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U. S. SUPREME COURT REPORTS 33 L Ed 2d 

[408 US 786] 
LYMAN A. MOORE, Petitioner, 

v 

STATE OF ILLINOIS 

408 US 1786, 33 L Ed 2d 706, 92 S Ct 2562, reh den 409 US 897, 

24 1. Ed 24 155,93 8 -Ct 87 

[No. 69-5001] 

Argued January 18, 1972. Decided June 29, 1972. 

SUMMARY 

After a trial in the Circuit Court, Cook County, Illinois, the accused 

was convicted of murder, with the death penalty imposed by the jury. 

At a postconviction hearing, he claimed that he was denied a fair trial 

because the state suppressed (1) a state witness’ misidentification of 

him as a man known as “Slick,” statements by two other persons that 

he was not “Slick,” a police lieutenant’s unsuccessful attempts to find 

“Slick,” and the witness’ statement on the day of the trial that “Slick” 

looked different from the accused, and (2) a policeman’s diagram of 

the seating arrangement at the bar-restaurant murder scene, showing 

that the door through which the accused allegedly entered was behind a 

state eyewitness’ chair. He also argued that a 16-gauge shotgun in his 

possession at the time of his arrest was improperly received in evidence 

because the state ballistics technician’s opinion was that the victim was 

killed by a 12-gauge shotgun shell. The trial court denied the petition 

for postconviction relief, and the Supreme Court of Illinois affirmed both 

the conviction and the denial of postconviction relief (42 Ill 2d 73, 246 

NE2d 299). 

On certiorari, the United States Supreme Court reversed the judgment 

insofar as it imposed the death penalty, and remanded the case for further 

proceedings. In an opinion by BLACKMUN, J., expressing the views of 

five members of the court, it was held that the accused was not denied due 

process, because the evidence described in (1) above was not material to 

the issue of guilt, in the light of all the evidence; the diagram did not 

show the prosecution witness’ testimony to be false; and the introduc- 

tion of the shotgun was not so irrelevant or inflammatory as to deny the 

accused a fair trial. However, the court also ruled that the death penalty 

could not be imposed. 

MARSHALL, J., joined by DoUGLAS, STEWART, and PowkLL, JJ., con- 

curring in part and disdenting in part, agreed that the death penalty could 

Briefs of Counsel, p 980, infra. 
[33 L Ed 2d] 

not be impose: 
not violate tl 
in (1) above 

that the failu: 

process. 

Constitutional | 

ess — evide 

1. The prose: 

evidence, in the 

duction request 

where the evide:! 

accused and is n 

or to punishmen' 

Constitutional | 

ess — evide 
2. A state w= 

tion of the accus 
“Slick,” stateme 

sons that the acc 

police lieutenan 

tempts to find 

ness’s statemen 

trial that “Slick’ 

the accused, are 
issue of guilt w 

the rule that t! 

pression of evid: 

defense product: 

  

TOTAL 

21 AM Ji 

8 AM JU 

Form < 

I'S 1, Fi 

ALR Dic 

L Ep IN 

ALR Qui 

FEDERAL 

Conviction or 
prosecution to 
of due process 
L Ed 2d 1991.   
   



    

33 L Ed 2d 

409 US 897, 

972. 

s, the accused 
1 by the jury. 
:d a fair trial 
entification of 

¢ persons that 

‘empts to find 
1 that “Slick” 

's diagram of 

cene, showing 
was behind a 

shotgun in his 
ad in evidence 

he vietim was 
d the petition 

. affirmed both 
11 2d 73, 246 

the judgment 
ise for further 

the views of 

not denied due 
ot material to 
gram did not 

the introduc- 
's to deny the 
death penalty 

ELL, JJ., con- 

penalty could 

[33 LL Ed 2d] 

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MOORE v ILLINOIS 707 
408 US 786, 33 1. Ed 2d 706, 92 S Ct 2562 

not be imposed and that the introduction of the shotgun into evidence did 
not violate the Fourteenth Amendment, but declared that the evidence 
in (1) above was both material and absolutely critical to the defense, and 

that the failure to disclose the diagram contributed to the denial of due 
process. 

