Brady violation in Ohio

2026In Brady v. Maryland, “the United States Supreme Court held that a state violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution by suppressing evidence favorable 16 to the accused where the evidence is material to guilt.” State v. Brown, 2024-Ohio-749, ¶ 30, citing Brady v. Maryland, 373 U.S. 83, 87 (1963). {¶45} “To establish a Brady violation, a defendant must demonstrate (1) that the evidence is favorable to the defendant, because it is either exculpatory or impeaching, (2) that the evidence was willfully or inadvertently suppressed by the state, and (

2026In Brady v. Maryland, “the United States Supreme Court held that a state violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution by suppressing evidence favorable 16 to the accused where the evidence is material to guilt.” State v. Brown, 2024-Ohio-749, ¶ 30, citing Brady v. Maryland, 373 U.S. 83, 87 (1963). {¶45} “To establish a Brady violation, a defendant must demonstrate (1) that the evidence is favorable to the defendant, because it is either exculpatory or impeaching, (2) that the evidence was willfully or inadvertently suppressed by the state, and (

2026And when considering whether evidence is material under Brady the question is whether “ ‘ “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” ’ ” State v. Jury, 2022-Ohio-4419, ¶ 11 (6th Dist.), quoting Kyles v. Whitley, 514 U.S. 419, 433 (1995), quoting U.S. v. Bagley, 473 U.S. 667, 682 (1985). “[R]easonable probability” is defined as a “probability sufficient to undermine confidence in the outcome.” Id., citing Bagley at 682 and State v. Johnston, 39 Ohio St.3d 48 (1989), paragraph five of the sylla

2026And when considering whether evidence is material under Brady the question is whether “ ‘ “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” ’ ” State v. Jury, 2022-Ohio-4419, ¶ 11 (6th Dist.), quoting Kyles v. Whitley, 514 U.S. 419, 433 (1995), quoting U.S. v. Bagley, 473 U.S. 667, 682 (1985). “[R]easonable probability” is defined as a “probability sufficient to undermine confidence in the outcome.” Id., citing Bagley at 682 and State v. Johnston, 39 Ohio St.3d 48 (1989), paragraph five of the sylla

2026In addition, “Brady applies to the ‘the discovery, after trial, of information which had been known to the prosecution but unknown to the defense.’” Id. at ¶ 31, quoting United States v. Agurs, 427 U.S. 97, 103 (1976). “‘Strictly speaking, Brady is not violated when disclosure occurs during trial, even when disclosure surprises the defendant with previously undisclosed evidence.’” Id., quoting State v. Iacona, 93 Ohio St.3d 83, 100 (2001); see also State v. Wickline, 50 Ohio St.3d 114 (1990) (finding there is no Brady violation when the alleged exculpatory records were presented during trial).

2026In addition, “Brady applies to the ‘the discovery, after trial, of information which had been known to the prosecution but unknown to the defense.’” Id. at ¶ 31, quoting United States v. Agurs, 427 U.S. 97, 103 (1976). “‘Strictly speaking, Brady is not violated when disclosure occurs during trial, even when disclosure surprises the defendant with previously undisclosed evidence.’” Id., quoting State v. Iacona, 93 Ohio St.3d 83, 100 (2001); see also State v. Wickline, 50 Ohio St.3d 114 (1990) (finding there is no Brady violation when the alleged exculpatory records were presented during trial).

2026In Brady v. Maryland, “the United States Supreme Court held that a state violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution by suppressing evidence favorable 16 to the accused where the evidence is material to guilt.” State v. Brown, 2024-Ohio-749, ¶ 30, citing Brady v. Maryland, 373 U.S. 83, 87 (1963). {¶45} “To establish a Brady violation, a defendant must demonstrate (1) that the evidence is favorable to the defendant, because it is either exculpatory or impeaching, (2) that the evidence was willfully or inadvertently suppressed by the state, and (

2026In Brady v. Maryland, “the United States Supreme Court held that a state violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution by suppressing evidence favorable 16 to the accused where the evidence is material to guilt.” State v. Brown, 2024-Ohio-749, ¶ 30, citing Brady v. Maryland, 373 U.S. 83, 87 (1963). {¶45} “To establish a Brady violation, a defendant must demonstrate (1) that the evidence is favorable to the defendant, because it is either exculpatory or impeaching, (2) that the evidence was willfully or inadvertently suppressed by the state, and (

2026A Brady violation is established when a defendant shows that “‘the favorable [but suppressed] evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”’ (Brackets in original.) State v. Addison, 2024-Ohio-5805 at ¶ 21 (8th Dist.), quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995).

