a rule requiring disclosure only of some of that
information. Second, persistent or egregious failure to comply with
the constitutional duty could lead to disciplinary actions by the
courts. Third, the standard of harmlessness I adopt is more
protective of the defendant than that chosen by the Court, placing
the burden on the prosecutor, rather than the defendant, to prove
the harmlessness of his actions. It would be a foolish prosecutor
who gambled too glibly with that standard of review. And finally,
it is unrealistic to ignore the fact that, at the appellate stage,
the state has an interest in avoiding retrial where the error is
harmless beyond a reasonable doubt. That interest counsels against
requiring a new trial in every case.
Page 473 U. S. 706
Thus, while I believe that some review for harmlessness is in
order, I disagree with the Court's standard, even were it merely a
standard for review, and not a definition of "materiality." First,
I see no significant difference, for truthseeking purposes, between
the
Giglio situation and this one; for the same reasons I
believe the result must therefore be the same here as in
Giglio, see supra, at
473 U. S.
691-692, I also believe the standard for reversal should
be the same. The defendant's entitlement to a new trial ought to be
no different in the two cases, and the burden he faces on appeal
should also be the same.
Giglio remains the law for a
class of cases, and I reaffirm my belief that the same standard
applies to this case as well.
See Agurs, supra, at
427 U. S.
119-120 (MARSHALL, J., dissenting).
Second, only a strict appellate standard, which places on the
prosecutor a burden to defend his decisions, will remove the
incentive to gamble on a finding of harmlessness. Any lesser
standard, and especially one in which the defendant bears the
burden of proof, provides the prosecutor with ample room to
withhold favorable evidence, and provides a reviewing court with a
simple means to affirm whenever, in its view, the correct result
was reached. This is especially true given the speculative nature
of retrospective review:
"The appellate court's review of 'what might have been' is
extremely difficult in the context of an adversarial system.
Evidence is not introduced in a vacuum; rather, it is built upon.
The absence of certain evidence may thus affect the usefulness, and
hence the use, of other evidence to which defense counsel does have
access. Indeed, the absence of a piece of evidence may affect the
entire trial strategy of defense counsel."
Capra,
supra, at 412. As a consequence, the appellate
court no less than the prosecutor must substitute its judgment for
that of the trier of fact under an inherently slippery test. Given
such factors as a reviewing court's natural inclination to affirm a
judgment
Page 473 U. S. 707
that appears "correct" and that court's obvious inability to
know what a jury ever will do, only a strict and narrow test that
places the burden of proof on the prosecutor will begin to prevent
affirmances in cases in which the withheld evidence might have had
an impact.
Even under the most protective standard of review, however,
courts must be careful to focus on the nature of the evidence that
was not made available to the defendant, and not simply on the
quantity of the evidence against the defendant separate from the
withheld evidence. Otherwise, as the Court today acknowledges, the
reviewing court risks overlooking the fact that a failure to
disclose has a direct effect on the entire course of trial.
Without doubt, defense counsel develops his trial strategy based
on the available evidence. A missing piece of information may well
preclude the attorney from pursuing a strategy that potentially
would be effective. His client might consequently be convicted even
though nondisclosed information might have offered an additional or
alternative defense, if not pure exculpation. Under such
circumstances, a reviewing court must be sure not to focus on the
amount of evidence supporting the verdict to determine whether the
trier of fact reasonably would reach the same conclusion. Instead,
the court must decide whether the prosecution has shown beyond a
reasonable doubt that the new evidence, if disclosed and developed
by reasonably competent counsel, would not have affected the
outcome of trial. [
Footnote
2/7]
Page 473 U. S. 708
In this case, it is readily apparent that the undisclosed
information would have had an impact on the defense presented at
trial, and perhaps on the judgment. Counsel for Bagley argued to
the trial judge that the Government's two key witnesses had
fabricated their accounts of the drug distributions, but the trial
judge rejected the argument for lack of any evidence of motive.
See supra at
473 U. S. 690.
These key witnesses, it turned out, were each to receive monetary
rewards whose size was contingent on the usefulness of their
assistance. These rewards "served only to strengthen any incentive
to testify falsely in order to secure a conviction."
Ante
at
473 U. S. 683.
To my mind, no more need be said; this nondisclosure
Page 473 U. S. 709
could not have been harmless. I would affirm the judgment of the
Court of Appeals.
