October 5, 2021

By Veronica J. Finkelstein and Nicolas Burnosky*

Imagine you are a new prosecutor litigating your first felony homicide case. Given the stakes, you likely feel tremendous pressure to secure a conviction at trial. Based on the evidence, this should be easy. The defendant was found with a gun that matches the bullets recovered from the victim. The defendant has no alibi. Most convincing of all, you have a police report documenting an interview with an eyewitness. This eyewitness told the police he saw the defendant shoot and kill the victim. Although the report itself is inadmissible hearsay, you intend to call the eyewitness to testify at trial. You feel confident that this testimony, along with the other evidence, should be sufficient to convince the jury.

Your confidence is shattered when you receive a call from the police. The officer tells you that the eyewitness was brought in for subsequent questioning and that he recanted the identification. He now claims someone else shot the victim. Before hanging up, the officer tells you she will submit an amended report. It is clear that you no longer wish to call the eyewitness to testify at trial on behalf of the prosecution. But you might nonetheless be able to go forward based on the other evidence you’ve gathered. What must you do with the police reports? Must you disclose them to defense counsel? In the Fourth and Seventh Circuit, the answer is "no." In these circuits, the reports need not be disclosed because they are inadmissible. As explained below, this approach is flawed because it conflates admissibility and materiality.

The Duty to Disclose Material Exculpatory Evidence

Under the due process protections of the Fifth and Fourteenth Amendments, no person shall be deprived “of life, liberty, or property without due process of law.” To ensure due process at trial, the prosecution must generally disclose exculpatory evidence in its possession that is material to the guilt or innocence of a defendant. If the prosecution fails to disclose this evidence, the prosecution violates its duty under Brady v. Maryland.

In Brady, the United States Supreme Court held that the prosecution has a constitutional duty to disclose evidence favorable to the defendant’s guilt or punishment upon request. In subsequent cases, the Supreme Court expanded this disclosure requirement. The prosecution must now disclose to the defendant all material exculpatory and impeachment information known to the prosecution. This is an affirmative obligation and does not obligate the defense to ask for disclosure.

Only certain evidence can give rise to a Brady violation. There are three requirements. First, the evidence must be favorable to the defendant, either because it is exculpatory or because it is impeaching. Second, the evidence must have been suppressed by the government. Third, the evidence must be material. As to this final element, the Supreme Court has defined materiality to mean that the favorable suppressed evidence creates a reasonable probability of a different trial outcome had it been timely disclosed to the defense prior to trial.

The purpose of the Brady disclosure obligation is to create a fair trial. If the prosecution discloses material exculpatory evidence, the defendant can introduce that evidence at trial and use it to argue for an acquittal. But what if the material exculpatory evidence is inadmissible? Does the Brady disclosure requirement still apply? The answer is unclear due to the ambiguous language in the Supreme Court’s Wood v. Bartholomew decision.

The Supreme Court’s Decision in Wood v. Bartholomew

The Supreme Court has only once considered a Brady violation involving inadmissible evidence and its decision raises more questions than answers. In a 5 to 4 per curium opinion in Wood v. Bartholomew, the Supreme Court held that the prosecution had not violated its Brady obligation when it suppressed the results of a polygraph examination because the evidence was immaterial. Although favorable to the defense, the polygraph results were inadmissible under applicable state law. In its opinion, the Supreme Court did not clarify whether the evidence was immaterial because it was inadmissible or for other reasons.

On August 1, 1981, Dwayne Bartholomew killed a laundromat attendant by shooting him during a robbery. Because Bartholomew confessed to both committing the robbery and to shooting the attendant, the only issue at trial was whether there was evidence of premeditation. If there was, Bartholomew could be convicted of aggravated first-degree murder. If there was no evidence of premeditation, he could be convicted of a lesser murder charge.

Prior to the robbery, Bartholomew had discussed his plans with his brother. According to Bartholomew’s brother, Bartholomew had said he planned to rob the laundromat and “leave no witnesses.” Bartholomew denied making this statement and claimed his gun went off accidentally during the robbery. Moreover, Bartholomew implicated his brother in the robbery.

Before trial, Bartholomew’s brother took a polygraph examination and was asked about his involvement the robbery. Although he denied any involvement in the robbery, the polygraph examiner determined that Bartholomew’s brother was lying. The polygraph examination results were not disclosed to defense counsel before trial. At the conclusion of trial, based in part upon the testimony of his brother, Bartholomew was convicted of the aggravated charge.