2026A Brady violation is established when a defendant shows that “‘the favorable [but suppressed] evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”’ (Brackets in original.) State v. Addison, 2024-Ohio-5805 at ¶ 21 (8th Dist.), quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995).

2026In addition, “Brady applies to the ‘the discovery, after trial, of information which had been known to the prosecution but unknown to the defense.’” Id. at ¶ 31, quoting United States v. Agurs, 427 U.S. 97, 103 (1976). “‘Strictly speaking, Brady is not violated when disclosure occurs during trial, even when disclosure surprises the defendant with previously undisclosed evidence.’” Id., quoting State v. Iacona, 93 Ohio St.3d 83, 100 (2001); see also State v. Wickline, 50 Ohio St.3d 114 (1990) (finding there is no Brady violation when the alleged exculpatory records were presented during trial).

2026We note that in State v. Wickline, 50 Ohio St.3d 114 (1990), the Supreme Court of Ohio rejected a claim that the state's failure to provide exculpatory information to the defendant before trial was a reversible Brady violation because the alleged exculpatory records were presented during trial.

2026Bethel at ¶ 25, 29 (rejecting the State’s assertion that a defendant seeking to raise a Brady claim is required to show that he could not have discovered the suppressed evidence by exercising reasonable diligence); see also State v. McNeal, 2022-Ohio-2703, ¶ 17 , and Hatton at ¶ 31 .

2026Bethel at ¶ 25, 29 (rejecting the State’s assertion that a defendant seeking to raise a Brady claim is required to show that he could not have discovered the suppressed evidence by exercising reasonable diligence); see also State v. McNeal, 2022-Ohio-2703, ¶ 17 , and Hatton at ¶ 31 .

2025State v. Marshall, 2021-Ohio-816, ¶ 12 (1st Dist.), citing State v. Wickline, 50 Ohio St.3d 114, 116 (1990); see United States v. Agurs, 427 U.S. 97, 103 (1976) (stating that Brady “arguably applies in . . . situations . . . involv[ing] the discovery, after trial, of information which had been known to the prosecution but unknown to the defense.”); but see State v. Iacona, 93 Ohio St.3d 83, 100 (2001) (“It has, however, been held that the philosophical underpinnings of Brady support the conclusion that even disclosure of potentially exculpatory evidence during trial may constitute a due proces

2025State v. Marshall, 2021-Ohio-816, ¶ 12 (1st Dist.), citing State v. Wickline, 50 Ohio St.3d 114, 116 (1990); see United States v. Agurs, 427 U.S. 97, 103 (1976) (stating that Brady “arguably applies in . . . situations . . . involv[ing] the discovery, after trial, of information which had been known to the prosecution but unknown to the defense.”); but see State v. Iacona, 93 Ohio St.3d 83, 100 (2001) (“It has, however, been held that the philosophical underpinnings of Brady support the conclusion that even disclosure of potentially exculpatory evidence during trial may constitute a due proces

2026State v. Sullivan, 2014-Ohio-1260, ¶ 20 (10th Dist.), quoting State v. Moore, 2013-Ohio-3365 , ¶ 43 (10th Dist.), quoting State v. Hanna, 2002-Ohio-2221, ¶ 60 (“ ‘A Brady violation may not rest upon a claim that is “purely speculative.” ’ ”). {¶ 20} Diallo claims that additional Blink camera recordings must have existed, their absence in discovery necessarily means that the state suppressed or destroyed them, the recordings would have shown Fatoumata putting the children in the crawlspace and Diallo later removing them, and they further would have shown that Diallo retrieved a ladder from the

2026State v. Sullivan, 2014-Ohio-1260, ¶ 20 (10th Dist.), quoting State v. Moore, 2013-Ohio-3365 , ¶ 43 (10th Dist.), quoting State v. Hanna, 2002-Ohio-2221, ¶ 60 (“ ‘A Brady violation may not rest upon a claim that is “purely speculative.” ’ ”). {¶ 20} Diallo claims that additional Blink camera recordings must have existed, their absence in discovery necessarily means that the state suppressed or destroyed them, the recordings would have shown Fatoumata putting the children in the crawlspace and Diallo later removing them, and they further would have shown that Diallo retrieved a ladder from the

2025However, the Brady test “is stringent” and “‘[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish “materiality” in the constitutional sense.’” State v. Jackson, 57 Ohio St.3d 29, 33 (1991), quoting United States v. Agurs, 427 U.S. 97, 109-110 (1976).