[
Footnote 2/1]
As early as 1807, this Court made clear that, prior to trial, a
defendant must have access to impeachment evidence in the
Government's possession. Addressing defendant Aaron Burr's claim
that he should have access to the letter of General Wilkinson, a
key witness against Burr in his trial for treason, Chief Justice
Marshall wrote:
"The application of that letter to the case is shown by the
terms in which the communication was made. It is a statement of the
conduct of the accused made by the person who is declared to be the
essential witness against him. The order for producing this letter
is opposed:"
"First, because it is not material to the defense. It is a
principle, universally acknowledged, that a party has a right to
oppose to the testimony of any witness against him, the
declarations which that witness has made at other times on the same
subject. If he possesses this right, he must bring forward proof of
those declarations. This proof must be obtained before he knows
positively what the witness will say; for if he waits until the
witness has been heard at the trial, it is too late to meet him
with his former declarations. Those former declarations, therefore,
constitute a mass of testimony, which a party has a right to obtain
by way of precaution, and the positive necessity of which can only
be decided at the trial."
United States v. Burr, 25 F. Cas. 30, 36 (No. 14,692d)
(CC Va. 1807).
[
Footnote 2/2]
See Fortas, The Fifth Amendment: Nemo Tenetur Prodere
Seipsum, 25 Clev.B.A.J. 91, 98 (1954) ("The state and [the
defendant] could meet, as the law contemplates, in adversary trial,
as equals -- strength against strength, resource against resource,
argument against argument");
see also Babcock, Fair Play:
Evidence Favorable to an Accused and Effective Assistance of
Counsel, 34 Stan.L.Rev. 1133, 1142-1145 (1982) (discussing
challenge
Brady poses to traditional adversary model).
[
Footnote 2/3]
Indeed, this Court's recent decision stating a stringent
standard for demonstrating ineffective assistance of counsel makes
an effective
Brady right even more crucial. Without a real
guarantee of effective counsel, the relative abilities of the state
and the defendant become even more skewed, and the need for a
minimal guarantee of access to potentially favorable information
becomes significantly greater.
See Strickland v.
Washington, 466 U. S. 668
(1984);
id. at
466 U. S.
712-715 (MARSHALL, J., dissenting); Babcock,
supra, at 1163-1174 (discussing the interplay between the
right to
Brady material and the right to effective
assistance of counsel).
[
Footnote 2/4]
See Newman, 44 F.R.D. at 499 (describing the "serious"
problem of witness intimidation that arises from prosecutor's
disclosure of witnesses).
But see Brennan, The Criminal
Prosecution: Sporting Event or Quest for Truth?, 1963 Wash.U.L.Q.
279, 289-290 (disputing a similar argument).
[
Footnote 2/5]
Brady not only stated the rule that suppression by the
prosecution of evidence favorable to the defendant "violates due
process where the evidence is material either to guilt or to
punishment," 373 U.S. at
373 U. S. 87,
but also observed that two decisions of the Court of Appeals for
the Third Circuit "state the correct constitutional rule."
Id. at
373 U. S. 86.
Neither of those decisions limited the right only to evidence that
is "material" within the meaning that the Court today articulates.
Instead, they provide strong evidence that
Brady might
have used the word in its evidentiary sense, to mean, essentially,
germane to the points at issue.
In
United States ex rel. Almeida v. Baldi, 195 F.2d 815
(CA3 1952),
cert. denied, 345 U.S. 904 (1953), the appeals
court granted a petition for habeas corpus in a case in which the
State had withheld from the defendant evidence that might have
mitigated his punishment. After describing the withheld evidence as
"relevant" and "pertinent," 195 F.2d at 819, the court
concluded:
"We think that the conduct of the Commonwealth as outlined in
the instant case is in conflict with our fundamental principles of
liberty and justice. The suppression of evidence favorable to
Almeida was a denial of due process."
Id. at 820. Similarly, in
United States ex rel.
Thompson v. Dye, 221 F.2d 763, 765 (CA3),
cert.
denied, 350 U.S. 875 (1955), the District Court had denied a
petition for habeas corpus after finding that certain evidence of
defendant's drunkenness at the time of the offense in question was
not "vital" to the defense, and did not require disclosure. 123 F.
Supp. 759, 762 (WD Pa.1954). The Court of Appeals reversed,
observing that, whether or not the jury ultimately would credit the
evidence at issue, the evidence was substantial, and the State's
failure to disclose it cannot "be held as a matter of law to be
unimportant to the defense here." 221 F.2d at 767.
