Brady violation in District of Columbia

2026However, “[a]ppellants have the burden of proving a Brady violation.” Id. (citing Mackabee v. United States, 29 A.3d 952, 959 (D.C. 2011)).

2026However, “[a]ppellants have the burden of proving a Brady violation.” Id. (citing Mackabee v. United States, 29 A.3d 952, 959 (D.C. 2011)).

2021As the Supreme Court observed in Strickler v. Greene, 527 U.S. 263 (1999), “strictly speaking, there is never a real ‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict,” i.e., unless the non-disclosed evidence 16 was material.

2015However, a Brady violation can be “inadvertent.” See Strickler, 527 U.S. at 281-82 , 119 S.Ct. 1936 .

2025“Rather, a defendant demonstrates a Brady violation ‘by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’” Id. (quoting Kyles, 514 U.S. at 435 ); see Vaughn, 93 A.3d at 1262 .

2025“Rather, a defendant demonstrates a Brady violation ‘by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’” Id. (quoting Kyles, 514 U.S. at 435 ); see Vaughn, 93 A.3d at 1262 .

2018“The Brady principle does not imply the government‟s duty to investigate — and come to know — information which the defendant would like to have but the government does not possess.” Id. (internal brackets omitted) (quoting Lewis v. United States, 393 A.2d 109, 115 (D.C. 1978)).

2018"The Brady principle does not imply the government's duty to investigate-and come to know-information which the defendant would like to have but the government does not possess." Id. (internal brackets omitted) (quoting Lewis v. United States , 393 A.2d 109 , 115 (D.C. 1978) ).

2026However, “[a]ppellants have the burden of proving a Brady violation.” Id. (citing Mackabee v. United States, 29 A.3d 952, 959 (D.C. 2011)).

2026However, “[a]ppellants have the burden of proving a Brady violation.” Id. (citing Mackabee v. United States, 29 A.3d 952, 959 (D.C. 2011)).

2011We agree with appellant (and the government does not dispute) that the description that Green gave of the perpetrator during his videotaped interview was exculpatory, but we cannot agree that the government’s delay in turning over the videotape amounted to a true Brady violation. 18 Suppression in the Brady sense would have occurred if the material was “not ‘disclos[ed] in sufficient time to afford the defense an opportunity for use.’ ” *960 United States v. Douglas, 525 F.3d 225, 245 (2d Cir.2008) {“Brady material that is not ‘disclos[ed] in sufficient time to afford the defense an opportunit

2011We agree with appellant (and the government does not dispute) that the description that Green gave of the perpetrator during his videotaped interview was exculpatory, but we cannot agree that the government’s delay in turning over the videotape amounted to a true Brady violation. 18 Suppression in the Brady sense would have occurred if the material was “not ‘disclos[ed] in sufficient time to afford the defense an opportunity for use.’ ” *960 United States v. Douglas, 525 F.3d 225, 245 (2d Cir.2008) {“Brady material that is not ‘disclos[ed] in sufficient time to afford the defense an opportunit

2023“If the government does not possess the requested information, there can be no Brady violation,” Bellinger, 127 A.3d at 521 (quoting Guest v. United States, 867 A.2d 208, 212 (D.C. 2005)), though the possession prong of Brady may be satisfied where the government is in constructive possession of the information and is willfully blind to it.

2018To establish a Brady violation, an appellant must first show that the information the government failed to produce was in its possession; "[i]f the government does not possess the requested information, there can be no Brady violation." Guest v. United States , 867 A.2d 208 , 212 (D.C. 2005).

2025John v. United States, 227 A.3d 141 , 146 (D.C. 2020) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). “‘[N]on-disclosure of evidence affecting credibility’ falls within the purview of the Brady rule.” Id. (quoting Giglio v. United States, 405 U.S. 150, 154 (1972)); see Andrews, 179 A.3d at 287 n.7 (“Favorability includes exculpatory and impeachment evidence.”).

