A prosecutor’s failure to disclose material exculpatory information to the defense renders a guilty or no contest plea constitutionally invalid.[491]  Where the prosecution fails to disclose exculpatory evidence, a motion to withdraw a guilty plea should be granted where there is a reasonable probability that, but for the discovery violation, the defendant would have refused to enter the plea and insisted on going to trial.[492]  Long-standing legal rules, however, require a conviction based on perjured testimony to be set aside, even if the prosecution was unaware of it at the time.[493]

In California, disclosure of constitutionally mandated discovery under Brady and its progeny is required, even though this evidence is not included under California Penal Code § 1054.1.[494]  The California Supreme Court further refined the definition of exculpatory evidence in People v. Coddington: “Evidence is favorable and must be disclosed if it will either help the defendant or hurt the prosecution . . . .”[495]

 

            The disclosures required under Brady also include the duty to disclose all information which might potentially impeach the credibility of prosecution witnesses or evidence.[496]  The United States Supreme Court, however, held that mere impeachment information need not be disclosed by the prosecution prior to plea.[497]

 

            The duty to disclose is applicable even though there has been no request by the accused.[498]  The rule covers information “known only to the police investigators and not the prosecutor.”[499]  “The individual prosecutor is presumed to have knowledge of all information gathered in connection with the government’s investigation.”[500]

 

Prosecution suppression of exculpatory evidence is material and therefore prejudicial if there is a reasonable probability that the suppressed evidence would have produced a different verdict.[501]  Evidence it “might” have changed the outcome is not enough.  Undisclosed evidence is material if its absence prevented the defendant from receiving a trial resulting in a verdict worthy of confidence, or if it could reasonably be taken to put the case in such a different light as to undermine confidence in the verdict.[502]

 

The Ninth Circuit has held the prosecution had a duty to turn over exculpatory evidence relevant to a habeas corpus proceeding.[503]  Under California law, as well, the State’s obligation to disclose continues into post-conviction actions.[504]

 

[491] Sanchez v. United States, 50 F.3d 1448 (9th Cir. 1995); In re Brown, 17 Cal.4th 873, 879-880 (1998); see also Tate v. Wood, 963 F.2d 20 (2d Cir. 1992); Miller v. Angliker, 848 F.2d 1312 (2d Cir. 1988).  But see Matthew v. Johnson, 201 F.3d 353 (5th Cir. 2000) (holding that in 1994 for a Brady violation to invalidate a plea, rather a trial, would be a “new rule” under Teague v. Lane, 489 U.S. 288 (1989), and so does not apply on habeas corpus).

[492] Sanchez v. United States, 50 F.3d 1448, 1454 (9th Cir. 1995); Campbell v. Marshall, 769 F.2d 314, 324 (6th Cir. 1985); Scroggins v. State, 859 S.W.2d 704, 709 (Mo. Ct. App. 1993); State v. Sturgeon, 231 N.W.2d 487 (Wis.Ct.App. 1999); see also Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 1827 (1998) (prosecutor failed to disclose information in state’s files showing that prosecution’s central witness, who later confessed to murder for which petitioner was convicted, had previously been committed to mental hospital for violent rages, had long history of prior crimes and lying to the police and blaming others to cover up his own guilt); East v. Johnson, 123 F.3d 235 (5th Cir. 1997) (prosecutor suppressed evidence that would have led defense to discover report raising substantial questions about sanity and credibility of crucial sentencing witness who claimed that petitioner robbed and raped her prior to murder for which petitioner was sentenced to die); Guerra v. Johnson, 90 F.3d 1075 (5th Cir. 1996) (police coerced two originally-exculpatory eyewitnesses into corroborating prosecution theory); Riggins v. Rees, 74 F.3d 732 (6th Cir. 1996) (state’s refusal to provide transcripts, rather than merely court reporter’s tapes, of previous two mistrials violated Equal Protection Clause); Devose v. Norris, 53 F.3d 201 (8th Cir. 1995) (refusal to disclose identity of confidential informant eyewitness).

[493] Killian v. Poole, 282 F.3d 1204 (9th Cir. March 13, 2002) (prosecutor's reliance on perjured testimony (whether knowing or not) requires that conviction be set aside); Hall v. Director of Corrections, 343 F.3d 976 (9th Cir. September 8, 2003) (appellate court reversal of trial court finding that scientific evidence and jailhouse snitch’s subsequent testimony supported claim that snitch had falsified jailhouse notes between him and petitioner in order to incriminate him constituted unreasonable determination of facts in light of evidence presented to trial court).

[494] Izazaga v. Superior Court, 54 Cal.3d 356, 378 (1991).

[495] People v. Coddington, 23 Cal.4th 529 (2000).

[496] United States v. Bagley, 473 U.S. 667, 676 (1985); Kyles v. Whitley, 514 U.S. 419, 450-451 (1995); People v. Santos, 30 Cal.App.4th 169, 178-179 (1994); People v. Little, 59 Cal. App.4th 426 (1997).

[497] United States v. Ruiz, 536 U.S. 622 (June 24, 2002) (constitution does not require government to disclose material impeachment evidence or affirmative defense information prior to entering plea agreement with defendant).

[498] United States v. Agurs, 427 U.S. 97, 107 (1976).