2025However, the Brady test “is stringent” and “‘[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish “materiality” in the constitutional sense.’” State v. Jackson, 57 Ohio St.3d 29, 33 (1991), quoting United States v. Agurs, 427 U.S. 97, 109-110 (1976).

2026Bethel at ¶ 25, 29 (rejecting the State’s assertion that a defendant seeking to raise a Brady claim is required to show that he could not have discovered the suppressed evidence by exercising reasonable diligence); see also State v. McNeal, 2022-Ohio-2703, ¶ 17 , and Hatton at ¶ 31 .

2026Bethel at ¶ 25, 29 (rejecting the State’s assertion that a defendant seeking to raise a Brady claim is required to show that he could not have discovered the suppressed evidence by exercising reasonable diligence); see also State v. McNeal, 2022-Ohio-2703, ¶ 17 , and Hatton at ¶ 31 .

2023On appeal, the “standard of review for the materiality of a purported Brady violation is de novo because it presents a mixed question of law and fact.” State v. Sutton, 8th Dist. Cuyahoga Nos. 108748 and 108750, 2021-Ohio-854 , ¶ 61, quoting United States v. Phillip, 948 F.2d 241, 250 (6th Cir.1991).

2023On appeal, the “standard of review for the materiality of a purported Brady violation is de novo because it presents a mixed question of law and fact.” State v. Sutton, 8th Dist. Cuyahoga Nos. 108748 and 108750, 2021-Ohio-854 , ¶ 61, quoting United States v. Phillip, 948 F.2d 241, 250 (6th Cir.1991).

2026However, “a trial court’s ruling on a motion for new trial claiming a Brady violation should be reviewed using ‘a due process analysis rather than an abuse of discretion test because the issue on review concern[s] [the defendant’s] due process right to a fair trial, namely the suppression by the prosecution of evidence favorable to [the defendant].’” Smith at ¶ 24 , quoting State v. Johnston, 39 Ohio St.3d 48, 60 (1988).

2026However, “a trial court’s ruling on a motion for new trial claiming a Brady violation should be reviewed using ‘a due process analysis rather than an abuse of discretion test because the issue on review concern[s] [the defendant’s] due process right to a fair trial, namely the suppression by the prosecution of evidence favorable to [the defendant].’” Smith at ¶ 24 , quoting State v. Johnston, 39 Ohio St.3d 48, 60 (1988).

2018Greene No. 2017-CA-43, 2018-Ohio- 2115, ¶ 66; Moore v. Illinois, 408 U.S. 786, 794-795 , 92 S.Ct. 2562 , 33 L.Ed.2d 706 (1972). {¶ 27} Because exculpatory and impeachment evidence are favorable to the -11- defendant, both types of evidence may be the subject of a Brady violation, so long as the evidence is material.

2018Greene No. 2017-CA-43, 2018-Ohio- 2115, ¶ 66; Moore v. Illinois, 408 U.S. 786, 794-795 , 92 S.Ct. 2562 , 33 L.Ed.2d 706 (1972). {¶ 27} Because exculpatory and impeachment evidence are favorable to the -11- defendant, both types of evidence may be the subject of a Brady violation, so long as the evidence is material.

2019See, State v. Ketterer, 126 Ohio St.3d 448 , 2010-Ohio-3831 , 935 N.E.2d 9, ¶ 36 (“no Brady violation occurs where a defendant knows of essential facts permitting him to take advantage of exculpatory information or where evidence is available from another source.” citing United States v. Clark (C.A.6, 1991), 928 F.2d 733, 738 ).