HEADNOTES 

Classified to U. S. Supreme Court Digest, Annotated 

Constitutional Law § 840 — due proc- 

ess — evidence 

1. The prosecution’s suppression of 

evidence, in the face of a defense pro- 

duction request, violates due process 

where the evidence is favorable to the 

accused and is material either to guilt 

or to punishment. * 

Constitutional Law § 840 — due proc- 
ess — evidence 

2. A state witness’s misidentifica- 

tion of the accused as a man known as 

“Slick,” statements by two other per- 

sons that the accused was not “Slick,” a 

police lieutenant’s unsuccessful at- 

tempts to find “Slick,” and the wit- 

ness’s statement on the day of the 

trial that “Slick” looked different from 

the accused, are not material to the 

issue of guilt within the meaning of 

the rule that the prosecution’s sup- 

pression of evidence, in the face of a 

defense production request, violates 

due process where the evidence is 

favorable to the accused and is ma- 

terial either to guilt or to punishment. 

Constitutional Law § 840 — due proc- 

ess — false testimony 

3. Under the rule that a prosecu- 

tor’s failure to correct testimony which 

he knows to be false violates the ac- 

cused’s right to due process of law, 

a policeman’s diagram of the seating 

arrangement at a card table in a bar- 

restaurant which was the murder 

scene does not show that a prosecution 
witness’s testimony concerning his 

view of the murder was false, although 

the diagram shows the witness seated 

with the door behind him, where the 

diagram does not indicate the direc- 

tion in which the witness was facing 

or looking at the time of the murder, 

and the witness testified that his posi- 

tion at the table gave him a view of 
the bartender-victim, and that he could 

  

Form 201 

L Ed 2d 1991.   

TOTAL CLIENT-SERVICE LIBRARY® REFERENCES 

21 AM Jur 2d, Criminal Law § 225 

8 AM JUR PL & Pr ForMS (Rev ed), Criminal Procedure, 

US L Ep DIGEST, Constitutional Law § 840 

ALR DiGesTs, Constitutional Law § 669.5 

L Ep INDEX TO ANNO (Rev ed), Due Process of Law 

ALR Quick INDEX, Due Process of Law 

FEDERAL QUICK INDEX, Due Process of Law 

ANNOTATION REFERENCES 

Conviction on testimony known to 
prosecution to be perjured as denial 
of due process. 2 L Ed 2d 1575, 3 

Withholding or suppression of evi- 
dence by prosecution in criminal case 
as vitiating conviction. 34 ALR3d 16.   

  

  

  

    



  

708 U. S. SUPREME COURT REPORTS 

not bid in the card game at the mo- 

ment, had laid his hand down, and was 

looking toward the door when the ac- 

cused walked in, and where nothing 
in the diagram indicates that the wit- 

ness was looking in another direction 

or that it was impossible for him to see 

the nearby door from his seat at 

the card table. 

Appeal and Error § 806.5 — state evi- 

dence rule 

4. The issue whether a shotgun was 

properly admitted into evidence under 

Illinois law is not subject to review 

by the United States Supreme Court. 

Appeal and Error § 441 — raising fed- 
eral question 

5. On certiorari to review a state 

murder conviction, the United States 

Supreme Court can conclude that a 

due process claim is not properly pre- 

sented for review where due process 

was not argued in the state courts 

and is raised for the first time before 

the Supreme Court. 

Constitutional Law § 840 — due proc- 

ess — evidence 

6. The introduction of a 16-gauge 

shotgun into evidence in a state mur- 

der prosecution does not deprive the 

accused of the due process of law guar- 

  

33 L Ed 2d 

anteed to him by the Fourteenth 
Amendment, despite the state’s conces- 

sion that its ballistics technician, if 

called, would testify that in his opin- 

ion the waddings taken from the viec- 
tim’s body came from a 12-gauge shot- 

gun shell, where the 16-gauge shotgun 

was in the accused’s constructive pos- 
session when he was arrested and 

there was substantial other evidence 

in the record that a shotgun was used 

to kill the victim, and that he suf- 

fered the wounds one would expect 

from a shotgun fired at close range. 

