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Criminal Defense Blog

What is Brady Material? What Happens if Brady is Violated?

Posted by Ryan Brown | May 25, 2019 | 0 Comments

The term "Brady" comes from a Supreme Court case back in the 1960s out of Maryland. In that case, the supreme court ruled that when the government withholds evidence that is material to the guilt or innocence of the defendant after it has been requested, that the defendant's due process rights have been violated. 

Criminal defense attorneys routinely file Brady motions requesting any evidence that is material to the guilt or innocence of their client and prosecutors routinely comply. 

How Can a Defendant Prove that a Prosecutor Violated Brady?

Defendants prevail in Brady claims when they show that prosecutors withheld or suppressed evidence that is favorable to the accused. This can be a willful act by the prosecutors or simply an oversight, it does not matter. Further, the evidence may have gone to show that it is more likely the defendant is innocent, or it could be evidence that helps impeach the Government's case. 

Four Factors Used to Prevail on Brady Claim

To win, the defendant needs to prove four factors. Those are:

  1. The State possessed evidence favorable to the Defense. 
  2. The accused did not possess the evidence and could not have obtained it through reasonable diligence. 
  3. The state suppressed favorable evidence. 
  4. A reasonable probability exists that the disclosure of the evidence would have altered the outcome of the case. 

One fundamental problem in our justice system (with no easy solution) is that prosecutors act as the screener of what is favorable to the defense and what is not. Every day prosecutors get to make that determination without oversight and without any checks all while having no idea what the theory of the defense is going to be. 

What Happens if Brady is Violated?

The effect of a Brady violation differs depending on what the procedural posture of the case is. It may be discovered during the trial, or it could be after the trial is over and the case is up on appeal. 

Brady Violations During Trial

When a Brady violation is discovered, and proven, during the course of a trial, then the judge will grant a mistrial. This is the scenario that played out in Carroll County Superior Court this week where a former Georgia State Trooper was on trial for a car crash that cost the lives of two young girls. 

In that trial, the defense moved for a mistrial based, in part, on a Brady violation. Following the defense's motion, the court found that prosecutors had withheld evidence and that that violated the defendant's right to a fair trial and granted the mistrial. The judge wrote, "This behavior is inconsistent with our American legal heritage" and that, "I believe that no person's Constitutional rights should be violated in the United States anytime, under any circumstances."

In response, District Attorney Herb Cranford told Gradick Communications (Gradick's story is here) that he disagreed with the Chief Judge's legal analysis and plans to retry the defendant. 

The defendant may be re-tried now that the evidence favorable to the defendant has been turned over to his lawyers. 

Brady Violations After Trial

When a Brady violation occurs after trial, then defense lawyers will attack the issue on appeal. The standards remain the same, but the effects are slightly different. 

In the above example, the defendant will remain out on bond while the prosecutors decide whether to retry the defendant or not. If, however, you win this issue on appeal, then the appellate court will vacate the sentence and require that you be tried again. Unfortunately, however, the defendant has likely already done time in prison. 

About the Author

Ryan Brown

Ryan Brown has always hated bullies. Growing up, Ryan took on bullies, fighting for those who needed his help. His parents always told him, "Never start a fight, but always defend yourself." When a prosecutor brings charges against you, they have picked a legal fight. You must defend yourself. P...


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