FAQ – Obtaining Exculpatory Evidence From The Prosecution in Criminal Cases

What is exculpatory evidence?

The United States Supreme Court has held that exculpatory evidence is any evidence that is favorable to the defendant on issues of guilt or punishment. Exculpatory evidence is also sometimes called “Bradyevidence” or “Bradymaterial,” a name that comes from the Court’s decision in Brady v. Maryland.

Does the defendant have a right to exculpatory evidence from the prosecution?

Under Brady v. Maryland, prosecutors have a duty to hand over exculpatory evidence to the defendant. This duty exists even without any request from the defendant.  However, a specific request for exculpatory evidence can be beneficial for a number of reasons, and it is thus common for defense attorneys to send what are called Bradyletters to the prosecution.

What does exculpatory evidence look like?

Exculpatory evidence can take many different forms.  We will provide some examples here just to give you an idea.

Evidence that negates guilt.  This is the most basic type of exculpatory evidence.  For example, if the defendant, a tall man with short hair, is charged with bank robbery, and the video of the robbery shows that the perpetrator is in fact a short female with long hair, the video would be exculpatory because it negates the defendant’s guilt.

Evidence that negates an element of the crime.  Closely related to evidence that negates guilt is evidence negates an element of the offense.  For example, if the defendant is charged with mail fraud, one of the elements that the prosecution must prove is a use of the mail to execute the scheme.  If there is evidence that the defendant did not use mail, but instead used email to carry out the scheme, that fact would negate an element of mail fraud, and would have to be disclosed to the defense.

Evidence that impeaches a prosecution witnesses.  Impeachment evidence is simply a fancy way of saying any information that can be used to attack the credibility of a prosecution witness.  These kinds of evidence are also called “Giglio” information, named after the Supreme Court case Giglio v. United States.  Examples of such information include: (1) a promise by the prosecutor to not prosecute a witness in exchange for his or her testimony; (2) any payments from the prosecution to the witness; (3) any information about the witness’ drug use, including legal drugs that can influence the witness’ perception or memory; (4) any instances of the witness lying in the past.

Evidence that mitigates punishment.  A fourth category of exculpatory evidence is information that would tend mitigate the defendant’s punishment in the event of conviction. This is a broad category of information that can take many forms. The following are just some non-exclusive examples of what can be evidence that mitigates punishment: (1) evidence that the defendant played only a minor role in the offense; (2) evidence or information that the defendant is a first time offender; or (3) evidence or information that the defendant was responsible for a lower quantity of loss, contraband, or other relevant metric used for sentencing.

Do prosecutors actually turn over exculpatory evidence?

In our experience, the vast majority of prosecutors take their Brady obligations (which are also ethical obligations) seriously, and when they come across a piece of exculpatory evidence they will turn it over.  Unfortunately, this does not translate into the vast majority of defendants getting all exculpatory evidence all the time.  Here is why:

Prosecutors are advocates and will look at cases from the perspective of guilt. They are not thinking about—let alone looking for—all of the types of evidence that would weaken their case.  This inherent bias means that sometimes exculpatory evidence that is not immediately obvious will be overlooked.

On top of this, prosecutors tend to be very busy.  They have multiple cases and investigations going on at one time.  Often, they will not be familiar with all of the evidence and materials they have gathered until sometime close to trial, leaving the preliminary review of materials to agents. As a result, prosecutors will sometimes turn over helpful evidence at the last minute, depriving the defense of the opportunity to use that evidence in the most effective way.

Unfortunately, there are also some instances, although rare, in which prosecutors do not play by the rules. One of these instances occurred in the case of Senator Ted Stevens, in which the government withheld exculpatory evidence, as discussed in Judge Emmet Sullivan’s Opinion.

How do I get the evidence that helps me?

You and your attorney should not simply count on the prosecutor to turn over exculpatory evidence. Instead, it is up to you and your lawyer to be proactive about getting any and all favorable evidence.

What does this mean?

Let’s cover the easiest scenario first: helpful evidence that you know exists.  Initially, you will be the most knowledgeable person about your case.  So, pass that knowledge on to your attorney.  For example, there may be helpful documents on that computer that the government seized from you.  Or, that key witness for the government may be a well-known crook that no one would ever trust.  Tell your lawyer!  A skilled white collar defense attorney will know what steps to take in order to get that evidence, and to use that evidence effectively.

But how about a situation where you don’t know what helpful evidence might be out there?  This is where it is crucial to have an experienced, creative and thorough lawyer representing you.  An effective lawyer will do the following to ensure you get all of the helpful evidence that you are entitled to in your case:

Conduct an independent investigation.  This may be hard to believe, but prosecutors and agents are not out there looking for all of the facts and evidence that will help your case and hurt theirs.  That is your lawyer’s job, and it will include things like interviewing witnesses, obtaining documents (through subpoena or other means), and hiring experts if necessary.  Investigation will often reveal helpful information, or expose weaknesses in the government’s case.  Sometimes, it will reveal entire categories of helpful evidence that no one knew existed.

Thoroughly review the evidence (or discovery) provided by the prosecution. Often, the materials turned over by the prosecutors show that other favorable evidence exists.  An experienced criminal defense lawyer, looking at the discovery with a critical eye, can often find clues about the existence of helpful information that has not been turned over.

Prepare detailed requests for exculpatory information. It may seem obvious that if you want helpful evidence, then you should ask for it.  But this simple rule is overlooked, too often, by attorneys. Requesting exculpatory evidence, in a way that is clear but sufficiently detailed, is very important.  There are a couple of reasons for this.  First, prosecutors who get a direct request for a specific document or a specific type of evidence are much less likely to brush it off.  If the evidence exists and they have it, but fail to turn it over, they are risking more than just the case.  Similarly, courts tend to take it a lot more seriously when a piece of evidence that has been specifically requested by the defense is not turned over.  This can result in sanctions—some form of penalty during the trial, up to and including a dismissal of the charges.  On appeal, it can mean reversal of a conviction.

In sum, there is no substitute for having an experienced and aggressive defense attorney, who will do all that is necessary to make sure you get evidence favorable to your case—whether at trial or at sentencing.

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