2025John v. United States, 227 A.3d 141 , 146 (D.C. 2020) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). “‘[N]on-disclosure of evidence affecting credibility’ falls within the purview of the Brady rule.” Id. (quoting Giglio v. United States, 405 U.S. 150, 154 (1972)); see Andrews, 179 A.3d at 287 n.7 (“Favorability includes exculpatory and impeachment evidence.”).

2018It is the inculpatory evidence admitted at trial against which a court must consider the suppressed evidence in order to determine whether "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Miller , 14 A.3d at 1115 (quoting Bagley , 473 U.S. at 682 , 105 S.Ct. 3375 ). 13 Though the trial court improperly considered the actual use or non-use of the suppressed evidence by defense counsel as part of its Brady analysis, we are satisfied that such error was harmless as there is no reasonable probability t

2017Appellant, who “has the burden of proving a Brady violation,” id. has not “established that he was prevented from using the [Wesby disclosure] by resource limitations or the time pressures of trial.” Miller, 14 A.3d at 1131 .

2018“There is no Brady violation absent a showing of materiality, i.e.,” a showing “that the missing evidence „would have made a different result reasonably probable.‟” Id. (quoting Farley v. United States, 694 A.2d 887, 889 (D.C. 1997) (citations omitted)). 9 allowed “to have Your Honor sign an order of expungement should the [c]ourt go along the lines [counsel was] requesting.” The prosecutor said that the government would “rest largely” on its Memorandum in Aid of Sentencing, which — citing appellant‟s “substantial criminal history” and asserting that his conduct was “only getting more violent”

2018"There is no Brady violation absent a showing of materiality, i.e. ," a showing "that the missing evidence 'would have made a different result reasonably probable.' " Id. (quoting Farley v. United States , 694 A.2d 887 , 889 (D.C. 1997) (citations omitted) ).

2017Cir. 1994) (citing Agurs, 427 U.S. at 103 , 96 S.Ct. 2392 ); see also, e.g., Coleman v. Mitchell, 268 F.3d 417, 438 (6th Cir. 2001) (''The Brady rule does not assist a defendant who is aware of essential facts that would allow him to take advantage of the exculpatory evidence at issue.”); United States v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982) ("Evidence is not ‘suppressed’ if the defendant either knew, or should have known, of the essential facts permitting him to take advantage of any exculpatory evidence.

2017Cir. 1994) (citing Agurs, 427 U.S. at 103 , 96 S.Ct. 2392 ); see also, e.g., Coleman v. Mitchell, 268 F.3d 417, 438 (6th Cir. 2001) (''The Brady rule does not assist a defendant who is aware of essential facts that would allow him to take advantage of the exculpatory evidence at issue.”); United States v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982) ("Evidence is not ‘suppressed’ if the defendant either knew, or should have known, of the essential facts permitting him to take advantage of any exculpatory evidence.

2015As this court has repeatedly said, “a prosecutor’s timely disclosure obligation with respect to Brady material cannot be overemphasized and the practice of delayed production must be disapproved and discouraged.” Mackabee v. United States, 29 A.3d 952, 956 (D.C. 2011) (quoting Curry v. United States, 658 A.2d 193, 197 (D.C. 1995)). 25 There are three elements to a Brady violation: “(1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the [government], either willfully or inadver

2015As this court has repeatedly said, “a prosecutor’s timely disclosure obligation with respect to Brady material cannot be overemphasized and the practice of delayed production must be disapproved and discouraged.” Mackabee v. United States, 29 A.3d 952, 956 (D.C. 2011) (quoting Curry v. United States, 658 A.2d 193, 197 (D.C. 1995)). 25 There are three elements to a Brady violation: “(1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the [government], either willfully or inadver

