Hidin MARK MILLER and MARK KILCHESKY is CRIMINAL
The Brady decision requires prosecutors to disclose evidence that “is material either
to guilt or to punishment.”12 In 1963, materiality was a doctrine of evidence – tied to the
question of relevance. The distinction between materiality and relevance was a subtle one.
The drafters of the Federal Rules of Evidence eliminated the term and embodied the concept
of materiality in Rule 401(b) as a “fact of consequence.” A fact of consequence is any fact
that is important for deciding the case. It does not have to be an element of the crime. As the Advisory Committee Note explains, “The fact to be proved may be ultimate, intermediate, or
evidentiary; it matters not, so long as it is of consequence in the determination of the action.”
In 1963, under any standard of materiality, the fact that someone else had done the killing
was certainly material to whether Brady deserved to be put to death.
In United States v. Bagley, 473 U.S. 667 (1985), the Court shifted the meaning of
materiality to mean evidence that could have affected the outcome. As the Second Circuit
has recognized, the Supreme Court has shifted the prosecutor’s duty from an easy, evidence-
based test of materiality to a difficult result-affecting test. United States v. Coppa, 267 F.3d
132 (2d Cir. 2001). The Supreme Court in Kyles v. Whitley gave some general guidance
when it wrote, “This means, naturally, that a prosecutor anxious about tacking too close to
the wind will disclose a favorable piece of evidence.” 540 U.S. 419, 439 (1995). However,
that hardly provides much guidance at all. Bagley and Kyles create a nearly impossible
standard to apply pretrial. In most cases, it is difficult to say in advance what might affect the
outcome of a trial. That revelation often only appears mid-trial. Disclosure then may be too
late, and, in any event, it will shift the entire focus to the prosecutor’s failure to disclose
earlier instead of the defendant’s conduct.