When the defense learned about the polygraph examination after trial, the defense filed a habeas petition asserting a Brady violation from the lack of pretrial disclosure. The district court denied the petition, holding that Bartholomew failed to demonstrate that disclosure “would have had a reasonable likelihood of affecting the verdict.” Indeed, applicable state law unequivocally prohibited the admission of polygraph examination results at trial.

On appeal, the Ninth Circuit reversed, holding that admissibility and materiality were two distinct concepts. The Ninth Circuit reasoned that even if the results were inadmissible, disclosure of the results might have prompted defense counsel to depose Bartholomew’s brother and inquire about his involvement in the robbery. Concluding that Brady had been violated, the Ninth Circuit reversed the denial of habeas relief.

On appeal, the Supreme Court reversed the Ninth Circuit, holding that the polygraph examination results were immaterial. Citing the familiar standard, the Wood Court noted that evidence is material when there is a reasonable probability that its disclosure would have led to a different outcome at trial. Because the favorable suppressed evidence was inadmissible, the Wood Court concluded that the results could not have altered the outcome of Bartholomew’s trial.

As to the Ninth Circuit’s reasoning that disclosure of the results might have led to the discovery of other admissible evidence, the Wood Court focused narrowly on defense counsel’s actual trial strategy. The Wood Court acknowledged that disclosure of the results might have suggested questions that defense counsel could have asked Bartholomew’s brother at a deposition. However, as the Wood Court noted, defense counsel never intended to depose Bartholomew’s brother at all. In dicta, the Wood Court rejected the Ninth Circuit’s reasoning as too speculative without answering the broader question of whether inadmissible evidence can be material if it leads to the discovery of admissible evidence. By narrowly deciding the issue of materiality based on the facts of the case, the Wood Court deferred the broader question.

Without direction from the Supreme Court, the circuits apply divergent approaches to the question of whether inadmissible evidence can be material. A minority of circuits adopt a per se rule, holding that admissibility is determinative of materiality. A majority of circuits adopt a more flexible approach, considering more than mere admissibility when determining materiality.

The Minority View-Inadmissible Evidence is Per Se Immaterial

The Fourth and Seventh Circuits hold that inadmissible evidence is per se immaterial. Reasoning that because evidence is only material when it could alter the outcome at trial, inadmissible evidence could never meet this standard because it could never be part of a trial.

The impact of this per se rule is illustrated well in Hoke v. Netherland, where the Fourth Circuit adopted this interpretation. In that case, the defendant Hoke had been convicted of raping and murdering a woman. After his conviction, he filed a habeas petition arguing that the prosecution violated its Brady disclosure obligation by suppressing police interviews with three other men who admitted to previously having consensual sex with the victim. The district court agreed that Brady had been violated notwithstanding that Virginia’s Rape Shield Statute likely rendered all three statements inadmissible.

On appeal, the Fourth Circuit reversed, holding that that inadmissible evidence was per se immaterial. The Fourth Circuit reasoned that because the statements could never be admitted at trial, the statements could never alter the outcome. Any further analysis was unnecessary. The inadmissibility of the evidence determined its materiality.

The Majority View-Admissibility Alone does not Determine Materiality

In contrast to the Fourth and Seventh Circuits, the First, Second, Third, Fifth, Sixth, Eighth, Ninth, and Eleventh Circuits hold that admissibility does not, alone, determine materiality. Although each of these circuits rejects a per se approach, they employ different methods of determining materiality.

The First, Third, Sixth, Ninth, and Eleventh Circuits consider inadmissible evidence material when it would directly lead to admissible evidence. For example, in its en banc decision in Dennis v. Sec’y, Pa. Dep’t of Corr., the Third Circuit held that the prosecution had violated its Brady obligation when it suppressed, inter alia, a police activity sheet. Although the activity sheet itself was inadmissible hearsay, within the activity sheet was an inconsistent statement that could have been used to impeach a key prosecution witness. No additional collection of evidence was required—the activity sheet directly pointed to favorable, admissible statement that that the defense could have asked about on cross examination. In the First, Third, Sixth, Ninth, and Eleventh Circuits evidence like the police activity sheet is material despite being inadmissible.