2018The court, however, rejected dismissal or a mistrial because the defense had received the IAD report, and any prejudice from the delayed disclosure would be “mitigated by the fact that [Officer Williams] . . . hasn‟t testified, can be crossed, and the defense can make use of this [delayed disclosure] during the course of the trial.” Therefore, concluded the court, the “failure to disclose” would not be “outcome determinative here” (the result required for a Brady violation).8 The next day, after the court denied a motion the government had filed for reconsideration of its Brady ruling, defense

2018The court, however, rejected dismissal or a mistrial because the defense had received the IAD report, and any prejudice from the delayed disclosure would be “mitigated by the fact that [Officer Williams] . . . hasn‟t testified, can be crossed, and the defense can make use of this [delayed disclosure] during the course of the trial.” Therefore, concluded the court, the “failure to disclose” would not be “outcome determinative here” (the result required for a Brady violation).8 The next day, after the court denied a motion the government had filed for reconsideration of its Brady ruling, defense

2025John v. United States, 227 A.3d 141 , 146 (D.C. 2020) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). “‘[N]on-disclosure of evidence affecting credibility’ falls within the purview of the Brady rule.” Id. (quoting Giglio v. United States, 405 U.S. 150, 154 (1972)); see Andrews, 179 A.3d at 287 n.7 (“Favorability includes exculpatory and impeachment evidence.”).

2010“There are three components of a true Brady violation: the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-282 , 119 S.Ct. 1936 , 144 L.Ed.2d 286 (1999); see also Giglio v. United States, 405 U.S. 150, 153-54 , 92 S.Ct. 763 , 31 L.Ed.2d 104 (1972).

2026Similarly, in Boyd v. United States, three months after oral argument we sua sponte directed supplemental briefing on a Brady claim that appellant did not raise in his briefs, but oral argument apparently gave us some concerns about, and we then held another argument as to that claim and ultimately resolved it on its merits. 908 A.2d 39, 49 (D.C. 2006).

2026Similarly, in Boyd v. United States, three months after oral argument we sua sponte directed supplemental briefing on a Brady claim that appellant did not raise in his briefs, but oral argument apparently gave us some concerns about, and we then held another argument as to that claim and ultimately resolved it on its merits. 908 A.2d 39, 49 (D.C. 2006).

2014App. 1989) (observing that the Supreme Court‘s opinion in Agurs ―was a full-fledged explication of Brady,‖ which ―reaffirmed that ‗exculpatory‘ means ‗exculpatory‘ as it referred to the subject matter of Brady‘s duty to disclose as ‗evidence highly probative of innocence.‘‖); Downs v. Fla. Dep’t of Corr., 738 F.3d 240, 260 (11th Cir. 2013) (―[T]he existence of informants . . . constitutes Brady material only when the informant . . . would offer or lead to exculpatory or impeaching information favorable to the defendant.‖); United States v. Perdue, 8 F.3d 1455, 1461 (10th Cir. 1993) (explaining

2011We agree with appellant (and the government does not dispute) that the description that Green gave of the perpetrator during his videotaped interview was exculpatory, but we cannot agree that the government’s delay in turning over the videotape amounted to a true Brady violation. 18 Suppression in the Brady sense would have occurred if the material was “not ‘disclos[ed] in sufficient time to afford the defense an opportunity for use.’ ” *960 United States v. Douglas, 525 F.3d 225, 245 (2d Cir.2008) {“Brady material that is not ‘disclos[ed] in sufficient time to afford the defense an opportunit

2023Id. at 520 n.49; see also 16 Brooks, 966 F.2d at 1503 .

2015“If the government does not possess the requested information, there can be no Brady violation.”52 Brady “does not imply the government‟s duty to investigate—and come to know—information which the defendant would like to have but the government does not possess.” 53 50 (Anthony N.) Robinson v. United States, 825 A.2d 318, 328 (D.C. 2003) (quoting Kyles, 514 U.S. at 437 ). 51 United States v. Brooks, 966 F.2d 1500, 1503 (D.C.