Appeal and Error § 1656; Criminal 

Law §§ 82, 83 — moot questions 

7. On certiorari to review an Il- 

linois murder conviction, with the 

death penalty imposed by the jury, in 

which the accused claims as error the 

rejection of six veniremen who had 

voiced general objections to capital 

punishment, the United States Su- 

preme Court need not review the ac- 

cused’s claim, because the rejection of 

the veniremen could invalidate the 

sentence but not the conviction, and 

the death penalty cannot be imposed 
since the imposition of the death penal- 

ty under statutes like those of Illinois 

violates the Eighth and Fourteenth 

Amendments. 

SYLLABUS BY REPORTER OF DECISIONS 

Moore, who was convicted of 

murder and sentenced to death for the 

shotgun slaying of a bartender at a 

Lansing, Illinois, tavern, claimed that 

he was denied a fair trial and due proc- 

ess because the State failed to make 

pretrial disclosure of several items of 

evidence helpful to the defense, failed 
to correct false testimony of one 

Powell, and succeeded in introducing 

into evidence a shotgun that was not the 

murder weapon. The evidence not dis- 

closed consisted of a pretrial statement 

by one Sanders that Moore was 

known to him as “Slick” and that he 

had first met “Slick” some six months 

before the killing, and documents and 

testimony that established that Moore 

was not the man known to others in 

the area as “Slick.” Powell testified 

that he observed the killing, and the 

State did not introduce into evidence 

  

a diagram that, Moore claims, il- 

lustrates that ‘Powell did not see the 

shooting. The State Supreme Court 

rejected the claim that evidence had 

been suppressed and false evidence 

had been left uncorrected, and held 

that the shotgun was properly admit- 

ted into evidence as a weapon in 

Moore’s possession when he was ar- 

rested and suitable for commission of 
the crime charged. Moore also attacked 

the imposition of the death penalty 

for noncompliance with the standards 

of Witherspoon v Illinois, 391 US 510, 

20 1. Bd 2d 776, 88 S Ct 1770. Held: 
1. The evidentiary items (other than 

the diagram) on which Moore bases his 

suppression claim relate to Sanders’ 
misidentification of Moore as “Slick” 

and not to the identification, by San- 
ders and others, of Moore as the person 

who made incriminating statements 

0 
i 

in the Pondero: 

tiary items are 

standard of Brac 

83, 10 LL Ed 2d 2 

diagram does no! 

tention that the { 
ted false testimo: 

ed, in violation © 

US 264, 3 L Ed 
since the diagra 

it was impossibl 

shooting. 
2. Moore's due 

shotgun was not 

therefore is not 

Court, and in an) 

James J 
Thomas 

Briefs ¢ 

[40 

Mr. Justice 

the opinion of 

This state n 

death penalty 
comes here fro 
of Illinois. Tk 

403 US 953, 2 

Ct 2280 (1971) 
of four questi 

petition. The: 
closure to the 
exculpatory e 
the prosecutio 

admission into 
gun that was 1 

on; and the 1: 
niremen who 

objections to 
The first and 

tively focus o 

Brady v 
[40 

Mary 

Ld 2d 215, ¢ 
and Withersp: 

510, 20 LL Ed 

(1968). 

Petitioner 1



33 L Ed 2d 

the Fourteenth 
the state’s conces- 
ics technician, if 
that in his opin- 

ken from the vic- 
n a 12-gauge shot- 
16-gauge shotgun 
constructive pos- 
as arrested and 

al other evidence 
shotgun was used 
and that he suf- 
ne would expect 
at close range. 

§ 1656; Criminal 
- moot questions 

0 review an II- 
iction, with the 

d by the jury, in 
aims as error the 
'iremen who had 
tions to capital 
ited States Su- 
t review the ac- 

e the rejection of 
I invalidate the 
conviction, and 

nnot be imposed 
{ the death penal- 
those of Illinois 
and Fourteenth 

ore claims, il- 
did not see the 
Supreme Court 

at evidence had 
false evidence 

ected, and held 
properly admit- 

a weapon in 
hen he was ar- 
r commission of 
ore also attacked 

death penalty 
h the standards 
ois, 391 US 510, 
Ct 1770. Held: 
¢ms (other than 
Moore bases his 
te to Sanders’ 
ore as “Slick” 
ation, by San- 

'e as the person 
‘ng statements 

  

     

    

