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.