It is clear that the term "material" has an evidentiary meaning
quite distinct from that which the Court attributes to it. Judge
Weinstein, for example, defines as synonymous the words "ultimate
fact," "operative fact," "material fact," and "consequential fact,"
each of which, he states, means "a
fact that is of consequence
to the determination of the action.'" 1 J. Weinstein & M.
Berger, Weinstein's Evidence � 401[03], n. 1 (1982) (quoting
Fed.Rule Evid. 401). Similarly, another treatise on evidence
explains that there are two components to relevance -- materiality
and probative value.
"Materiality looks to the relation between the propositions for
which the evidence is offered and the issues in the case. If the
evidence is offered to help prove a proposition which is not a
matter in issue, the evidence is immaterial."
E. Cleary, McCormick on Evidence § 185 (3d ed.1984). "Probative
value" addresses the tendency of the evidence to establish a
"material" proposition.
Ibid. See also 1 J.
Wigmore, Evidence § 2 (P. Tillers rev.1982). There is nothing in
Brady to suggest that the Court intended anything other
than a rule that favorable evidence need only relate to a
proposition at issue in the case in order to merit disclosure.
Even if the Court did not use the term "material" simply to
refer to favorable evidence that might be relevant, however, I
still believe that due process requires that prosecutors have the
duty to disclose all such evidence. The inherent difficulty in
applying, prior to trial, a definition that relates to the outcome
of the trial, and that is based on speculation and not knowledge,
means that a considerable amount of potentially consequential
material might slip through the Court's standard. Given the
experience of the past decade with
Agurs, and the
practical problem that inevitably exists because the evidence must
be disclosed prior to trial to be of any use, I can only conclude
that all potentially favorable evidence must be disclosed. Of
course, I agree with courts that have allowed exceptions to this
rule on a showing of exigent circumstances based on security and
law enforcement needs.
[
Footnote 2/6]
In a case of deliberate prosecutorial misconduct, automatic
reversal might well be proper. Certain kinds of constitutional
error so infect the system of justice as to require reversal in all
cases, such as discrimination in jury selection.
See, e.g.,
Peters v. Kiff, 407 U. S. 493
(1972). A deliberate effort of the prosecutor to undermine the
search for truth clearly is in the category of offenses
antithetical to our most basic vision of the role of the state in
the criminal process.
[
Footnote 2/7]
For example, in
United States ex rel. Butler v.
Maroney, 319 F.2d 622 (CA3 1963), the defendant was convicted
of first-degree murder. Trial counsel based his defense on
temporary insanity at the time of the murder. During trial,
testimony suggested that the shooting might have been the
accidental result of a struggle, but defense counsel did not
develop that defense. It later turned out that an eyewitness to the
shooting had given police a statement that the victim and Butler
had struggled prior to the murder. If defense counsel had known
before trial what the eyewitness had seen, he might have relied on
an additional defense, and he might have emphasized the struggle.
See Note, The Prosecutor's Constitutional Duty to Reveal
Evidence to the Defendant, 74 Yale L.J. 136, 145 (1964). Unless the
same information already was known to counsel before trial, the
failure to disclose evidence of that kind simply cannot be
harmless, because reasonably competent counsel might have utilized
it to yield a different outcome. No matter how overwhelming the
evidence that Butler committed the murder, he had a right to go
before a trier of fact and present his best available defense.
Similarly, in
Ashley v. Texas, 319 F.2d 80 (CA5),
cert. denied, 375 U.S. 931 (1963), the defendant was
sentenced to death for murder. The prosecutor disclosed to the
defense a psychiatrist's report indicating that the defendant was
sane, but he failed to disclose the reports of a psychiatrist and a
psychologist indicating that the defendant was insane. The
nondisclosed information did not relate to the trial defense of
self-defense. But the failure to disclose the evidence clearly
prevented defense counsel from developing the possibly dispositive
defense that he might have developed through further psychiatric
examinations and presentation at trial. The nondisclosed evidence
obviously threw off the entire course of trial preparation, and a
new trial was in order. In such a case, there simply is no need to
consider -- in light of the evidence that actually was presented
and the quantity of evidence to support the verdict returned -- the
possible effect of the information on the particular jury that
heard the case. Indeed, to make such an evaluation would be to
substitute the reviewing court's judgment of the facts, including
the previously undisclosed evidence, for that of the jury, and to
do so without the benefit of competent counsel's development of the
information.
