Brady violation in Virginia

2026See, e.g., Bly v. Commonwealth, 280 Va. 656, 664 (2010) (remanding “for a new trial” in light of Brady violation); Workman v. Commonwealth, 272 Va. 633, 651 (2006) (ordering “a new trial because of Brady violations”).

2024Importantly, for purposes of a Brady analysis, “materiality is not a sufficiency of the evidence test.” Workman, 272 Va. at 645 .

2013“In determining the question of materiality, we consider the suppressed evidence as a whole, not item by item and if a Brady violation is established, we do not engage in a harmless error review.” Id. 3 The suppression by the prosecution of evidence favorable to the defendant “violates due process where the evidence is material either to guilt or to punishment, irrespective of the good 3 Judge Beales’ dissent ignores this approach as well as the definition of Brady materiality as recited in Kyles v. Whitley, 514 U.S. 419, 434 (1995).

2013“In determining the question of materiality, we consider the suppressed evidence as a whole, not item by item and if a Brady violation is established, we do not engage in a harmless error review.” Id. 3 The suppression by the prosecution of evidence favorable to the defendant “violates due process where the evidence is material either to guilt or to punishment, irrespective of the good 3 Judge Beales’ dissent ignores this approach as well as the definition of Brady materiality as recited in Kyles v. Whitley, 514 U.S. 419, 434 (1995).

2024To constitute a Brady violation, however, “[t]he 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 -8- prejudice must have ensued.” Coley v. Commonwealth, 55 Va. App. 624, 631 (2010) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)).

2024To constitute a Brady violation, however, “[t]he 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 -8- prejudice must have ensued.” Coley v. Commonwealth, 55 Va. App. 624, 631 (2010) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)).

2024See Juniper v. Warden of Sussex I State Prison, 281 Va. 277, 281 (2011) (“Pursuant to Brady, there is no obligation to produce information known to the defense.”); Stockton v. Murray, 41 F.3d 920, 927 (4th Cir. 1994) (holding that the Brady rule “does not compel the disclosure of evidence available to the defendant from other sources, including diligent investigation by the defense”); United States v. Wilson, 901 F.2d 378, 381 (4th Cir. 1990) (“[W]here the exculpatory information is not only available to the defendant but also lies in a source where a reasonable defendant would have looked, a

2024See Juniper v. Warden of Sussex I State Prison, 281 Va. 277, 281 (2011) (“Pursuant to Brady, there is no obligation to produce information known to the defense.”); Stockton v. Murray, 41 F.3d 920, 927 (4th Cir. 1994) (holding that the Brady rule “does not compel the disclosure of evidence available to the defendant from other sources, including diligent investigation by the defense”); United States v. Wilson, 901 F.2d 378, 381 (4th Cir. 1990) (“[W]here the exculpatory information is not only available to the defendant but also lies in a source where a reasonable defendant would have looked, a

2013“In determining the question of materiality, we consider the suppressed evidence as a whole, not item by item and if a Brady violation is established, we do not engage in a harmless error review.” Id. 3 The suppression by the prosecution of evidence favorable to the defendant “violates due process where the evidence is material either to guilt or to punishment, irrespective of the good 3 Judge Beales’ dissent ignores this approach as well as the definition of Brady materiality as recited in Kyles v. Whitley, 514 U.S. 419, 434 (1995).

2013“In determining the question of materiality, we consider the suppressed evidence as a whole, not item by item and if a Brady violation is established, we do not engage in a harmless error review.” Id. 3 The suppression by the prosecution of evidence favorable to the defendant “violates due process where the evidence is material either to guilt or to punishment, irrespective of the good 3 Judge Beales’ dissent ignores this approach as well as the definition of Brady materiality as recited in Kyles v. Whitley, 514 U.S. 419, 434 (1995).

