Withholding Favorable Evidence

The Supreme Court held in Brady v. Maryland that prosecutors have an “affirmative duty” to disclose all evidence that is favorable to the defense and material to guilt and/or punishment. Under Brady and related Supreme Court cases, prosecutors must reveal all evidence that could be used to support a defendant’s case, including information that could undermine the credibility of prosecution witnesses. Brady violations also extend to evidence hidden by the police, because that evidence is considered to be in the control of the government.

The prosecution has an affirmative duty to correct the false testimony of its witnesses and to provide information about incentives for state witnesses’ testimony. Even if a state witness responds falsely to a question asked by the defense or the court, prosecutors cannot stand idly by. Due process requires prosecutors to promptly correct such testimony. Prosecutors must also disclose all deals offered to witnesses in exchange for their testimony. Knowledge of these deals is essential to the defense as they can be used to question the witnesses’ credibility.

There are significant challenges to defendants discovering and obtaining relief based on prosecutors’ withholding of favorable evidence. The evidence can be difficult to discover because it may never be released by the prosecution. Even when hidden evidence comes to light, courts have significant discretion in determining whether the disclosure of the evidence would have changed the outcome of the case. This means that even when a court finds that the prosecution hid favorable evidence, it may not reverse the case.

Examples of individuals affected by the withholding of favorable evidence:

Joe D’Ambrosio was sentenced to death in Cuyahoga County, Ohio in 1989. Decades later, litigation and community advocacy led to the discovery that the prosecution withheld multiple pieces of evidence including physical evidence that could have been tested, a motive for a prosecution witness to have committed the murder, and witness statements about the date of the murder and who committed it. A federal district court barred the state from retrying D’Ambrosio, writing:

For 20 years, the State held D’Ambrosio on death row, despite wrongfully withholding evidence that ‘would have substantially increased a reasonable juror’s doubt of D’Ambrosio’s guilt.’ Despite being ordered to do so by this Court … the State still failed to turn over all relevant and material evidence relating to the crime of which D’Ambrosio was convicted. Then, once it was ordered to provide D’Ambrosio a constitutional trial or release him within 180 days, the State did neither. During those 180 days, the State engaged in substantial inequitable conduct, wrongfully retaining and delaying the production of yet more potentially exculpatory evidence… To fail to bar retrial in such extraordinary circumstances surely would fail to serve the interests of justice.

D’Ambrosio was exonerated in 2012 after 23 years on Ohio’s death row.

Roderick Johnson was sentenced to death in Berks County, Pennsylvania in 1997. Johnson spent 23 years on Pennsylvania’s death row before being exonerated in 2020. The prosecutor in Johnson’s case, Mark Baldwin, suppressed police records documenting a witness’ uncharged criminal activity and his cooperation with police. Baldwin then lied to the court when the trial judge said “I think he’s a dealer of drugs or a paid informant by the Reading Bureau of Police,” calling the judge’s statement “absurd.” In denying retrial, Judge Eleni Geishauer of the Berks County Court of Common Pleas in Pennsylvania castigated Baldwin, writing,

[h]ad these acts been committed by a witness, the individual could have been, and in all likelihood would have been, charged with obstruction of justice. Had these acts been committed by defense counsel, in addition to charges, a disciplinary action would have been initiated that would potentially result in the suspension or loss of legal license. Mr. Baldwin’s position as District Attorney seems to have protected him from such censure. But in this matter, all men are equal before the law and this court renders judgment of Mr. Baldwin’s egregious behavior.

Shirley Jo Phillips was sentenced to death in Greene County, Missouri in 1992. The Supreme Court of Missouri overturned Phillips’ death sentence because the prosecutors withheld a taped interview in which a witness reported to police that Phillips’ son admitted to participating in the murder. According to the witness, Phillips’ son dismembered the victim’s body. The jury largely relied on the fact that Phillips dismembered the body when deciding that Phillips should get the death penalty. The Supreme Court of Missouri ruled that the interview was exculpatory and, while not changing the outcome of the guilt phase, could have changed the outcome of the penalty phase. Phillips was later resentenced to life without parole.