[499] Kyles v. Whitley, 514 U.S. 419, 438 (1995); see, e.g, Smith v. Secretary Dept. of Corrections, 50 F.3d 801, 824  (10th Cir. 1995) (“the prosecution” extends to law enforcement personnel and other arms of the state involved in investigative aspects); United States v. Brooks, 296 U.S.App.D.C. 219, 966 F.2d 1500, 1503 (D.C. Cir. 1992) (duty to investigate based on “close working relationship” between police and United States Attorney).

[500] United States v. Payne, 63 F.3d 1200, 1208  (2d Cir.1995); see, e.g., In re Malone, 12 Cal.4th 935, 977, n.22, 50 Cal.Rptr.2d 281, 911 P.2d 468 (1996); People v. Little, 59 Cal.App.4th 426, 433, 68 Cal.Rptr.2d 907 (1997).

[501] Kyles v. Whitley, 514 U.S. 419, 438 (1995); United States v. Barton, 995 F.2d 931, 933-34 (9th Cir. 1993); In re Sassounian, 9 Cal.4th 535 (1995).

[502] Strickler v. Greene, 527 U.S. 263 (1999).

[503] Thomas v. Goldsmith, 979 F.2d 746, 749-750 (9th Cir. 1992).

[504] People v. Garcia, 17 Cal.App.4th 1169 (1992).

POST CON RELIEF " GROUNDS " PROSECUTION MISCONDUCT "FAILURE TO DISCLOSE EXCULPATORY EVIDENCE
Smith v. Cain, ___ U.S. ___, 132 S.Ct. 627 (Jan. 10, 2012) (prosecutor's failure to disclose contradictory statements of the sole eyewitness, whose testimony formed the basis of defendant's conviction, was a Brady violation requiring reversal of the conviction, because the statements are material where there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different).

GROUNDS - EXCULPATORY EVIDENCE - FAILURE TO DISCLOSE
Banks v. Dretke, ___ U.S. ___ (February 24, 2004) (concealment of significant exculpatory or impeachment material in possession of the police or prosecutor is basis for grant of habeas).
http://laws.findlaw.com/us/000/02-8286.html

POST CON RELIEF - GROUNDS - PROSECUTION MISCONDUCT -- PROSECUTION ETHICS
http://www.ethicsforprosecutors.com/quotes.html

Ninth Circuit

POST CON RELIEF " GROUNDS " PROSECUTION VIOLATION OF DUTY TO DISCLOSE FAVORABLE EVIDENCE " BRADY VIOLATION
Amado v. Gonzalez, ___ F.3d ___, 2014 WL 3377340 (9th Cir. Jul. 11, 2014) (superseding opinion) (reversing denial of habeas relief, where the prosecution had a Brady obligation to produce the witness' conviction and probation records and the evidence was material, rendering the government's failure to disclose it prejudicial).

POST CON RELIEF " GROUNDS " PROSECUTORIAL MISCONDUCT " FAILURE TO DISCLOSE EXCULPATORY EVIDENCE TO DEFENSE " BRADY VIOLATION REVERSAL
United States v. Kohring, ___ F.3d ___, 2011 WL 833263 (9th Cir. Mar. 11, 2011) (reversing federal conviction on public corruption charges where the failure by prosecution to disclose favorable evidence to defendant violated Brady v. Maryland).

POST CON RELIEF - GROUNDS - PROSECUTION MISCONDUCT
Comer v. Schiro (2006) F.3d (9th Cir. Sept. 13, 2006) (prosecutorial misconduct by using dehumanizing epithets during closing argument, including references to the defendant as "filth," a "monster," and "a reincarnation of the devil," did not constitute a due process violation or render the trial fundamentally unfair). http://caselaw.lp.findlaw.com/data2/circs/9th/9899003p.pdf

POST CON RELIEF - PROSECUTORIAL MISCONDUCT
Earp v. Ornoski, ___ F.3d ___, 2005 WL 3440810 (9th Cir. Dec. 16, 2005) (denial of habeas petition reversed where petitioner had never been given an evidentiary hearing on prosecutorial misconduct and ineffective assistance of counsel claims).
http://caselaw.lp.findlaw.com/data2/circs/9th/0399005p.pdf

POST CON RELIEF - GROUNDS - PROSECUTION FAILURE TO DISCLOSE EXCULPATORY EVIDENCE
Horton v. Mayle, ___ F.3d ___ (9th Cir. May 10, 2005) (habeas denial vacated, where prosecution violated defendant's rights under Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose an agreement between a witness and the police).
http://caselaw.lp.findlaw.com/data2/circs/9th/0356618p.pdf

POST CON RELIEF - GROUNDS - PROSECUTION MISCONDUCT
Hays v. Brown, __ F.3d __ (9th Cir. March 07, 2005) (prosecutor's knowing presentation of false evidence and failure to correct the record violate a criminal defendant's due process rights).
http://caselaw.lp.findlaw.com/data2/circs/9th/9999030p.pdf

POST CONVICTION RELIEF - GROUNDS - FAILURE TO DISCLOSE EXCULPATORY EVIDENCE - PROBATION FILES
United States v. Alvarez, __ F.3d __ (9th Cir. February 25, 2004) (where district court fails to conduct in camera review of probation files of significant witnesses pursuant to timely Brady request, conviction will be vacated and case remanded to conduct review; if files found to contain material information bearing on credibility of witnesses, court shall release such and order new trial).
http://caselaw.lp.findlaw.com/data2/circs/9th/0110686p.pdf