2024“The mere possibility that an item of undisclosed information might have helped the defense[] or . . . affected the outcome of the 9 In light of this Court’s duty “to decide cases ‘on the best and narrowest ground available,’ we offer no opinion on” the other two components of the Brady analysis because “[t]he absence of prejudice, by itself, defeats [the appellant’s] claim and renders all other issues analytically superfluous.” Deville v. Commonwealth, 47 Va. App. 754, 758 (2006) (citation omitted) (quoting Logan v. Commonwealth, 47 Va. App. 168 , 171 n.3 (2005) (en banc)). - 17 - trial[] doe

2024“The mere possibility that an item of undisclosed information might have helped the defense[] or . . . affected the outcome of the 9 In light of this Court’s duty “to decide cases ‘on the best and narrowest ground available,’ we offer no opinion on” the other two components of the Brady analysis because “[t]he absence of prejudice, by itself, defeats [the appellant’s] claim and renders all other issues analytically superfluous.” Deville v. Commonwealth, 47 Va. App. 754, 758 (2006) (citation omitted) (quoting Logan v. Commonwealth, 47 Va. App. 168 , 171 n.3 (2005) (en banc)). - 17 - trial[] doe

2022“The more limited purpose of the Brady rule is ‘to assure that [the defendant] will not be denied access to exculpatory [or impeachment] evidence known to the government but unknown to him.’” Id. (alterations and emphases in original) (quoting Lugo v. Munoz, 682 F.2d 7, 10 (1st Cir. 1982)).

2022“The more limited purpose of the Brady rule is ‘to assure that [the defendant] will not be denied access to exculpatory [or impeachment] evidence known to the government but unknown to him.’” Id. (alterations and emphases in original) (quoting Lugo v. Munoz, 682 F.2d 7, 10 (1st Cir. 1982)).

2025To establish a Brady violation, a - 11 - defendant must prove that: the evidence was favorable to him; the Commonwealth failed to disclose it, either inadvertently or purposefully; and that the evidence was material—that is, “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Id. (quoting Church v. Commonwealth, 71 Va. App. 107 , 117 (2019)).

2025To establish a Brady violation, a - 11 - defendant must prove that: the evidence was favorable to him; the Commonwealth failed to disclose it, either inadvertently or purposefully; and that the evidence was material—that is, “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Id. (quoting Church v. Commonwealth, 71 Va. App. 107 , 117 (2019)).

2026“The accused has the burden of establishing each of these three components to prevail on a Brady claim.” Church v. Commonwealth, 71 Va. App. 107 , 117 (2019) (quoting Mercer, 66 Va. App. at 146 ).

2026“The accused has the burden of establishing each of these three components to prevail on a Brady claim.” Church v. Commonwealth, 71 Va. App. 107 , 117 (2019) (quoting Mercer, 66 Va. App. at 146 ).

2024“The mere possibility that an item of undisclosed information might have helped the defense[] or . . . affected the outcome of the 9 In light of this Court’s duty “to decide cases ‘on the best and narrowest ground available,’ we offer no opinion on” the other two components of the Brady analysis because “[t]he absence of prejudice, by itself, defeats [the appellant’s] claim and renders all other issues analytically superfluous.” Deville v. Commonwealth, 47 Va. App. 754, 758 (2006) (citation omitted) (quoting Logan v. Commonwealth, 47 Va. App. 168 , 171 n.3 (2005) (en banc)). - 17 - trial[] doe

2024“The mere possibility that an item of undisclosed information might have helped the defense[] or . . . affected the outcome of the 9 In light of this Court’s duty “to decide cases ‘on the best and narrowest ground available,’ we offer no opinion on” the other two components of the Brady analysis because “[t]he absence of prejudice, by itself, defeats [the appellant’s] claim and renders all other issues analytically superfluous.” Deville v. Commonwealth, 47 Va. App. 754, 758 (2006) (citation omitted) (quoting Logan v. Commonwealth, 47 Va. App. 168 , 171 n.3 (2005) (en banc)). - 17 - trial[] doe

2008Non-disclosure of evidence to the defense violates *113 the Brady rule when the evidence is “(1) either directly exculpatory or [has] impeachment value, (2) suppressed by the government, and (3) material.” Lockhart v. Commonwealth, 34 Va.App. 329, 345 , 542 S.E.2d 1, 8 (2001).

