Brady Violation – 7 Common Examples of Hiding Evidence

7 common examples of a Brady violation in criminal trials are when a prosecutor fails to disclose to a criminal defendant (or a defense attorney):

1. evidence of a record or report that might suggest the defendant did not commit a crime (such as a law enforcement or police report),
2. the details of a deal (for example between a prosecutor and an informant or a witness),
3. physical evidence that questions a defendant’s guilt,
4. information that could be used to cast doubt on a witness’s truthfulness,
5. information that discredits a victim’s story,
6. evidence of police misconduct, and
7. proof that someone else committed the crime charged.

In general, a “Brady violation” occurs when a prosecutor fails to provide a defendant or criminal defense attorneys with any favorable or helpful evidence to a defendant’s case.

A prosecutor’s failure to provide this information is a violation of your constitutional rights and it could lead to:

• a reversal of a conviction,
• a dismissal of charges,
• a mistrial, and/or
• possible charges of prosecutorial misconduct.

1. Examples of Brady Violations

State and federal laws say that prosecutors might be guilty of committing a Brady violation if they fail to disclose:

1. certain reports that clear a defendant of a criminal act (like reports from police officers or experts),¹
2. details of a deal (for example, deals between federal prosecutors and government witnesses),²
3. physical evidence (like DNA or video footage) that suggests a defendant is not guilty of a crime,³
4. information that discredits a victim’s story or testimony,⁴
5. evidence of police misconduct,⁵
6. evidence that might show someone else committed the crime being charged,⁶ and
7. information that could be used as impeachment evidence against a witness.⁷

As to the last example, criminal laws say that “impeachment evidence” or “impeaching evidence” is evidence that could cast doubt on witness statements.

2. Brady Disclosures

A Brady disclosure is when prosecutors provide to the defense any evidence that is favorable to the defendant.

Prosecutors must make a Brady disclosure in criminal cases whenever a failure to do so would deny a defendant’s right to a fair trial.⁸

The U.S. Supreme Court mandated this disclosure in the case of Brady v. Maryland.⁹ The court said that the divulgence of favorable information is part of a defendant’s Due Process right under the Fifth Amendment to the U.S. Constitution.¹⁰

If there is evidence favorable to the accused, prosecutors typically fulfill their Brady obligations during the discovery phase of a criminal case. The evidence is provided after defense lawyers formally request such information.

3. Brady Motions

A Brady motion is a defendant’s request that the prosecution turn over any potentially

• exculpatory evidence, or
• evidence that may be favorable to the accused.

Criminal procedure laws say that defense counsel should file this motion whenever they believe prosecutors are withholding favorable evidence.

According to the Brady rule, prosecutors must comply with the motion whenever any evidence has a reasonable probability of showing that an accused did not commit the crime charged.¹¹

Note that these motions are formal legal motions held in the trial court that require a hearing involving the:

• judge presiding over the case,
• prosecutor, and
• defense attorney.

During the hearing, the defense asserts that the prosecution is withholding certain information, or Brady material, which shows that a defendant did not commit the crime in question. The district attorney then usually

• denies the assertion,
• or states that certain evidence is not material evidence, or
• that the evidence is actually favorable to an accused.

4. After a Brady Motion Is Granted

A judge either denies or grants a Brady motion. The outcome depends on the facts of the court case.

If prosecutors have sufficiently disclosed all evidence favorable to the defense, or if there is not any, then the judge will likely deny the motion.

If, however, a judge determines that a prosecutor has withheld evidence, then the judge will grant the motion. The granting of the motion could result in:

• a reversal of a conviction,
• a dismissal of charges,
• a mistrial, and/or
• possible charges of prosecutorial misconduct.

Additional reading

For more in-depth information, refer to these scholarly articles:

• A Solution to Brady Violations: Neutral Evidence Referees and Stricter Sanctions – Loyola Law Review.
• Legally Blind: Hyperadversarialism, Brady Violations, and the Prosecutorial Organizational Culture – St. John’s Law Review.
• Brady Violations: An in-Depth Look at Higher Standard Sanctions for a High-Standard Profession – Wyoming Law Review.
• Mapping the Path of Brady Violations: Typologies, Causes & Consequences in Erroneous Conviction Cases – Syracuse Law Review.
• Understanding the Significance & Complexity of the Brady Rule – Journal of Student Research.

Legal Citations

1. See Ex parte Mowbray, 943 S.W.2d 461 (1996).
2. See Phillips v. Ornoski, 673 F.3d 1168 (2012).
3. See Gonzales v. McKune, 247 F.3d 1066 (2001).
4. See O’Hara v. Brigano, 499 F.3d 492 (2007).
5. See Guerra v. Johnson, 90 F.3d 1075 (1996).
6. See Disimone v. Phillips, 461 F.3d 181 (2006).
7. See Gonzales v. Wong, 667 F.3d 965 (2011). See also U.S. v. Bagley, 473 U.S. 667 (1985).
8. United States v. Agurs, 427 U.S. 97 (1976). See also Kyles v. Whitley, 514 US 419 (1995).
9. Brady v. Maryland (1963), 373 U.S. 83; Parker v. Cnty. of Riverside, 78 F.4th 1109 (9th Cir. 2023).
10. See same. See also People v. Stewart, 55 Cal. App. 5th 755 (Cal.App. 2020).
11. Note that “reasonable probability” is an easier standard to meet than the “beyond a reasonable doubt” standard that prosecutors must meet when proving a crime.