Split Widened: Must Evidence Be Admissible To Constitute Brady Material?

Per Johnson v. Folino (3d Cir. Jan. 16, 2013)

The standard of review governing alleged Brady violations is fairly well settled.  A new trial (or habeas) will be granted only if (1) the state suppressed (2) material evidence (3) favorable to the accused.

The split at issue here concerns the second factor, i.e., how to determine if the suppressed evidence is material.  Suppressed evidence is material if there is a reasonable probability of a different result if the evidence been disclosed. 

The CA4 holds, as a matter of law, that inadmissible evidence can never be material.  Other circuits--the CAs 1,2,6,11 and now 3--hold that while inadmissibility is a factor weighing against materiality, it is not a per se bar.

To be honest, the existence of this split surprised me.  The majority school is simply correct.  While inadmissibility is a factor (and perhaps a strong one) indicating that the supressed evidence could not have affected the trial, it is not outcome-determinative.  For example, inadmissible evidence may later become admissible for purposes of impeachment, or may lead to the discovery of additional, and admissible, evidence by altering case-preparation strategies.  And even if none of these events come to pass, the inadmissible evidence may at least alter case-presentation strategy, such as by inviting the jury to consider a theory that is plausible even though not supported by any (admissible) evidence.  

Thus, the CA4 is simply wrong.  Even the case it relies on goes beyond noting inadmissibility to show that the defense attorney would not have prepared any differently had the suppressed evidence been disclosed.

More generally, my Brady concern focuses mostly on the third factor--favorable to the accused.  I am baffled by the issue of how a prosecutor is supposed to determine what is, and what is not, favorable.

Consider, for example, the sentencing of a drug dealer.  Most prosecutors would think a former co-conspirator's admission regarding drug weight to be prejudicial.  Yet, in one of my cases, we successfully used this evidence to mitigate our defendant's personal responsibility and obtain a variance.  Nonetheless, had the prosecutor in that case not followed an open-file policy, he almost certainly would not have viewed the material as being subject to a Brady disclosure obligation.

My general line of work civil tort defense.  I am consistently surprised by the ability of most plaintiffs lawyers to turn any fact, no matter how harmful on its face, into an apparent strength.  Criminal defense attorneys often display the same adaptability.  Yet a strict interpretation of favorability would limit such adaptation.  Thus, I fall on the side of favoring open-file prosecutions in the interests of justice.