2008Non-disclosure of evidence to the defense violates *113 the Brady rule when the evidence is “(1) either directly exculpatory or [has] impeachment value, (2) suppressed by the government, and (3) material.” Lockhart v. Commonwealth, 34 Va.App. 329, 345 , 542 S.E.2d 1, 8 (2001).

2019“A Brady violation occurs when the government fails to disclose evidence materially favorable to the accused.” Youngblood v. West Virginia, 547 U.S. 867, 869 (2006).

2019“A Brady violation occurs when the government fails to disclose evidence materially favorable to the accused.” Youngblood v. West Virginia, 547 U.S. 867, 869 (2006).

2024Brady Violation When a Brady claim is reviewed on appeal, “the burden is on appellant to show that the trial court erred.” Gagelonia v. Commonwealth, 52 Va. App. 99, 112 (2008) (quoting Galbraith - 11 - v. Commonwealth, 18 Va. App. 734, 739 (1994)).

2024Brady Violation When a Brady claim is reviewed on appeal, “the burden is on appellant to show that the trial court erred.” Gagelonia v. Commonwealth, 52 Va. App. 99, 112 (2008) (quoting Galbraith - 11 - v. Commonwealth, 18 Va. App. 734, 739 (1994)).

2026See, e.g., Bly v. Commonwealth, 280 Va. 656, 664 (2010) (remanding “for a new trial” in light of Brady violation); Workman v. Commonwealth, 272 Va. 633, 651 (2006) (ordering “a new trial because of Brady violations”).

2014“At the very least, the defendant must show that the challenged conduct violates commonly accepted norms of fundamental fairness and is shocking to the universal sense of justice.” Id. 22 See, e.g., Bly v. Commonwealth, 280 Va. 656, 664 , 702 S.E.2d 120, 124 (2010) (reversing and remanding “for a new trial”); Workman v. Commonwealth, 272 Va. 633, 651 , 636 S.E.2d 368, 378 (2006) (ordering “a new trial because of Brady violations”); Bowman v. Commonwealth, 248 Va. 130, 136 , 445 S.E.2d 110, 114 (1994) (“granting . . . a new trial” to remedy a Brady violation). - 27 - None of these concerns exis

2024To constitute a Brady violation, however, “[t]he 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 -8- prejudice must have ensued.” Coley v. Commonwealth, 55 Va. App. 624, 631 (2010) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)).

2024To constitute a Brady violation, however, “[t]he 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 -8- prejudice must have ensued.” Coley v. Commonwealth, 55 Va. App. 624, 631 (2010) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)).

2021Speculative allegations are not adequate.” Jones v. Commonwealth, 32 Va. App. 30, 45-46 (2000) (quoting Hughes v. Commonwealth, 18 Va. App. 510, 526 (1994) (en banc)); Lowe v. Commonwealth, 218 Va. 670, 679 (1977) (stating that “conjecture” is insufficient to establish a Brady violation).

2021Speculative allegations are not adequate.” Jones v. Commonwealth, 32 Va. App. 30, 45-46 (2000) (quoting Hughes v. Commonwealth, 18 Va. App. 510, 526 (1994) (en banc)); Lowe v. Commonwealth, 218 Va. 670, 679 (1977) (stating that “conjecture” is insufficient to establish a Brady violation).

2013See Lovitt v. Warden of Sussex I State Prison, 266 Va. 216, 245 , 585 S.E.2d 801, 818 (2003) (“A prosecutor’s suppression of impeachment evidence creates a due process violation only if the suppression deprives the defendant of a fair trial under the Brady standard of materiality.” (emphasis added) (citing Bagley, 473 U.S. at 678 ; McDowell v. Dixon, 858 F.2d 945, 949 (4th Cir. 1988))).

