![]() For example, evidence that the lead FBI agent in a case was disciplined for violating FBI rules may be a type of Giglio evidence. Giglio evidence is a species of Brady evidence, and refers to evidence that impeaches prosecution witnesses, as opposed to proving the defendant’s innocence. Thus, it is generally up to the defense attorney to carefully review any discovery production to make sure that no favorable evidence is overlooked.įederal prosecutors also sometimes draw a distinction between what it calls Brady evidence, and what it calls Giglio evidence. Unfortunately, there is no rule requiring prosecutors to specifically identify Brady information. For example, when a prosecutor sends your attorney a disc, a USB hard-drive, or other medium containing a large volume of apparently incriminating information, some favorable evidence may be (and probably is) buried among the unfavorable evidence. It is rare, however, that a prosecutor will specifically identify any document or piece of evidence in the discovery as Brady material. In federal criminal cases, prosecutors tend to comply with Brady by including favorable evidence among its discovery productions made pursuant to Rule 16 of the Federal Rules of Criminal Procedure. Ogden, sometimes called the “Ogden” memo, that specifically outlines the steps that prosecutors should take to comply with Brady. One example is a famous memorandum issued by Deputy David W. Sometimes, the Attorney General’s Office also issues guidance memorandums to line attorneys about Brady. The Department of Justice, for example, has a section devoted to Brady compliance in the United States Attorney’s Manual. However, in the federal system, and in most state prosecutor’s offices, there will be written manuals or guidelines that set forth what prosecutors must do to comply with Brady. Courts enforce the Brady rule by ordering the prosecutor to disclose certain evidence, or vacating convictions when a Brady violation is established after a trial. There is no set procedure governing how prosecutors must comply with the Brady rule. How does a prosecutor comply with the Brady rule? Finally, the suppressed evidence or information must have been material, meaning that there’s a reasonable probability that, if the evidence or information had been turned over to the defense, the outcome of the case would have been different (e.g., the jury would have acquitted the defendant). It could be something that directly proves the defendant’s innocence, or it could be information that leads to the discovery of evidence. Second, the suppressed evidence or information must have been favorable, meaning that it would have been helpful for the defense. First, the prosecution must have suppressed evidence or information, meaning that something was not turned over to the defense. ![]() There are three components to establishing a Brady violation. Consequences of a Brady violation can include having a conviction vacated, as well as disciplinary actions against the prosecutor. When a prosecutor fails to do so, he or she has committed a Brady violation. In subsequent cases, the Supreme Court clarified and expanded upon the Brady rule, requiring prosecutors to turn over not only evidence that directly exonerates a defendant, but also any evidence that damages the prosecution’s case-such as evidence impeaching a prosecution witness, or information that could lead to the discovery of such evidence. In Brady, the Supreme Court held that the due process clause under the Constitution requires the prosecution to turn over all exculpatory evidence-i.e., evidence favorable to the defendant. In this blog post, we will explain what the Brady rule is, how it functions, and some important limitations on the Brady rule that make the rule less powerful than it seems (or should be). An important exception to this adversarial model is the Brady rule, named after the Supreme Court case Brady v. This means that each side bears primary responsibility for finding and presenting evidence supporting its arguments, while a neutral arbiter-such as a judge or a jury, decides between those competing versions of facts (or law). Criminal cases in the United States follow, for the most part, an adversarial model.
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