See also Field, Assessing the Harmlessness of Federal
Constitutional Error -- A Process in Need of a Rationale, 125
U.Pa.L.Rev. 15 (1976) (discussing application of harmless error
test).
JUSTICE STEVENS, dissenting.
This case involves a straightforward application of the rule
announced in
Brady v. Maryland, 373 U. S.
83 (1963), a case involving nondisclosure of material
evidence by the prosecution in response to a specific request from
the defense. I agree that the Court of Appeals misdescribed that
rule,
see ante at
473 U. S. 674-678, but I respectfully dissent from the
Court's unwarranted decision to rewrite the rule itself.
As the Court correctly notes at the outset of its opinion,
ante at
473 U. S. 669,
the holding in
Brady was 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."
373 U.S. at
373 U. S. 87. We
noted in
United States v. Agurs, 427 U. S.
97,
427 U. S. 103
(1976), that the rule of
Brady arguably might apply in
three different situations involving the discovery, after trial, of
evidence that had been known prior to trial to the prosecution but
not to the defense. Our holding in
Agurs was that the
Brady rule applies in two of the situations, but not in
the third.
The two situations in which the rule applies are those
demonstrating the prosecution's knowing use of perjured testimony,
exemplified by
Mooney v. Holohan, 294 U.
S. 103 (1935), and the prosecution's suppression of
favorable evidence specifically requested by the defendant,
exemplified by
Brady itself. In both situations, the
prosecution's deliberate nondisclosure constitutes constitutional
error -- the conviction must be set aside if the suppressed or
perjured evidence was "material" and there was "any reasonable
likelihood" that it "could have affected" the outcome of the trial.
427 U.S. at
427 U. S. 103.
[
Footnote 3/1]
See Brady,
supra, at
373 U. S. 88
("would tend to exculpate");
Page 473 U. S. 710
accord, United States v. Valenzuela-Bernal,
458 U. S. 858,
458 U. S. 874
(1982) ("reasonable likelihood");
Giglio v. United States,
405 U. S. 150,
405 U. S. 154
(1972) ("reasonable likelihood");
Napue v. Illinois,
360 U. S. 264,
360 U. S. 272
(1959) ("may have had an effect on the outcome"). The combination
of willful prosecutorial suppression of evidence and, "more
importantly," the potential "corruption of the truth-seeking
function of the trial process" requires that result. 427 U.S. at
427 U. S. 104,
427 U. S. 106.
[
Footnote 3/2]
In
Brady, the suppressed confession was inadmissible as
to guilt and "could not have affected the outcome" on that issue.
427 U.S. at
427 U. S. 106.
However, the evidence "could have affected Brady's punishment," and
was, therefore, "material on the latter issue, but not on the
former."
Ibid. Materiality
Page 473 U. S. 711
was thus used to describe admissible evidence that "could have
affected" a dispositive issue in the trial.
The question in
Agurs was whether the
Brady
rule should be
extended to cover a case in which there had
been neither perjury nor a specific request -- that is, whether the
prosecution has some constitutional duty to search its files and
disclose automatically, or in response to a general request, all
evidence that "might have helped the defense, or might have
affected the outcome." 427 U.S. at
427 U. S. 110.
[
Footnote 3/3] Such evidence would,
of course, be covered by the
Brady formulation if it were
specifically requested. We noted in
Agurs, however, that,
because there had been no specific defense request for the
later-discovered evidence, there was no notice to the prosecution
that the defense did not already have that evidence or that it
considered the evidence to be of particular value. 427 U.S. at
427 U. S.
106-107. Consequently, we stated that, in the absence of
a request, the prosecution has a constitutional duty to volunteer
only "obviously exculpatory . . . evidence."
Id. at
427 U. S. 107.
Because this constitutional duty to disclose is
different
from the duty described in
Brady, it is not surprising
that we developed a different standard of materiality in the
Agurs context. Necessarily describing the "inevitably
imprecise" standard in terms appropriate to post-trial review, we
held that no constitutional violation occurs in the absence of a
specific request unless "the omitted evidence creates a reasonable
doubt that did not otherwise exist."
