Brady violation in Wisconsin

2026The jury convicted Millighan of first-degree sexual assault of a child—sexual contact.1 The circuit court sentenced him to 22 years of initial confinement and 10 years of extended supervision. ¶4 Millighan sought postconviction relief based on ten claims of ineffective assistance of trial counsel and a potential Brady issue.2 See Brady v. Maryland, 373 U.S. 83, 87 (1963).

2026The prosecutor provided those materials to Kienbaum. 2 Brady v. Maryland, 373 U.S. 83 (1963). 6 No. 2024AP1758 ¶16 At the postconviction hearing, Kienbaum argued the State committed another Brady violation by failing to turn over these materials earlier.

2024“A Brady violation has three components: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must be material.” Wayerski, 385 Wis. 2d 344, ¶35 (citing State v. Harris, 2004 WI 64, ¶15 , 272 Wis. 2d 80 , 680 6 No. 2023AP1258-CR N.W.2d 737, in turn citing Strickler v. Greene, 527 U.S. 263, 281-82 (1999)).

2024“A Brady violation has three components: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must be material.” Wayerski, 385 Wis. 2d 344, ¶35 (citing State v. Harris, 2004 WI 64, ¶15 , 272 Wis. 2d 80 , 680 6 No. 2023AP1258-CR N.W.2d 737, in turn citing Strickler v. Greene, 527 U.S. 263, 281-82 (1999)).

2026To establish a Brady violation, a defendant must show three components: “(1) the evidence at issue must be favorable to the accused, either because it is exculpatory or impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must be material.” State v. Wayerski, 2019 WI 11, ¶35 , 385 Wis. 2d 344 , 922 N.W.2d 468 . (citing State v. Harris, 2004 WI 64, ¶15 , 272 Wis. 2d 80 , 680 N.W.2d 737 ).

2026To establish a Brady violation, a defendant must show three components: “(1) the evidence at issue must be favorable to the accused, either because it is exculpatory or impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must be material.” State v. Wayerski, 2019 WI 11, ¶35 , 385 Wis. 2d 344 , 922 N.W.2d 468 . (citing State v. Harris, 2004 WI 64, ¶15 , 272 Wis. 2d 80 , 680 N.W.2d 737 ).

2026Evidence that impeaches or affects the credibility of a witness also “falls within this general [Brady] rule.” Giglio v. United States, 405 U.S. 150, 154 (1972). ¶20 Smith bears the burden of proving a Brady violation occurred.

2026Evidence that impeaches or affects the credibility of a witness also “falls within this general [Brady] rule.” Giglio v. United States, 405 U.S. 150, 154 (1972). ¶20 Smith bears the burden of proving a Brady violation occurred.

2019However, as the Court in Brady , the Court in Giglio did not define suppression or materiality, or further clarify the contours of the prosecution's duty to produce evidence under the Brady doctrine. ¶75 In Moore v. Illinois , 408 U.S. 786 , 795, 92 S.Ct. 2562 , 33 L.Ed.2d 706 (1972), the Court stated that there was "no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case." The Court confirmed this idea in United States v. Agurs , 427 U.S. 97 , 110 & n.16, 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976) (quoting

2019However, as the Court in Brady , the Court in Giglio did not define suppression or materiality, or further clarify the contours of the prosecution's duty to produce evidence under the Brady doctrine. ¶75 In Moore v. Illinois , 408 U.S. 786 , 795, 92 S.Ct. 2562 , 33 L.Ed.2d 706 (1972), the Court stated that there was "no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case." The Court confirmed this idea in United States v. Agurs , 427 U.S. 97 , 110 & n.16, 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976) (quoting

2026Because Smith fails to prove that the State suppressed the evidence he seeks under the second Brady component, and this conclusion is dispositive to our analysis, we reject 8 No. 2024AP288-CR Smith’s argument that a Brady violation occurred and that he is entitled to a new trial. ¶21 On appeal, as in his postconviction motion, Smith states that “[t]he State had an affirmative duty to disclose ALL Brady evidence.” As the State observes, Smith attempts to align his case with State v. Harris, 2004 WI 64 , 272 Wis. 2d 80 , 680 N.W.2d 737 , in which our supreme court held that the State violated Br

2026Because Smith fails to prove that the State suppressed the evidence he seeks under the second Brady component, and this conclusion is dispositive to our analysis, we reject 8 No. 2024AP288-CR Smith’s argument that a Brady violation occurred and that he is entitled to a new trial. ¶21 On appeal, as in his postconviction motion, Smith states that “[t]he State had an affirmative duty to disclose ALL Brady evidence.” As the State observes, Smith attempts to align his case with State v. Harris, 2004 WI 64 , 272 Wis. 2d 80 , 680 N.W.2d 737 , in which our supreme court held that the State violated Br