2019See State v. LaMar, 95 Ohio St.3d 181 , 2002-Ohio-2128 , 767 N.E.2d 166, ¶ 28, fn. 2 (no Brady violation occurs where a defendant knows of essential facts permitting him to take advantage of exculpatory information or where evidence is available from another source), citing United States v. Clark (C.A.6, 1991), 928 F.2d 733, 738 ; see also State v. Iacona (2001), 93 Ohio St.3d 83, 100 , 752 N.E.2d 937 , quoting United States v. Smith Grading & Paving, Inc. (C.A.4, 1985), 760 F.2d 527, 532 (“ ‘No due process violation occurs as long as Brady material is disclosed to a defendant in time for its

2001See State v. Brown (1996), 112 Ohio App.3d 583 , 595 ; see, also, State v. Green (2000), 90 Ohio St.3d 352 , 372 (evidence presented during trial cannot constitute a Brady violation).

2001See State v. Brown (1996), 112 Ohio App.3d 583 , 595 ; see, also, State v. Green (2000), 90 Ohio St.3d 352 , 372 (evidence presented during trial cannot constitute a Brady violation).

2025Parsons contends that, because the evidence was suppressed by the State, he was unavoidably prevented from discovering it and therefore should be granted leave to file a motion for a new trial based on a Brady violation, regardless of whether he exercised reasonable diligence in trying to find the evidence sooner. {¶18} “Under Brady, the State violates a defendant’s right to due process if it withholds evidence that is favorable to the defense and material to the defendant’s guilt or punishment.” Smith v. Cain, 565 U.S. 73, 75 (2012).

2025While we agree with Wood that the trial court should not have relied on the prosecutor’s statement, which was not presented in the form of an affidavit, we nevertheless agree with the trial court that there was no Brady violation. {¶ 50} In Brady, the Supreme Court of the United States held that a state violates the Fourteenth Amendment to the United States Constitution when it “withholds evidence -24- that is favorable to the defense and material to the defendant's guilt or punishment.” Smith v. Cain, 565 U.S. 73, 75 (2012) (summarizing the Court’s holding in Brady, 373 U.S. 83 ).

2022If the evidence is materially exculpable, the Brady standard applies and the intention of the state is "irrelevant." Id. at ¶ 9, quoting Arizona v. Youngblood, 488 U.S. 51, 57 (1988).

2022If the evidence is materially exculpable, the Brady standard applies and the intention of the state is "irrelevant." Id. at ¶ 9, quoting Arizona v. Youngblood, 488 U.S. 51, 57 (1988).

2025To establish a Brady violation, “the defendant must demonstrate that (1) favorable evidence, either exculpatory or impeaching; (2) was willfully or inadvertently withheld by the state; and (3) the defendant was prejudiced thereby.” State v. Buehner, 2021-Ohio-4435, ¶ 38 (8th Dist.), citing Banks v. Dretke, 540 U.S. 668, 691 (2004).

2025To establish a Brady violation, “the defendant must demonstrate that (1) favorable evidence, either exculpatory or impeaching; (2) was willfully or inadvertently withheld by the state; and (3) the defendant was prejudiced thereby.” State v. Buehner, 2021-Ohio-4435, ¶ 38 (8th Dist.), citing Banks v. Dretke, 540 U.S. 668, 691 (2004).

2025The Brady doctrine stands for the proposition that the government violates a defendant's right to due process when it achieves a conviction through perjured testimony, or by withholding evidence that is "'so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce.'" State v. Widmer, 2013-Ohio-62, ¶ 32 (12th Dist.), quoting United States v. Agurs, 427 U.S. 97, 107 (1976). {¶ 18} Brady imposes upon the government the obligation to "'turn over evidence in its possession that is both favorable to the accused and material to guilt or -5- Fayette CA2024-0

2025The Brady doctrine stands for the proposition that the government violates a defendant's right to due process when it achieves a conviction through perjured testimony, or by withholding evidence that is "'so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce.'" State v. Widmer, 2013-Ohio-62, ¶ 32 (12th Dist.), quoting United States v. Agurs, 427 U.S. 97, 107 (1976). {¶ 18} Brady imposes upon the government the obligation to "'turn over evidence in its possession that is both favorable to the accused and material to guilt or -5- Fayette CA2024-0

2026Evidence is material where “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Turner v. United States, 582 U.S. 313, 324 (2017), quoting Cone v. Bell, 556 U.S. 449, 469-470 (2009). {¶34} To prevail on a Brady claim, a defendant must show that (1) the undisclosed evidence favored the accused, (2) the State, willfully or inadvertently, suppressed the evidence, and (3) the suppression prejudiced the accused.