Id. at
427 U. S. 108,
427 U. S. 112.
[
Footnote 3/4]
Page 473 U. S. 712
What the Court ignores with regard to
Agurs is that its
analysis was restricted entirely to the general, or no-request,
context. [
Footnote 3/5] The
"standard of materiality" we fashioned for the purpose of
determining whether a prosecutor's failure to volunteer exculpatory
evidence amounted to constitutional error was and is unnecessary
with regard to the two categories of prosecutorial suppression
already covered by the
Brady rule. The specific situation
in
Agurs, as well as the circumstances of
United
States v. Valenzuela-Bernal, 458 U. S. 858
(1982) and
Strickland v. Washington, 466 U.
S. 668 (1984), simply falls "outside the
Brady
context."
Ante at
473 U. S. 681.
But the
Brady rule itself unquestionably applies to
this case, because the Government failed to disclose favorable
evidence that was clearly responsive to the defendant's
specific
Page 473 U. S. 713
request. Bagley's conviction therefore must be set aside if the
suppressed evidence was "material" -- and it obviously was,
see 473
U.S. 667fn3/1|>n. 1,
supra -- and if there is "any
reasonable likelihood" that it could have affected the judgment of
the trier of fact. Our choice, therefore, should be merely whether
to affirm for the reasons stated in
473 U. S. or
to remand to the Court of Appeals for further review under the
standard stated in
Brady. I would follow the latter
course, not because I disagree with JUSTICE MARSHALL's analysis of
the record, but because I do not believe this Court should perform
the task of reviewing trial transcripts in the first instance.
See United States v. Hasting, 461 U.
S. 499,
461 U. S.
516-517 (1983) (STEVENS, J., concurring in judgment). I
am confident that the Court of Appeals would reach the appropriate
result if it applied the proper standard.
The Court, however, today sets out a reformulation of the
Brady rule in which I have no such confidence. Even though
the prosecution suppressed evidence that was specifically
requested, apparently the Court of Appeals may now reverse only if
there is a "reasonable probability" that the suppressed evidence
"would" have altered "the result of the [trial]."
Ante at
473 U. S. 682,
473 U. S. 684.
According to the Court, this single rule is "sufficiently flexible"
to cover specific as well as general or no-request instances of
nondisclosure,
ante at
473 U. S. 682,
because, at least in the view of JUSTICE BLACKMUN and JUSTICE
O'CONNOR, a reviewing court can "consider directly" under this
standard the more threatening effect that nondisclosure in response
to a specific defense request will generally have on the
truthseeking function of the adversary process.
Ante at
473 U. S. 683
(opinion of BLACKMUN, J.). [
Footnote
3/6]
Page 473 U. S. 714
I cannot agree. The Court's approach stretches the concept of
"materiality" beyond any recognizable scope, transforming it from
merely an evidentiary concept as used in
Brady and
Agurs, which required that material evidence be admissible
and probative of guilt or innocence in the context of a specific
request, into a result-focused standard that seems to include an
independent weight in favor of affirming convictions despite
evidentiary suppression. Evidence favorable to an accused and
relevant to the dispositive issue of guilt apparently may still be
found not "material," and hence suppressible by prosecutors prior
to trial, unless there is a reasonable probability that its use
would result in an acquittal. JUSTICE MARSHALL rightly criticizes
the incentives such a standard creates for prosecutors "to gamble,
to play the odds, and to take a chance that evidence will later
turn out not to have been potentially dispositive."
Ante
at
473 U. S.
701.
Moreover, the Court's analysis reduces the significance of
deliberate prosecutorial suppression of potentially exculpatory
evidence to that merely of one of numerous factors that "may" be
considered by a reviewing court.
Ante at
473 U. S. 683
(opinion of BLACKMUN, J.). This is not faithful to our statement in
Agurs that "[w]hen the prosecutor receives a specific and
relevant request, the failure to make any response is seldom, if
ever, excusable." 427 U.S. at
427 U. S. 106.
Such suppression is far more serious than mere nondisclosure of
evidence in which the defense has expressed no particular interest.
A reviewing court should attach great significance to silence in
the face of a specific request, when responsive evidence is later
shown to have been in the Government's possession. Such silence
actively misleads in the same way as would an affirmative
representation that exculpatory evidence does not exist when, in
fact, it does (
i.e., perjury) -- indeed, the two
situations are aptly described as "sides of a single coin."
Babcock, Fair Play: Evidence Favorable to
Page 473 U. S. 715
an Accused and Effective Assistance of Counsel, 34 Stan.L.Rev.
1133, 1151 (1982).
Accordingly, although the judgment of the Court of Appeals
should be vacated and the case should be remanded for further
proceedings, I disagree with the Court's statement of the correct
standard to be applied. I therefore respectfully dissent from the
judgment that the case be remanded for determination under the
Court's new standard.
