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Mid-trial Disclosure of Brady Material May Violate Due Process

By Shari Allison

United States v. Burke, ___ F.3d ___, 2009 WL 1926850 (10th Cir. 2009)Clarifying older case law that might have implied differently, the Court holds that belated, mid-trial disclosure of impeachment or exculpatory information per Brady violates due process, if it is shown that an earlier disclosure would have created a reasonable doubt of guilt. The defense must articulate to the court why the delay is materially prejudicial. The district court then has discretion to determine an appropriate remedy: exclusion of the witness, limitations on the scope of testimony, instructions to the jury, or even mistrial. Although a Brady violation, Defendant failed to articulate why the disclosure during government examination of its own witness of witness?s plea agreement with government materially prejudiced him so that the sanction of striking his testimony would be appropriate...continue to full post

Full post as published by Tenth Circuit Blog on July 10, 2009 (boomark / email).