  

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     MOORE v ILLINOIS 709 
408 US 786, 33 L Ed 2d 706, 92 S Ct 2562 

in the Ponderosa Tap. These eviden- 

tiary items are not material under the 

standard of Brady v Maryland, 373 US 

83, 10 L. Ed 2d 215, 83 S Ct 1194. The 
diagram does not support Moore’s con- 

tention that the State knowingly permit- 
ted false testimony to remain uncorrect- 

ed, in violation of Napue v Illinois, 360 

US 264, 3 1. Ed 24 1217, 79 S Ct 11173, 
since the diagram does not show that 

it was impossible for Powell to see the 

shooting. 

2. Moore’s due process claim as to the 

shotgun was not previously raised and 

therefore is not properly before this 

Court, and in any event the introduction 

of the shotgun does not constitute fed- 

erally reversible error. 

3. The sentence of death may not be 

imposed on Moore. Furman v Georgia, 

408 US 238, 33 L, Ed 2d 346, 92 S Ct 

2726. 42 111 2d 73, 246 NE2d 299, re- 

versed in part and remanded. 

Blackmun, J., delivered the opinion 

of the Court, in which Burger, C. J., 

and Brennan, White, and Rehnquist, JJ., 

joined. Marshall, J., delivered an opin- 

ion concurring in part and dissenting 

in part, in which Douglas, Stewart, and 

Powell, JJ., joined, post, p 800, 33 LL Ed 

24 p 716. 

APPEARANCES OF COUNSEL 

James J. Doherty argued the cause for petitioner. 
Thomas J. Immel argued the cause for respondent. 

Briefs of "Counsel, p 980, infra. 

OPINION OF THE COURT 

[408 US 787] 

Mr. Justice Blackmun delivered 

the opinion of the Court. 

This state murder case, with the 

death penalty imposed by a jury, 

comes here from the Supreme Court 
of Illinois. The grant of certiorari, 

403 US 953, 29 1. Ed 2d 864, 91 S 
Ct 2280 (1971), was limited to three 

of four questions presented by the 
petition. These concern the nondis- 
closure to the defense of allegedly 

exculpatory evidence possessed by 

the prosecution or the police; the 
admission into evidence of a shot- 
gun that was not the murder weap- 
on; and the rejection of eight ve- 

niremen who had voiced general 
objections to capital punishment. 

The first and third issues respec- 
tively focus on the application of 
Brady v 

[408 US 788] 

Maryland, 373 US 83, 10 
L.Ed 24 215, 83 8S Ct 1194 (1963), 
and Witherspoon v Illinois, 391 US 
510, 20 1,- Bd 24 776,88 S Ct 1770 
(1968). 

I 

Petitioner Lyman A. Moore was 

  

convicted in 1964 of the first-degree 
murder of Bernard Zitek. Moore's 

appeal to the Supreme Court of Illi- 

nois was held in abeyance while he 
petitioned the trial court for post- 
conviction relief. After a hearing 

in January 1967, that petition was 
denied. Moore’s appeal from the de- 
nial was consolidated with his ap- 
peal from the conviction and sen- 

tence. With one justice dissenting 
and another not participating, the 
Illinois court affirmed the judg- 

ments. 42 Ill 2d 73, 246 NE2d 299 

(1969). 

IT 

The homicide was committed on 
April 25, 1962. The facts are im- 
portant: 

A. The victim, Zitek, operated a 
bar-restaurant in the village of Lan- 
sing, southeast of Chicago. Patricia 
Hill was a waitress there. Donald 
O’Brien, Charles A. Mayer, and Hen- 

ley Powell were customers. 

Another bar called the Ponderosa 

Tap was located in Dolton, also 
southeast of Chicago. It was owned 

  
  



  

710 U. S. SUPREME COURT REPORTS 

by Robert Fair. William Joyce was 
the bartender. One of Fair’s cus- 

tomers was Virgle Sanders. 

A third bar known as Wanda and 
Del’s was in Chicago. Delbert Jones 

was the operator. William Leon 
Thompson was a patron. 

The Westmoreland Country Club 

was in Wilmette, about 50 miles 

north of Lansing. The manager 

there was Herbert Anderson. 

