The evidence is the heart of any criminal case. We usually think of evidence as evidence that supports (or proves) the allegation that the crime was committed. This is technically called “inculpatory evidence” as it tends to incriminate (or inculpate) the defendant. But what about evidence that tends to exonerate (or exculpate) the defendant? This evidence is called “exculpatory evidence” but it seems we hardly hear about this type of evidence.

In the seminal case, Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court held that in any criminal case, the prosecution has a constitutional duty to reveal to the defense any evidence it has that might show the defendant is innocent of the crime charged or did not commit the crime in the manner charged. This is the defendant’s due process right. This is commonly referred to as Brady evidence or a Brady disclosure and it applies to all California criminal cases.

Brady evidence can be physical evidence, witness statements, video footage, recordings, or any evidence that has a “reasonable probability” of establishing that the defendant did not commit the crime or did not commit the crime to the level charged (for sentencing mitigation purposes). A good example might be evidence that a credible witness to the alleged crime comes forth and states that he saw the police plant evidence. If this were a true statement (and it certainly happens, as the recent incidents in Baltimore have exposed), it is exculpatory and the prosecution must reveal it. But the police would certainly try to cover this statement up, sometimes even with the help of the prosecutor. Hopefully this doesn’t happen often, but it is unfortunate that the prosecution and the police sometimes do suppress exculpatory evidence in furtherance of their own prosecutorial agenda. Orange County had its own Brady evidence scandal a few years ago.

How does a defendant obtain Brady evidence? While it is constitutionally incumbent on the prosecution to provide this exculpatory evidence, it often takes some effort on the part of a good criminal defense attorney to get it. Following the Orange County episode, California passed a law that punishes prosecutors who intentionally withhold exculpatory evidence. While this is a good step, as I discussed previously, the new law may not have teeth.

When a defendant maintains that there is evidence that tends to exonerate him or her, a criminal defense attorney will often file what is called a “Brady motion.” This is more than an ordinary discovery request (usually an informal request for all the evidence the prosecution intends to use in the case). A Brady motion is a formal motion, usually requiring a hearing before the court, that—to put it in the most basic terms—demands evidence that the prosecution might be using “loopholes” to avoid producing. It is, of course, more than that but the motion forces the prosecution to “pony up” or deny they have the evidence or make an argument as to why the evidence is not material. If there is a dispute about the materiality of the evidence, the court will make the decision. If the prosecution alleges the evidence does not exist and it is later discovered that the prosecutor was withholding the evidence, it can result in a reversal of a conviction, a dismissal of charges, a mistrial, or any number of remedies.

In a criminal case, evidence is everything. Orange County criminal defense attorney William Weinberg carefully listens to his client’s story to determine if there is any potential exculpatory evidence. If he believes the prosecution or the police are withholding evidence that could help establish a defense of his client, he will forcefully assert his client’s constitutional right to the evidence. Mr. Weinberg is available to discuss your criminal matter free of charge. If you believe the prosecution is withholding exculpatory evidence, Mr. Weinberg invites you to contact him for his opinion. You may reach him at his Irvine office by calling (949) 474-8008 or by emailing him at bill@williamweinberg.com