2012“For there to be a true Brady violation: (1) the evidence at issue must be favorable to the accused either because it is exculpatory or because it is impeaching; (2) that evidence must have been suppressed by the [government], either willfully or inadvertently[;] and[ ] (3) prejudice must have ensued.” Fortson v. United States, 979 A.2d 643, 662 (D.C.2009) (alteration in original, internal quotation marks omitted).

2012“For there to be a true Brady violation: (1) the evidence at issue must be favorable to the accused either because it is exculpatory or because it is impeaching; (2) that evidence must have been suppressed by the [government], either willfully or inadvertently[;] and[ ] (3) prejudice must have ensued.” Fortson v. United States, 979 A.2d 643, 662 (D.C.2009) (alteration in original, internal quotation marks omitted).

2011See, e.g., United States v. Joseph, 996 F.2d 36, 39 (3rd Cir.1993) ("[W]hen a Brady violation is alleged issues of law and fact usually are presented.

2011See, e.g., United States v. Joseph, 996 F.2d 36, 39 (3rd Cir.1993) ("[W]hen a Brady violation is alleged issues of law and fact usually are presented.

2011The Nature of Our Inquiry When a Brady claim rests on delayed disclosure, courts, including this one, frequently resolve the issue by focusing on whether the delay was "material" or "prejudicial." See, e.g., James v. United States, 580 A.2d 636, 644 (D.C.1990) ("The issue here is . . . whether the timing of the government's disclosure . . . violated appellant's due process rights because the timing of the disclosure was `material' to the outcome."); Bellanger v. United States, 548 A.2d 501, 503 (D.C.1988) (denying Brady claim because "appellant has not demonstrated any prejudice by the delay i

2011The Nature of Our Inquiry When a Brady claim rests on delayed disclosure, courts, including this one, frequently resolve the issue by focusing on whether the delay was "material" or "prejudicial." See, e.g., James v. United States, 580 A.2d 636, 644 (D.C.1990) ("The issue here is . . . whether the timing of the government's disclosure . . . violated appellant's due process rights because the timing of the disclosure was `material' to the outcome."); Bellanger v. United States, 548 A.2d 501, 503 (D.C.1988) (denying Brady claim because "appellant has not demonstrated any prejudice by the delay i

2011See Guest v. United States, 867 A.2d 208, 212 (D.C.2005) (“[i]f the government does not possess the requested information, there can be no Brady violation”); Velasquez v. United States, 801 A.2d 72, 81 (D.C.2002) (“there is no due process violation since the records were not in the possession of the government”). 6 Rule 16 provides that, upon the request of the defendant, the government must “permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody

2007Hence, it is axiomatic that “[i]f the government does not possess the requested information, there can be no Brady violation.” Guest v. United States, 867 A.2d 208, 212 (D.C.2005) (citing Velasquez v. United States, 801 A.2d 72, 81 (D.C.2002)).

2011E.g., Wright v. United States, 979 A.2d 26, 31 (D.C.2009) (denying Brady claim because "the government did not suppress the materials or information on which appellant bases his claims”); Wiggins v. United States, 386 A.2d 1171, 1175 (D.C.1978) (Ferren, X, concurring) (“[W]e hold that the exculpatory evidence ... was not 'suppressed' within the meaning of Brady ... and its progeny-Thus, we do not reach the question whether there was reversible error under Brady for failure to produce ‘material’ evidence.”). 7.