[
Footnote 3/1]
I do not agree with the Court's reference to the "constitutional
error,
if any, in this case,"
see ante at
473 U.S. 678 (emphasis
added), because I believe a violation of the
Brady rule is
by definition constitutional error.
Cf. United States
v. Agurs, 427 U.S. at
427 U. S. 112 (rejecting rule making "every
nondisclosure . . . automatic error" outside the
Brady
specific request or perjury contexts). As written, the
Brady rule states that the Due Process Clause is violated
when favorable evidence is not turned over "upon request" and "the
evidence is material either to guilt or punishment."
Brady v.
Maryland, 373 U.S. at
373 U. S. 87. As JUSTICE MARSHALL's explication of the
record in this case demonstrates,
ante at
473 U. S.
685-692, the suppressed evidence here was not only
favorable to Bagley, but also unquestionably material to the issue
of his guilt or innocence. The two witnesses who had signed the
undisclosed "Contract[s] for Purchase of Information" were the only
trial witnesses as to the two distribution counts on which Bagley
was convicted. On cross-examination, defense counsel attempted to
undercut the witnesses' credibility, obviously a central issue, but
had little factual basis for so doing. When defense counsel
suggested a lack of credibility during final argument in the bench
trial, the trial judge demurred, because
"I really did not get the impression at all that either one or
both of these men were trying, at least in court here, to make a
case against the defendant."
A finding that evidence showing that the witnesses, in fact, had
a "direct, personal stake in respondent's conviction,"
ante at
473 U. S. 683,
was nevertheless not "material" would be egregiously erroneous
under any standard.
[
Footnote 3/2]
"A prosecution that withholds evidence on demand of an accused
which, if made available, would tend to exculpate him or reduce the
penalty helps shape a trial that bears heavily on the defendant.
That casts the prosecutor in the role of an architect of a
proceeding that does not comport with standards of justice. . .
."
Brady, supra, at
373 U. S.
87-88.
[
Footnote 3/3]
"[W]e 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. . . . "
"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."
427 U.S. at
427 U. S.
107.
[
Footnote 3/4]
"The proper standard of materiality must reflect our overriding
concern with the justice of the finding of guilt. 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."
Id. at
427 U. S. 112
(footnote omitted).
We also held in
Agurs that, when no request for
particular information is made, post-trial determination of whether
a failure voluntarily to disclose exculpatory evidence amounts to
constitutional error depends on the "character of the evidence, not
the character of the prosecutor."
Id. at
427 U. S. 110.
Nevertheless, implicitly acknowledging the broad discretion that
trial and appellate courts must have to ensure fairness in this
area, we noted that "the prudent prosecutor will resolve doubtful
questions in favor of disclosure."
Id. at
427 U. S. 108.
Finally, we noted that the post-trial determination of reasonable
doubt will vary even in the no-request context, depending on all
the circumstances of each case. For example,
"if the verdict is already of questionable validity, additional
evidence of relatively minor importance might be sufficient to
create a reasonable doubt."
Id. at
427 U. S.
113.
[
Footnote 3/5]
See ante at
473 U.S.
678 ("Our starting point is the framework for evaluating the
materiality of
Brady evidence established in
United
States v. Agurs");
ante at
473 U. S. 681
(referring generally to "the
Agurs standard for the
materiality of undisclosed evidence");
ante at
473 U. S. 700
(MARSHALL, J., dissenting) (describing
Agurs as stating a
general rule that "there is no constitutional duty to disclose
evidence unless nondisclosure would have a certain impact on the
trial").
But see Babcock, Fair Play: Evidence Favorable to
an Accused and Effective Assistance of Counsel, 34 Stan.L.Rev.
1133, 1148 (1982) (
Agurs "distinguished" between
no-request situations and the other two
Brady contexts
"where a pro-defense standard . . . would continue").
[
Footnote 3/6]
I of course agree with JUSTICE BLACKMUN,
ante at
473 U. S.
679-680, n. 9, and
473 U. S. 684,
and JUSTICE MARSHALL,
ante at
473 U. S. 706,
that our long line of precedents establishing the "reasonable
likelihood" standard for use of perjured testimony remains intact.
I also note that the Court plainly envisions that reversal of
Bagley's conviction would be possible on remand even under the new
standard formulated today for specific-request cases.
See
ante at
473 U. S.
684.