2019See Cone , 556 U.S. at 470 , 129 S.Ct. 1769 ("favorable evidence is subject to constitutionally mandated disclosure"); Banks , 540 U.S. at 693 , 124 S.Ct. 1256 (referring to "Brady disclosure obligations"); Kyles , 514 U.S. at 441 , 115 S.Ct. 1555 ("disclosure of the suppressed evidence to competent counsel would have made a different result reasonably probable"); Strickler , 527 U.S. at 281 , 119 S.Ct. 1936 (" 'Brady violation' is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence"); U.S. v. Agurs , 427 U.S. 97 , 108, 96 S.Ct. 2392 , 49 L.Ed.2d 342

2019See Cone , 556 U.S. at 470 , 129 S.Ct. 1769 ("favorable evidence is subject to constitutionally mandated disclosure"); Banks , 540 U.S. at 693 , 124 S.Ct. 1256 (referring to "Brady disclosure obligations"); Kyles , 514 U.S. at 441 , 115 S.Ct. 1555 ("disclosure of the suppressed evidence to competent counsel would have made a different result reasonably probable"); Strickler , 527 U.S. at 281 , 119 S.Ct. 1936 (" 'Brady violation' is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence"); U.S. v. Agurs , 427 U.S. 97 , 108, 96 S.Ct. 2392 , 49 L.Ed.2d 342

2025See State v. Huggett, 2010 WI App 69, ¶¶26-27 , 324 Wis. 2d 786 , 783 N.W.2d 675 (upholding the circuit court’s dismissal of charges as a sanction for the State’s failure to preserve evidence). 8 No. 2024AP306 ¶24 In order for a Brady claim to survive being procedurally barred, Moffett must demonstrate that this claim is “clearly stronger than the claim[] postconviction counsel actually brought.” Romero-Georgana, 360 Wis. 2d 522, ¶4 .

2025See Romero-Georgana, 360 Wis. 2d 522, ¶30 . ¶12 Furthermore, Smith has not pled sufficient facts to establish his Brady claim.

2019Id. ¶11 Bostick contends his plea was not knowing, intelligent, and voluntary due to Cafferty's ineffective assistance and an alleged Brady violation.

2019Id. ¶11 Bostick contends his plea was not knowing, intelligent, and voluntary due to Cafferty's ineffective assistance and an alleged Brady violation.

2022Id. ¶7 To establish a Brady violation, a defendant must show that the State suppressed the evidence in question, that the impeachment or exculpatory evidence was favorable to him or her, and that the evidence was material to the determination of his or her guilt or punishment.

2022Id. ¶7 To establish a Brady violation, a defendant must show that the State suppressed the evidence in question, that the impeachment or exculpatory evidence was favorable to him or her, and that the evidence was material to the determination of his or her guilt or punishment.

2016For example, in Pitonyak v. Stephens, 732 F.3d 525 (5th Cir. 2013), the Fifth Circuit, recognizing Brady's limitation, held that the prosecution's Brady requirement did not extend to "a jail counselor" because the counselor was "not involved in investigating or preparing the case against [the defendant]." Id. at 531, 533 . ¶51 And in Illinois v. C.J., 652 N.E.2d 315 (Ill. 1995), the Supreme Court of Illinois held that "where [the Division of Child Family Services] acts at the behest of and in tandem with the State's Attorney, with the intent and purpose of assisting the prosecutorial effort, D

2016For example, in Pitonyak v. Stephens, 732 F.3d 525 (5th Cir. 2013), the Fifth Circuit, recognizing Brady's limitation, held that the prosecution's Brady requirement did not extend to "a jail counselor" because the counselor was "not involved in investigating or preparing the case against [the defendant]." Id. at 531, 533 . ¶51 And in Illinois v. C.J., 652 N.E.2d 315 (Ill. 1995), the Supreme Court of Illinois held that "where [the Division of Child Family Services] acts at the behest of and in tandem with the State's Attorney, with the intent and purpose of assisting the prosecutorial effort, D

2026State v. Rockette, 2006 WI App 103, ¶39 , 294 Wis. 2d 611 , 718 N.W.2d 269 .

2026State v. Rockette, 2006 WI App 103, ¶39 , 294 Wis. 2d 611 , 718 N.W.2d 269 .

2018One way to demonstrate a manifest injustice is to establish that the defendant "was deprived of a right guaranteed by the constitution, statute, or rule and that deprivation induced the defendant to plead guilty." State v. Harris , 2004 WI 64 , ¶ 39, 272 Wis. 2d 80 , 680 N.W.2d 737 . ¶ 11 A defendant "has a constitutional right to material exculpatory evidence in the hands of the prosecutor." State v. DelReal , 225 Wis. 2d 565 , 570, 593 N.W.2d 461 (Ct. App. 1999) ; see also Brady , 373 U.S. at 87 ("suppression by the prosecution of evidence favorable to an accused upon request violates due pr