2026Evidence is material where “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Turner v. United States, 582 U.S. 313, 324 (2017), quoting Cone v. Bell, 556 U.S. 449, 469-470 (2009). {¶34} To prevail on a Brady claim, a defendant must show that (1) the undisclosed evidence favored the accused, (2) the State, willfully or inadvertently, suppressed the evidence, and (3) the suppression prejudiced the accused.

2025(May 15, 2024 Trial Tr. at 16). -18- insufficient to show a Brady violation.” State v. Pepper, 2003-Ohio-3053 , ¶ 33 (2d Dist.); see also State v. Eubank, 38 Ohio App.3d 141, 146 (6th Dist. 1987) (prosecution’s failure to disclose a tape did not result in a Brady violation because “the evidence included in the tape is merely cumulative to that presented at trial”; the parts of the tape that might have aided defendant were already presented at trial through other sources); State v. Smith, 2018-Ohio-4691, ¶ 40 (2d Dist.) (where the information on a recording was cumulative to information already

2025(May 15, 2024 Trial Tr. at 16). -18- insufficient to show a Brady violation.” State v. Pepper, 2003-Ohio-3053 , ¶ 33 (2d Dist.); see also State v. Eubank, 38 Ohio App.3d 141, 146 (6th Dist. 1987) (prosecution’s failure to disclose a tape did not result in a Brady violation because “the evidence included in the tape is merely cumulative to that presented at trial”; the parts of the tape that might have aided defendant were already presented at trial through other sources); State v. Smith, 2018-Ohio-4691, ¶ 40 (2d Dist.) (where the information on a recording was cumulative to information already

2026“When asserting a Brady violation, the defendant bears the burden of demonstrating that his or her due process rights were violated.” State v. Gillis, 2024-Ohio-726, ¶ 62 (8th Dist.), citing State v. Glover, 2016-Ohio-2833, ¶ 35 (8th Dist.).

2026“When asserting a Brady violation, the defendant bears the burden of demonstrating that his or her due process rights were violated.” State v. Gillis, 2024-Ohio-726, ¶ 62 (8th Dist.), citing State v. Glover, 2016-Ohio-2833, ¶ 35 (8th Dist.).

2013See Giglio v. United States, 405 U.S. 150, 154 , 92 S.Ct. 763 (1972). {¶ 30} The Supreme Court repeatedly has emphasized that, -9- Warren CA2012-02-008 [t]he Brady rule is based on the requirement of due process.

2013See Giglio v. United States, 405 U.S. 150, 154 , 92 S.Ct. 763 (1972). {¶ 30} The Supreme Court repeatedly has emphasized that, -9- Warren CA2012-02-008 [t]he Brady rule is based on the requirement of due process.

2026State v. Allen, 2016-Ohio-7045, ¶ 11, 20, fn. 3 (8th Dist.).

2025To establish a “Brady violation,” a defendant must show that ‘“(1) the evidence at issue must be favorable to the accused because it is exculpatory or impeaching; (2) evidence must have been willfully or inadvertently suppressed by the State; and (3) prejudice ensued.”’ Id. at ¶ 18, quoting State v. Allen, 2016-Ohio-7045, ¶ 12 (8th Dist.).

2026Evidence is material where “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Turner v. United States, 582 U.S. 313, 324 (2017), quoting Cone v. Bell, 556 U.S. 449, 469-470 (2009). {¶34} To prevail on a Brady claim, a defendant must show that (1) the undisclosed evidence favored the accused, (2) the State, willfully or inadvertently, suppressed the evidence, and (3) the suppression prejudiced the accused.

2026Evidence is material where “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Turner v. United States, 582 U.S. 313, 324 (2017), quoting Cone v. Bell, 556 U.S. 449, 469-470 (2009). {¶34} To prevail on a Brady claim, a defendant must show that (1) the undisclosed evidence favored the accused, (2) the State, willfully or inadvertently, suppressed the evidence, and (3) the suppression prejudiced the accused.