2013See Lovitt v. Warden of Sussex I State Prison, 266 Va. 216, 245 , 585 S.E.2d 801, 818 (2003) (“A prosecutor’s suppression of impeachment evidence creates a due process violation only if the suppression deprives the defendant of a fair trial under the Brady standard of materiality.” (emphasis added) (citing Bagley, 473 U.S. at 678 ; McDowell v. Dixon, 858 F.2d 945, 949 (4th Cir. 1988))).

2012See, e.g., United States v. Wilson, 901 F.2d 378, 381 (4th Cir. 1990) (noting that, “where the exculpatory information is not only available to the defendant but also lies in a source where a reasonable defendant would have looked, a defendant is not entitled to the benefit of the Brady doctrine”); United States v. Grossman, 843 F.2d 78, 85 (2d Cir. 1988) (finding no Brady violation when the defendant “knew or should have known the essential facts permitting him to take advantage of any exculpatory evidence”); United States v. Davis, 787 F.2d 1501, 1505 (11th Cir. 1986) (stating “the Brady rul

2012See, e.g., United States v. Wilson, 901 F.2d 378, 381 (4th Cir. 1990) (noting that, “where the exculpatory information is not only available to the defendant but also lies in a source where a reasonable defendant would have looked, a defendant is not entitled to the benefit of the Brady doctrine”); United States v. Grossman, 843 F.2d 78, 85 (2d Cir. 1988) (finding no Brady violation when the defendant “knew or should have known the essential facts permitting him to take advantage of any exculpatory evidence”); United States v. Davis, 787 F.2d 1501, 1505 (11th Cir. 1986) (stating “the Brady rul

2023See Walker v. Kelly, 589 F.3d 127, 140 (4th Cir. 2009).

2023See Walker v. Kelly, 589 F.3d 127, 140 (4th Cir. 2009).

2013“A Brady violation occurs when the government fails to disclose evidence materially favorable to the accused.” “There are three components of a true Brady violation: The evidence at issue must -7- 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.” Garnett v. Commonwealth, 49 Va. App. 524, 529-30 , 642 S.E.2d 782, 785 (2007) (en banc) (citations omitted), aff’d, 275 Va. 397 , 657 S.E.2d 100 (2008). “‘[T]he question is not whether the

2013“A Brady violation occurs when the government fails to disclose evidence materially favorable to the accused.” “There are three components of a true Brady violation: The evidence at issue must -7- 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.” Garnett v. Commonwealth, 49 Va. App. 524, 529-30 , 642 S.E.2d 782, 785 (2007) (en banc) (citations omitted), aff’d, 275 Va. 397 , 657 S.E.2d 100 (2008). “‘[T]he question is not whether the

2016Favorability The second prong of the Brady test requires that the evidence be “favorable to the accused, either because it is exculpatory, or because it is impeaching.” Id. (quoting Skinner v. 3 In appeals alleging a Brady violation, an appellant bears “the burden . . . to show that the trial court erred.” Gagelonia v. Commonwealth, 52 Va. App. 99, 112 , 661 S.E.2d 502, 509 (2008) (quoting Galbraith v. Commonwealth, 18 Va. App. 734, 739 , 446 S.E.2d 633, 637 (1994)). -5- Switzer, 562 U.S. 521 , 536 (2011)).

2016Favorability The second prong of the Brady test requires that the evidence be “favorable to the accused, either because it is exculpatory, or because it is impeaching.” Id. (quoting Skinner v. 3 In appeals alleging a Brady violation, an appellant bears “the burden . . . to show that the trial court erred.” Gagelonia v. Commonwealth, 52 Va. App. 99, 112 , 661 S.E.2d 502, 509 (2008) (quoting Galbraith v. Commonwealth, 18 Va. App. 734, 739 , 446 S.E.2d 633, 637 (1994)). -5- Switzer, 562 U.S. 521 , 536 (2011)).