2018One way to demonstrate a manifest injustice is to establish that the defendant "was deprived of a right guaranteed by the constitution, statute, or rule and that deprivation induced the defendant to plead guilty." State v. Harris , 2004 WI 64 , ¶ 39, 272 Wis. 2d 80 , 680 N.W.2d 737 . ¶ 11 A defendant "has a constitutional right to material exculpatory evidence in the hands of the prosecutor." State v. DelReal , 225 Wis. 2d 565 , 570, 593 N.W.2d 461 (Ct. App. 1999) ; see also Brady , 373 U.S. at 87 ("suppression by the prosecution of evidence favorable to an accused upon request violates due pr

2025See State v. Witkowski, 163 Wis. 2d 985, 990 , 473 N.W.2d 512 (Ct. App. 1991). ¶10 Furthermore, to the extent that Smith’s claim regarding the 2016 video is a separate Brady claim, Smith fails to present a sufficient reason for failing to raise it in his first postconviction motion.

2025See State v. Witkowski, 163 Wis. 2d 985, 990 , 473 N.W.2d 512 (Ct. App. 1991). ¶10 Furthermore, to the extent that Smith’s claim regarding the 2016 video is a separate Brady claim, Smith fails to present a sufficient reason for failing to raise it in his first postconviction motion.

2019See Cone , 556 U.S. at 470 , 129 S.Ct. 1769 ("favorable evidence is subject to constitutionally mandated disclosure"); Banks , 540 U.S. at 693 , 124 S.Ct. 1256 (referring to "Brady disclosure obligations"); Kyles , 514 U.S. at 441 , 115 S.Ct. 1555 ("disclosure of the suppressed evidence to competent counsel would have made a different result reasonably probable"); Strickler , 527 U.S. at 281 , 119 S.Ct. 1936 (" 'Brady violation' is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence"); U.S. v. Agurs , 427 U.S. 97 , 108, 96 S.Ct. 2392 , 49 L.Ed.2d 342

2019See Cone , 556 U.S. at 470 , 129 S.Ct. 1769 ("favorable evidence is subject to constitutionally mandated disclosure"); Banks , 540 U.S. at 693 , 124 S.Ct. 1256 (referring to "Brady disclosure obligations"); Kyles , 514 U.S. at 441 , 115 S.Ct. 1555 ("disclosure of the suppressed evidence to competent counsel would have made a different result reasonably probable"); Strickler , 527 U.S. at 281 , 119 S.Ct. 1936 (" 'Brady violation' is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence"); U.S. v. Agurs , 427 U.S. 97 , 108, 96 S.Ct. 2392 , 49 L.Ed.2d 342

2019See Cone , 556 U.S. at 470 , 129 S.Ct. 1769 ("favorable evidence is subject to constitutionally mandated disclosure"); Banks , 540 U.S. at 693 , 124 S.Ct. 1256 (referring to "Brady disclosure obligations"); Kyles , 514 U.S. at 441 , 115 S.Ct. 1555 ("disclosure of the suppressed evidence to competent counsel would have made a different result reasonably probable"); Strickler , 527 U.S. at 281 , 119 S.Ct. 1936 (" 'Brady violation' is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence"); U.S. v. Agurs , 427 U.S. 97 , 108, 96 S.Ct. 2392 , 49 L.Ed.2d 342

2019See Cone , 556 U.S. at 470 , 129 S.Ct. 1769 ("favorable evidence is subject to constitutionally mandated disclosure"); Banks , 540 U.S. at 693 , 124 S.Ct. 1256 (referring to "Brady disclosure obligations"); Kyles , 514 U.S. at 441 , 115 S.Ct. 1555 ("disclosure of the suppressed evidence to competent counsel would have made a different result reasonably probable"); Strickler , 527 U.S. at 281 , 119 S.Ct. 1936 (" 'Brady violation' is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence"); U.S. v. Agurs , 427 U.S. 97 , 108, 96 S.Ct. 2392 , 49 L.Ed.2d 342

2025See State v. Huggett, 2010 WI App 69, ¶¶26-27 , 324 Wis. 2d 786 , 783 N.W.2d 675 (upholding the circuit court’s dismissal of charges as a sanction for the State’s failure to preserve evidence). 8 No. 2024AP306 ¶24 In order for a Brady claim to survive being procedurally barred, Moffett must demonstrate that this claim is “clearly stronger than the claim[] postconviction counsel actually brought.” Romero-Georgana, 360 Wis. 2d 522, ¶4 .

2025See State v. Huggett, 2010 WI App 69, ¶¶26-27 , 324 Wis. 2d 786 , 783 N.W.2d 675 (upholding the circuit court’s dismissal of charges as a sanction for the State’s failure to preserve evidence). 8 No. 2024AP306 ¶24 In order for a Brady claim to survive being procedurally barred, Moffett must demonstrate that this claim is “clearly stronger than the claim[] postconviction counsel actually brought.” Romero-Georgana, 360 Wis. 2d 522, ¶4 .