300 Tuolumne Street, Vallejo, California 94590

Discovery and Brady Materials

In accordance with the due process clause of the United States Constitution, the government has an obligation to provide a defendant, upon his request, known as a Brady request, all evidence in its possession that is favorable to the defendant and material to the case against the defendant. If the Government fails to disclose the requested information to the defendant, a new trial may be required.

Government’s Obligation

Even though the obligation attaches when the defendant requests disclosure of evidence, the government is not required to disclose every piece of evidence that may be used by the defendant. The defendant should make his Brady request as specific as possible to ensure that he will receive all of the evidence pertaining to his request. If the government fails to disclose the requested evidence to the defendant, he will be required to show that the evidence exists and that evidence is material to his case in order to compel disclosure from the government.

Due Process Violation

A due process violation occurs if the government fails to disclose exculpatory evidence that is within its knowledge and control. Although the due process clause requires the government to learn of any favorable evidence possessed by third parties, the government is not required to provide evidence that it does not possess. However, if another governmental agency has possession of the evidence, that possession is required to be disclosed within the Brady doctrine. Furthermore, the government is only required to disclose information that is known to it at the time the information is requested by the defendant. The evidence must be material to an issue in the defendant’s case. Evidence is considered material if there is a reasonable probability that its disclosure would have changed the verdict.

Suppression of Evidence

If the defendant has reasonable access to the evidence before the defendant’s trial, the evidence was not improperly suppressed by the government. For Brady purposes, evidence may be deemed suppressed if:


  • the government fails to disclose the evidence until it was too late for the defendant to use the evidence with respect to his trial and
  • the evidence was unavailable to the defendant by means of reasonable diligence in his preparation for trial.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.


Contact Form

We will respond to your inquiry in a timely fashion. Thank you.

Quick Contact Form