2013Darwin, 757 F.2d at 1201 (emphasis added and citations omitted), quoted in part by Read, 233 Va. at 564-65 , 357 S.E.2d at 546-47 ; see also United States v. Davis, 306 F.3d 398, 421 (6th Cir. 2002) (holding disclosure of impeachment material during trial, when witnesses were subject to recall, satisfied Brady). 12 12 See also United States v. Mangual-Garcia, 505 F.3d 1, 5-6 (1st Cir. 2007); United States v. Delgado, 350 F.3d 520, 527 (6th Cir. 2003); United States v. Kime, 99 F.3d 870, 882 (8th Cir. 1996); United States v. Catano, 65 F.3d 219, 227 (1st Cir. 1995); United States v. Gordon, 844

2013Darwin, 757 F.2d at 1201 (emphasis added and citations omitted), quoted in part by Read, 233 Va. at 564-65 , 357 S.E.2d at 546-47 ; see also United States v. Davis, 306 F.3d 398, 421 (6th Cir. 2002) (holding disclosure of impeachment material during trial, when witnesses were subject to recall, satisfied Brady). 12 12 See also United States v. Mangual-Garcia, 505 F.3d 1, 5-6 (1st Cir. 2007); United States v. Delgado, 350 F.3d 520, 527 (6th Cir. 2003); United States v. Kime, 99 F.3d 870, 882 (8th Cir. 1996); United States v. Catano, 65 F.3d 219, 227 (1st Cir. 1995); United States v. Gordon, 844

2013Brady, 373 U.S. at 86-87 ; see also Youngblood v. West Virginia, 547 U.S. 867, 869 (2006); Garnett v. Commonwealth, 275 Va. 397, 406 , 657 S.E.2d 100, 106 (2008). “‘There are three components of a true Brady violation: The evidence at 1 Because we conclude the contested evidence was exculpatory and material as to the complaining witness, we need not decide whether the evidence was also exculpatory and material as to the other witnesses.

2013Brady, 373 U.S. at 86-87 ; see also Youngblood v. West Virginia, 547 U.S. 867, 869 (2006); Garnett v. Commonwealth, 275 Va. 397, 406 , 657 S.E.2d 100, 106 (2008). “‘There are three components of a true Brady violation: The evidence at 1 Because we conclude the contested evidence was exculpatory and material as to the complaining witness, we need not decide whether the evidence was also exculpatory and material as to the other witnesses.

2021See Moreno, 10 Va. App. at 415 (stating that “[b]ias as a form of impeachment . . . falls within the Brady requirement to disclose”).

2009Assuming without deciding the repair records and testing logs for Intoxilyzer 2253 and Intoxilyzer 1538 were exculpatory evidence, we conclude there was no Brady violation, because appellant was “ab[le] to utilize th[at] evidence at trial.” See Moreno, 10 Va. App. at 417 , 392 S.E.2d at 842 .

2014“At the very least, the defendant must show that the challenged conduct violates commonly accepted norms of fundamental fairness and is shocking to the universal sense of justice.” Id. 22 See, e.g., Bly v. Commonwealth, 280 Va. 656, 664 , 702 S.E.2d 120, 124 (2010) (reversing and remanding “for a new trial”); Workman v. Commonwealth, 272 Va. 633, 651 , 636 S.E.2d 368, 378 (2006) (ordering “a new trial because of Brady violations”); Bowman v. Commonwealth, 248 Va. 130, 136 , 445 S.E.2d 110, 114 (1994) (“granting . . . a new trial” to remedy a Brady violation). - 27 - None of these concerns exis