2011Receiving no objection, the judge released Lindsey at the completion of testimony on Thursday. [4] E.g., Ingram v. United States, 976 A.2d 180, 193 (D.C.2009) (denying Brady claim because information was not exculpatory and thus not material). [5] E.g., Brooks v. United States, 396 A.2d 200, 203-04 (D.C.1978) (denying Brady claim, without deciding whether suppression had occurred, because defendant suffered no prejudice). [6] E.g., Wright v. United States, 979 A.2d 26, 31 (D.C.2009) (denying Brady claim because "the government did not suppress the materials or information on which appellant ba

2018“There is no Brady violation absent a showing of materiality, i.e.,” a showing “that the missing evidence „would have made a different result reasonably probable.‟” Id. (quoting Farley v. United States, 694 A.2d 887, 889 (D.C. 1997) (citations omitted)). 9 allowed “to have Your Honor sign an order of expungement should the [c]ourt go along the lines [counsel was] requesting.” The prosecutor said that the government would “rest largely” on its Memorandum in Aid of Sentencing, which — citing appellant‟s “substantial criminal history” and asserting that his conduct was “only getting more violent”

2018"There is no Brady violation absent a showing of materiality, i.e. ," a showing "that the missing evidence 'would have made a different result reasonably probable.' " Id. (quoting Farley v. United States , 694 A.2d 887 , 889 (D.C. 1997) (citations omitted) ).

2018See, e.g. , Perez , 968 A.2d at 72 (in assessing materiality of government's failure to disclose alleged false statements and immigration status of a witness, "[w]e defer[red] to the trial court's credibility determination" that the witness "did not fabricate her trial testimony ... to curry favor with the government in order to obtain help with her immigration status"). ( James ) Johnson , 398 A.2d at 366 .

2018See, e.g. , Perez , 968 A.2d at 72 (in assessing materiality of government's failure to disclose alleged false statements and immigration status of a witness, "[w]e defer[red] to the trial court's credibility determination" that the witness "did not fabricate her trial testimony ... to curry favor with the government in order to obtain help with her immigration status"). ( James ) Johnson , 398 A.2d at 366 .

2014A. Whether the Information Was Favorable The government’s sole argument on the question whether Officer Davis’s testimony about the discovery of Mr. Biles’s belongings was “favorable” for Brady purposes is that Mr. Biles did not sufficiently preserve his Brady claim, and that under the plain-error standard of review of United States v. Olano, 507 U.S. 725 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993), he cannot demonstrate that it is “clear” and “obvious” that Brady applies to suppression hearings. 2 The government does not argue that the late disclosure of information material to the outcome of a

2014A. Whether the Information Was Favorable The government’s sole argument on the question whether Officer Davis’s testimony about the discovery of Mr. Biles’s belongings was “favorable” for Brady purposes is that Mr. Biles did not sufficiently preserve his Brady claim, and that under the plain-error standard of review of United States v. Olano, 507 U.S. 725 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993), he cannot demonstrate that it is “clear” and “obvious” that Brady applies to suppression hearings. 2 The government does not argue that the late disclosure of information material to the outcome of a

2010We have said that where the trial court has determined that there is no Brady violation, as is the case here, “independent review is precluded” and the trial court’s decision should be affirmed if it was “reasonable.” Stewart v. United States, 881 A.2d 1100, 1117 (D.C.2006) (quoting Davies v. United States, 476 A.2d 658, 661 (D.C.1984)).

2001Id. at 661 . 5 Notwithstanding the rule in M.A.P. v. Ryan, 285 A.2d 310 (D.C.1971), we must conform our law to controlling Supreme Court precedent on constitutional matters. 6 Therefore, I turn to an independent review of the Brady issue presented by this appeal.

2018In its brief, the government supports the trial court‟s unique Brady analysis by citing to Mackabee and Cotton v. United States, 388 A.2d 865 (D.C. 1978).8 8 Specifically, the government argues “[e]vidence that information . . . would have had some effect on the proceeding . . . is a necessary factual predicate to the larger question of whether cognizable prejudice „ensued‟ from the government‟s failure to disclose the information.” Where a defendant “failed to show that disclosure would have had any effect, the question of cognizable prejudice simply does not arise.” The government avers that

2018In its brief, the government supports the trial court's unique Brady analysis by citing to Mackabee and Cotton v. United States , 388 A.2d 865 (D.C. 1978). 8 We fail to see how either of these cases supports the trial court's analysis here.