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Due Process – Exculpatory Evidence – Generally

State v. Kevin Harris, 2004 WI 64, affirming as modified 2003 WI App 144, 266 Wis. 2d 200, 667 N.W.2d 813
For Harris: Steven A. Koch


¶12 In Brady, the United States Supreme 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 to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. The prosecutor has a duty to disclose this evidence although there has been no formal request by the accused. Strickler v. Greene, 527 U.S. 263, 280 (1999). Evidence is favorable to an accused, when, “if disclosed and used effectively, it may make the difference between conviction and acquittal.” United States v. Bagley, 473 U.S. 667, 676 (1985). Evidence that is favorable to the accused encompasses both exculpatory and impeachment evidence. Strickler, 527 U.S. at 281-82 (“The evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching”) (emphasis added); Bagley, 473 U.S. at 676 (“Impeachment evidence, however, as well as exculpatory evidence, falls within the Brady rule.”). The Court has indicated that there is no distinction between the two types of evidence that are “favorable to accused” for Brady purposes. Strickler, 527 U.S. at 280-82; Bagley, 473 U.S. at 676 (“This Court has rejected any such distinction between impeachment evidence and exculpatory evidence.”).¶13 In order to establish a Brady violation, the defendant must, in addition to demonstrating that the withheld evidence is favorable to him, prove that the withheld evidence is “material.” …

¶14 … “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.” Bagley, 473 U.S. at 682. … See also State v. DelReal, 225 Wis. 2d 565, 570-71, 593 N.W.2d 461 (Ct. App. 1999) (recognizing the Bagley formulation of the materiality requirement). …

¶15 The United States Supreme Court has summarized the three prerequisites for a Brady violation as follows: “The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler, 527 U.S. at 281-82. …

For a case critically distinguishing between after-the-fact and pre-trial analysis of materiality, see U.S. v. Carter, 2004 U.S. Dist. LEXIS 665 (E.D. Wis. 4/12/04): “This (Ritchie) standard was developed in the context of appellate consideration of the effect of non-disclosure … Specifically, the materiality prong presumes that the trial has already occurred … But a court deciding whether material should be disclosed prior to trial does not have the luxury of reviewing the trial record.” Consequently, “in the pretrial context, the court should require disclosure of favorable evidence under Brady and Giglio without attempting to analyze its ‘materiality’ at trial.… Therefore, the court should ordinarily require the pretrial disclosure of all exculpatory or impeachment evidence.”


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