2014“At the very least, the defendant must show that the challenged conduct violates commonly accepted norms of fundamental fairness and is shocking to the universal sense of justice.” Id. 22 See, e.g., Bly v. Commonwealth, 280 Va. 656, 664 , 702 S.E.2d 120, 124 (2010) (reversing and remanding “for a new trial”); Workman v. Commonwealth, 272 Va. 633, 651 , 636 S.E.2d 368, 378 (2006) (ordering “a new trial because of Brady violations”); Bowman v. Commonwealth, 248 Va. 130, 136 , 445 S.E.2d 110, 114 (1994) (“granting . . . a new trial” to remedy a Brady violation). - 27 - None of these concerns exis

2024Evidence is “material” under Brady if “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Tuma, 285 Va. at 634-35 (quoting Smith v. Cain, 565 U.S. 73, 75 (2012)).

2024Evidence is “material” under Brady if “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Tuma, 285 Va. at 634-35 (quoting Smith v. Cain, 565 U.S. 73, 75 (2012)).

2023Just as under Brady, if the Commonwealth knowingly fails to correct false testimony, then the conviction “must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Teleguz v. Commonwealth, 273 Va. 458, 492 (2007) (quoting Agurs, 427 U.S. at 103 ).

2023Just as under Brady, if the Commonwealth knowingly fails to correct false testimony, then the conviction “must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Teleguz v. Commonwealth, 273 Va. 458, 492 (2007) (quoting Agurs, 427 U.S. at 103 ).

2016The “limited purpose of the Brady rule is ‘“to assure that [the defendant] will not be denied access to exculpatory [or impeachment] evidence known to the government but unknown to him.”’” Id. (quoting Lugo v. Munoz, 682 F.2d 7, 10 (1st Cir. 1982)).

2016The “limited purpose of the Brady rule is ‘“to assure that [the defendant] will not be denied access to exculpatory [or impeachment] evidence known to the government but unknown to him.”’” Id. (quoting Lugo v. Munoz, 682 F.2d 7, 10 (1st Cir. 1982)).

2009Though “a defendant does not have a general constitutional right to discovery in a criminal case,” the prosecutor “is required to provide a defendant with exculpatory evidence, including evidence which impeaches the credibility of a prosecution witness.” Goins v. Commonwealth, 251 Va. 442, 456 , 470 S.E.2d 114, 124 (1996). “‘In order for a defendant to establish a Brady violation, he must demonstrate that the undisclosed evidence was exculpatory and material either to the issue of guilt or to the issue of punishment.’” Id. (quoting United States v. Agurs, 427 U.S. 97, 109-10 (1976)). “‘Exculpa

2009Though “a defendant does not have a general constitutional right to discovery in a criminal case,” the prosecutor “is required to provide a defendant with exculpatory evidence, including evidence which impeaches the credibility of a prosecution witness.” Goins v. Commonwealth, 251 Va. 442, 456 , 470 S.E.2d 114, 124 (1996). “‘In order for a defendant to establish a Brady violation, he must demonstrate that the undisclosed evidence was exculpatory and material either to the issue of guilt or to the issue of punishment.’” Id. (quoting United States v. Agurs, 427 U.S. 97, 109-10 (1976)). “‘Exculpa

2021Speculative allegations are not adequate.” Jones v. Commonwealth, 32 Va. App. 30, 45-46 (2000) (quoting Hughes v. Commonwealth, 18 Va. App. 510, 526 (1994) (en banc)); Lowe v. Commonwealth, 218 Va. 670, 679 (1977) (stating that “conjecture” is insufficient to establish a Brady violation).

2021Speculative allegations are not adequate.” Jones v. Commonwealth, 32 Va. App. 30, 45-46 (2000) (quoting Hughes v. Commonwealth, 18 Va. App. 510, 526 (1994) (en banc)); Lowe v. Commonwealth, 218 Va. 670, 679 (1977) (stating that “conjecture” is insufficient to establish a Brady violation).