What Is Meant by a Brady Violation ?
In Brady v. Maryland, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution". Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963).
The Brady rule applies even where defendant makes no formal request for Brady material. United States v. Agurs, 427 U.S. 97, 107, 96 S. Ct. 2392, 2399, 49 L. Ed. 2d 342, 351-52 (1976); State v. Martini, 160 N.J. 248, 268, 734 A.2d 257 (1999); State v. Knight, 145 N.J. 233, 245, 678 A.2d 642 (1996).
In order to establish a Brady violation, defendant must show that:
(1) the prosecution suppressed evidence;
(2) the evidence is favorable to the defense;
(3) the evidence is material Martini, supra, 160 N.J. at 268, 734 A.2d 257.
In determining whether evidence is sufficiently material to require its timely disclosure to defendant, the United States Supreme Court initially held that the standard for determining whether suppressed evidence is material depends on the specificity of defendant's initial request for the evidence in question. United States v. Agurs, supra, 427 U.S. at 104-12, 96 S. Ct. at 2398-2402, 49 L. Ed. 2d at 350-55 (1976).
In cases where a specific request was made, reversal was required if the suppressed evidence "might have affected the outcome of the trial". Id. at 104, 96 S. Ct. at 2398, 49 L. Ed. 2d at 350.
On the other hand, if only a general request had been made for Brady material or no request at all, reversal would only have been necessary if the non-disclosed evidence created a reasonable doubt that did not otherwise exist. Id. at 112, 96 S. Ct. at 2402, 49 L. Ed. 2d at 355.
However, the Court subsequently abandoned that distinction and held that regardless of the specificity of defendant's request, evidence is material for Brady purposes "if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different". United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985).
Stated another way, the question is whether in the absence of the undisclosed evidence did the defendant receive a fair trial which is understood as a trial resulting in a verdict worthy of confidence. Kyles v. Whitley, supra, 514 U.S. at 434, 115 S. Ct. at 1566, 131 L. Ed. 2d at 506.
Therefore, in order to establish a "reasonable probability" of a different result, defendant need not show that it is more likely than not that he would have received a different verdict with the disclosed evidence. Kyles, supra, at 434, 115 S. Ct. at 1566, 131 L. Ed. 2d at 506. Rather, a "reasonable probability" of a different result is shown when the suppression of the evidence undermines confidence in the outcome of the trial. Ibid.; Bagley, supra, 473 U.S. at 678, 105 S. Ct. at 3381, 87 L. Ed. 2d at 491; Martini, supra, 160 N.J. at 269, 734 A.2d 257.
It is unclear whether our Supreme Court will apply Bagley's unitary standard in all cases, or will apply Agurs' less demanding standard in cases where a specific request had been made.
In Martini, supra, 160 N.J. at 269, n.4, 734 A.2d 257, and Knight, supra, 145 N.J. at 247, 678 A.2d 642, the question was left open. However, in State v. Marshall, 148 N.J. 89, 156, 690 A.2d 1 (1997), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997), the Court applied the Bagley test to all of the State's non-disclosures, including those that related to documents that defendant had specifically requested before trial, observing that it perceived no state-law basis on which to depart from Bagley's unitary standard.
Indeed, the Court has observed that Bagley's unitary standard is simple to apply and "the differences in the standards may not be sufficiently substantial to justify retention of two different materiality tests". Knight, supra, 145 N.J. at 247, 678 A.2d 642.