B. On the evening of April 25 

Zitek was tending bar at his place 

in Lansing. Shortly before 10 p. m. 
two men, one with a moustache, en- 
tered and ordered beer. Zitek ad- 

monished the pair several times for 

using profane 
[408 US 789] 

language. They con- 

tinued in their profanity and, short- 

ly, Zitek ejected them. About an 
hour later a man carrying a shot- 

gun entered. He laid the weapon 

on the bar and shot and killed Zitek. 
The gunman ran out, pursued by 

patrons, and escaped in an automo- 

bile. 

C. At the trial waitress Hill posi- 

tively identified Moore as one of the 

two men ejected from the bar and 
as the one who returned and killed 

Zitek. She testified that she had a 
clear and close view from her work- 

ing area at the bar and that she 
observed Zitek’s ejection of the two 

men and the shotgun killing an hour 

later. 

D. A second in-court identifica- 

tion of Moore as the man who killed 
Zitek was made by the customer 

Powell. Powell, who at the time 

was playing pinochle with others, 
testified that he observed Moore en- 
ter the bar with a shotgun and shoot 

Zitek:; that after the shooting he 
pursued Moore; and that outside the 

bar Moore stopped momentarily, 
turned, and shouted, “Don’t come 

any further or I'll shoot you, too.” 

  

33 L Ed 2d 

E. Sanders testified that on April 
27, two days after the murder, he 

was in the Ponderosa Tap and that 
a customer there, whom Sanders 
identified as “Slick,” remarked to 

Sanders that it was “open season 

on bartenders” and that he had shot 
one in Lansing. At the trial San- 

ders identified Moore as the man 
who was in the Ponderosa Tap on 

April 27. Moore was with another 
man who had a moustache. The two 
asked for a ride to Harvey, Illinois. 
The owner, Fair, agreed to give 

them the ride. 

F. Fair testified that Moore was 

one of the two men who requested 

and were given the ride; that during 
the journey one of them was re- 

ferred to as “Barbee”; and that one 

said “something like, ‘Well, if we 
hadn’t had that trouble with the 

bartender in Lansing, we'd have 

been all right.” ” 

G. The Ponderosa bartender, 

Joyce, testified that Sanders 
[408 US 790] 

and 

Fair were in that tavern on April 

27: that Moore was there at the 

same time; and ‘that he arranged 
with Fair for Fair to give Moore 

and his companion a ride. 

It is thus apparent that there 

were positive in-court identifications 
of Moore as the slayer by the wait- 
ress Hill and by the customer Pow- 

ell, and that there were in-court 
identifications of Moore as having 

been present at the bar in Dolton 
two days later by Sanders, by Fair, 

and by Joyce. 

H. Six months after the slaying, 
in the early morning hours of Octo- 
ber 31, 1962, a Chicago police officer 
was shot at from a 1957 Ford auto- 
mobile. Two men fled the scene. The 
police “staked out” the car, and sev- 
eral hours later Moore and a mous- 

tached man, later identified as Jerry 
Barbee, were arrested when they ap- 

EE i a a 1X 0 SSS a RR GARDE © Ite SH 3° SERDAR SHEE [1 SRS Nes   

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proached and 
The automobile 

by Barbee. A 
off 16-gauge s 

car.! The shot 
in evidence at 

State conceded 
troduced was n: 
on, and that t 
technician, if « 

that the wadd: 
tek’s body cam 

a 12-gauge sho: 

I. The defer 

Anderson of 
Country Club a 
tified that Moo: 

a waiter there : 
before the mu 

records indicat 
cial party at th 

of April 25: 

paid for workin 
[40 

tween 10 p.m 

club’s bartend 

same effect. 

nesses nevert! 

he could not re 

at the club tha 

he would have 

absent for ar 

of time. The 

dicated that 

club the aftern 

according to ft 

ders, Fair, and 

the Ponderos:: 

J O'Brien, 

tek’s, testified 

he observed Zi 

evening of the 
  

1. This early 
counted in an « 

Barbee for an » 

Illinois, on July © 

35 Ill 2d 399, 40! 
445 (1966), ceri 

L Ed 2d 128, 88 
2. A revolver



  

33 L Ed 2d 

ied that on April 
the murder, he 

sa Tap and that 
whom Sanders 

kK,” remarked to 

as “open season 

that he had shot 
\t the trial San- 
ore as the man 
onderosa Tap on 

vas with another 
istache. The two 

Harvey, Illinois. 

agreed to give 

that Moore was 
n who requested 

ride; that during 

f them was re- 
2”; and that one 

ke, ‘Well, if we 

rouble with the 
ing, we'd have 

'0sa bartender, 
at Sanders 
s 790] 

and 
tavern on April 
as there at the 
hat he arranged 

r to give Moore 

a ride. 

