Brady Violations: When the Prosecution Hides Evidence

What Is a Brady Violation?

In Brady v. Maryland, 373 U.S. 83 (1963), the U.S. Supreme Court held that the due process clause of the Fourteenth Amendment requires prosecutors to disclose evidence that is favorable to the accused and material to guilt or punishment. A failure to do so — intentional or not — is called a Brady violation.

Brady violations undermine the fairness of criminal trials. They can be grounds for reversal of a conviction, even years after the fact.

Three Elements of a Brady Claim

To prevail on a Brady claim, you must establish three things:

1. Suppression: The prosecution (or police acting for it) possessed the evidence and failed to disclose it before or during trial.

2. Favorability: The evidence was either exculpatory (tends to prove innocence) or impeaching (undermines the credibility of a prosecution witness).

3. Materiality: There is a reasonable probability that, had the evidence been disclosed, the outcome of the proceeding would have been different.

The materiality standard is not "more likely than not." A "reasonable probability" exists when suppression "undermines confidence in the outcome."

Types of Brady Material

Brady material includes:

Brady and Giglio

Brady covers all favorable evidence. Giglio v. United States, 405 U.S. 150 (1972) extended Brady specifically to evidence affecting the credibility of government witnesses. If an informant received leniency in exchange for testimony and the jury never knew, that is a Giglio violation.

Discovering a Brady Violation

Brady violations often come to light after conviction. Common discovery methods include:

What Happens When You Prove a Brady Violation?

If you establish a Brady violation post-conviction, you are entitled to a new trial. The court vacates the conviction and remands for retrial. Depending on how significant the suppressed evidence was, the prosecution may decide not to retry you.

In cases of intentional suppression, prosecutorial misconduct claims may also be pursued — though courts rarely grant relief based on bad faith alone when materiality is the standard.

Raising Brady in Post-Conviction Proceedings

Brady claims are among the most powerful tools in post-conviction litigation because they are based on newly discovered information — evidence you could not have raised at trial. Courts generally allow Brady claims even when raised for the first time in post-conviction proceedings, as long as you can show you exercised due diligence and the evidence was not available earlier.

At Libre Litigation Inc., we conduct thorough factual investigations in every post-conviction case to identify potential Brady material. Contact us if you believe the prosecution withheld favorable evidence.