The Second and Eighth Circuits similarly reject a per se approach, but these circuits adopt a different definition of materiality. In these circuits, inadmissible evidence is material when the defendant can demonstrate a non-speculative link between the inadmissible evidence and admissible evidence. For example, in United States v. Gil the Second Circuit held that the prosecution violated its Brady disclosure obligation when it suppressed memoranda that justified the very criminal behavior of which defendant Gil was accused. The memoranda were discovered by the defense only after trial. The Second Circuit noted that the key admissions in the memoranda were inadmissible hearsay. Nevertheless, the Second Circuit articulated several concrete arguments that Gil could have made at trial had he had the memoranda in advance. Therefore, there was a non-speculative link between the inadmissible evidence and admissible evidence. Because the memoranda had been suppressed, the Second Circuit concluded that Gil was entitled to a new trial.

Like the other majority circuits, the Fifth Circuit rejects a per se approach. Unlike the other majority circuits however, the Fifth Circuit does not consider admissibility at all when evaluating whether there has been a Brady violation. Rather the Fifth Circuit simply asks the more general question of whether the disclosure of the suppressed evidence would have created a reasonable probability that the trial result would have been different without delving into how closely the inadmissible, suppressed evidence relates to admissible evidence. Indeed, the Fifth Circuit admits it has not squarely addressed “how to deal with Brady claims about inadmissible evidence.”

Nonetheless, the Fifth Circuit has found Brady violations arising from the suppression of inadmissible evidence. For example, in United States v. Sipe, the Fifth Circuit affirmed the grant of a new trial where the prosecution suppressed, inter alia, evidence that it had provided benefits to key prosecution witnesses in exchange for their testimony. Without focusing on the admissibility of the suppressed evidence, the Fifth Circuit instead considered how the defense strategy might have changed had the evidence been disclosed. Concluding that the evidence would have been “powerful” impeachment evidence, the Fifth Circuit agreed there had been a Brady violation requiring a new trial.

Each different approach employed by the majority circuits has its benefits and disadvantages. Importantly, however, none of the majority circuits entirely foreclose finding a Brady violation simply because the suppressed evidence is inadmissible. The First, Second, Third, Fifth, Sixth, Eighth, Ninth, and Eleventh Circuits all entertain the possibility of such a violation, and in doing so protect defendants’ due process rights.

The Danger in Conflating Admissibility and Materiality

The danger of the minority the approach utilized by the Fourth and Seventh Circuits is that it conflates admissibility and materiality—two vastly different concepts. The Brady rule is a discovery rule. As a general matter, the scope of discovery is far broader than simply what is admissible. The scope is broader for good reason. At the time discovery is exchanged, the prosecution and defense may not have yet settled on their respective trial theories. Nor, at that juncture, would the trial court have ruled on the admissibility of evidence. Applying a trial admissibility standard during the discovery stage of litigation is illogical and untenable. It asks the parties to settle on a trial strategy and conduct discovery accordingly before any meaningful exchange of information that would enable the selection of such a strategy.

Moreover, reading Wood to severely circumscribe discovery is inconsistent with the general tenor of Brady and its progeny. The Supreme Court has consistently reinforced the broad scope of criminal discovery. In Brady, the Court required not only the disclosure of admissible evidence but all “evidence favorable to an accused.” In Giglio v. United States, the Supreme Court extended the disclosure requirement to impeachment evidence. The relevance of impeachment evidence turns on what evidence the prosecution admits at trial—yet suppression of such evidence can nonetheless result in a new trial. And in Kyles v. Whitley, the Supreme Court held that any suppression that undermines confidence in the outcome of a trial can be grounds for a new trial. Even the appearance of unfairness can be sufficient for a new trial. Notwithstanding the ambiguous dicta in its Wood decision, the Supreme Court has espoused a broader scope of discovery than the Fourth and Seventh Circuit per se rule would suggest.

Finally, and most importantly, the per se rule is fundamentally unfair. All defendants are entitled to due process. Due process can only be achieved then the defense has the necessary evidence. An inadmissible piece of evidence, like the police reports discussed in the opening scenario, can lead to other admissible evidence. Discovery is not a binary process—each document is not exclusively admissible or inadmissible. Each document becomes part of the fabric of a trial strategy. Within even an inadmissible document can be leads to other credible, admissible evidence.

In the opening scenario, disclosure of the police reports might change the defense strategy. Disclosure of the report might prompt the defense to interview the eyewitness, who might now serve as a defense witness. Disclosure of the report might also suggest weaknesses in the initial police investigation of the homicide, providing fertile ground for defense cross examination. As the opening scenario illustrates, even inadmissible evidence can have a tangible impact on the defense. In the interest of fairness, the Fourth and Seventh Circuit should revisit their per se approach to the materiality of inadmissible evidence. While the risks of infringing on the due process in the opening scenario are hypothetical, they are very real for defendants in these two circuits.