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  • Full Disclosure of Evidence Favorable to the Defense
Full Disclosure of Evidence Favorable to the Defense May 29, 2013

In recent years, Texas has received much media attention regarding allegations of misconduct by government authorities in the prosecution of criminal cases. In response, the Texas Court of Criminal Appeals and the State Bar of Texas have worked together to produce a 58-minute video based on the watershed U.S. Supreme Court case of Brady v. Maryland. Brady concerned the suppression, by the prosecution, of evidence favorable to an accused. It held such suppression Due Process of Law Means Disclosing Evidence Favorable to the Defenseviolated due process where the evidence was material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. “Brady: A Simple Approach” is a training video developed for law enforcement and prosecutors to help them identify evidence favorable to the defense and to develop systems to fully disclose this evidence to the citizens accused of crime. A qualified Bryan-College Station lawyer can help an accused identify exculpatory evidence.


Some key points in the video include:

1. Even though police reports are privileged work-product and protected from disclosure, the duty to reveal exculpatory evidence overrides the work-product privilege;

2.  Knowledge of possession of exculpatory evidence by the State is imputed to prosecutors through the police and other State agents;

3.  The prosecutor has a duty to learn of favorable evidence known to others acting on the government’s behalf;

4.  Favorable evidence includes exculpatory and impeachment evidence;

5.  Evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different;

6.  There is no “good faith” exception to the duty to disclose;

7.  The duty to disclose material, favorable evidence continues post-conviction; and

8.  Due process requires reversal if the State, regardless of whether the defense made a request, failed to disclose evidence favorable to the defense.


A hat-tip to the State Bar and CCA for developing a training tool paving the way to reform of a justice system in need of repair.


Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.


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