Skip to Main Content

Did the Prosecution Commit a Brady Violation?

In the United States, police departments perform most of the investigations into criminal activity. This investigation can include interviewing witnesses, collecting physical evidence like blood or hairs, and performing DNA tests.

Along the way, the police find evidence that tends to help the defendant. What do they do with this evidence? Although Houston PD might be tempted to put this evidence in a locked drawer, the Constitution requires that they take other steps. Instead, the prosecution has a duty to turn over evidence that is exculpatory—that is, evidence that shows a defendant isn’t guilty.

When the prosecution doesn’t turn over evidence upon request, they have committed what’s called a Brady violation. The name comes from a famous 1963 Supreme Court case, Brady v. Maryland. Our Houston criminal defense attorneys are well versed on Brady violations, and we can point them out to a judge. It is possible to get a case dismissed or a conviction overturned, depending on the facts.

Examples of Brady Violations

Here are some examples of what the prosecution should turn over:

  • Physical evidence that casts doubt on the defendant’s guilt. For example, the defendant’s DNA might not have been found on a rape victim. The absence of DNA is some evidence that the defendant didn’t commit the crime.
  • Evidence that shows someone else committed the crime. For example, hair or DNA belonging to someone else might have been found on the rape victim. Police should turn this over.
  • Any evidence that discredits a victim’s story. An assault victim might claim that a defendant came up out of the blue and punched them. But a witness might have seen the victim swing first, so police should tell the defense about this witness.
  • Reports or records suggesting the defendant did not commit the crime. A police report might mention witnesses who saw someone else rob a store.
  • The prosecution also must turn over evidence that casts doubt on witnesses or even the prosecution itself:
  • Evidence of police misconduct, such as physically coercing witnesses to testify. Police misconduct casts doubt on the credibility of evidence.
  • Information that undermines the truthfulness of a witness. A witness who is lying is less credible to a jury.

Any deal between the prosecution and a witness or informant. Because of the deal, a witness might have a motive to alter their testimony.

How Do Lawyers Uncover Brady Violations?

If the prosecution or police hide evidence, how do lawyers ever uncover it? There are a few ways.

In some cases, a police report will mention a stray witness, but we never receive any information about that person. When we finally track them down, we find out they had helpful testimony for our client and, what’s more, they told the police. So the prosecution should have told us about this person.

Some witnesses reveal helpful information on the witness stand that we never heard before. We can probe further about whether they shared this exculpatory information with the police or prosecution.

In other situations, the prosecution will make a very late disclosure and claim they “forgot” to hand it over earlier. This is an attempt to sandbag the defense by giving us less time to use helpful evidence.

At Tad Nelson & Associates, we know how to file a “Brady motion,” requesting that the prosecution hand over helpful or exculpatory evidence. A judge will hold a hearing to determine whether the prosecution has evidence.

Consequences of a Brady Violation

When the prosecution fails to disclose evidence, we might seek any of the following:

  • A mistrial. A judge might have no choice but to stop a trial and dismiss the jury. Of course, the prosecution can continue with the charges going forward, but at least the current trial stops.
  • A dismissal of charges. This is an extreme step, but some egregious Brady violations support it.
  • A reversal of any conviction. We might ask an appellate court to reverse a conviction for the failure to hand over helpful information.
  • Charges for prosecutorial misconduct. Some violations might be accidental. But when a prosecutor deliberately hides evidence, they should face charges themselves.

Our firm is committed to protecting our client’s right to Due Process under the Constitution. If you are denied a fair trial, we will seek all possible remedies. You should not be behind bars if the prosecutor hid evidence.

Call to Speak with a Houston Criminal Defense Attorney

Our law firm carefully reviews all evidence and has caught more than one prosecutor failing to fulfill their Brady obligations. If you are facing criminal charges, please call us to find out if we can represent you.