«rent that there 
irt identifications 

yer by the wait- 

ie customer Pow- 

e were in-court 
Vloore as having 

ie bar in Dolton 
sanders, by Fair, 

fter the slaying, 
ig hours of Octo- 

-ago police officer 
1957 Ford auto- 

~d the scene. The 
the car, and sev- 
ore and a mous- 

ientified as Jerry 

od when they ap- 

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MOORE v ILLINOIS 711 
408 US 786, 33 L Ed 2d 706, 92 S Ct 2562 

proached and entered the vehicle. 
The automobile proved to be owned 

by Barbee. A fully loaded sawed- 
off 16-gauge shotgun was in the 

car.! The shotgun was introduced 
in evidence at Moore’s trial.2 The 

State conceded that the gun so in- 

troduced was not the murder weap- 
on, and that the State’s ballistics 
technician, if called, would testify 

that the waddings taken from Zi- 
tek’s body came, in his opinion, from 

a 12-gauge shotgun shell. 

I. The defense called manager 
Anderson of the Westmoreland 

Country Club as a witness. He tes- 
tified that Moore had been hired as 

a waiter there on April 24 (the day 
before the murder) ; that the club 

records indicated there was a spe- 

cial party at the club on the evening 
of April 25; and that Moore was 

paid for working 
[408 US 791] 

until sometime be- 

tween 10 p. m. and midnight. The 

club’s bartender testified to the 

same effect. Each of these wit- 

nesses nevertheless admitted that 

he could not remember seeing Moore 

at the club that night, but said that 

he would have known if he had been 

absent for any substantial period 

of time. The club records also in- 

dicated that Moore worked at the 

club the afternoon of April 27, when, 

according to the testimony of San- 

ders, Fair, and Joyce, Moore was at 

the Ponderosa Tap in Dolton.® 

J. O’Brien, the customer at Zi- 

tek’s, testified for the defense that 

he observed Zitek eject two men the 
evening of the 25th, and that Moore 

was not one of them. Although he 
was in the restaurant at the time of 
the homicide, he did not see the per- 
son who shot Zitek. A police officer 

testified that in his opinion O’Brien 

was drunk at the time. 

III 

Prior to the trial, the defense 
moved for disclosure of all written 

statements taken by the police from 
any witness. The State agreed to 

furnish existing statements of pros- 
ecution witnesses. At the post-con- 
viction hearing, Moore argued, and 
the claim is presented here, that he 

was denied a fair trial because six 

items of evidence, unknown to him 

at the time of the trial, were not 
produced and, in fact, were sup- 
pressed by the State: 

A. On April 30, 1962, Sanders 

gave a statement to the police that 
he had met the man “Slick” for the 
first time “about six months ago” 

in Wanda and Del’s tavern. Testi- 
mony at the post-conviction hearing 

by Lieutenant Turbin of the Lan- 
sing Police Department revealed 

that at the time of trial the police 
possessed an FBI report 

[408 US 792] 

that Moore 
was in Leavenworth Penitentiary 
from 1957 to March 4, 1962. That 

report thus proved that Sanders 

could not have met Moore at Wanda 
and Del’s in November 1961. The 
defense was not given a copy of the 

statement made by Sanders. The 
prosecuting attorney asserted at the 
post-conviction hearing that he did 

not recall having seen the statement 
before or during the trial. 

  

1. This early morning incident was re- 
counted in an earlier trial of Moore and 
Barbee for an armed robbery at Harvey, 
Illinois, on July 27, 1962. People v Moore, 
35 Ill 2d 399, 401-402, 220 NE2d 443, 444- 
445 (1966), cert denied, 389 US 861, 19 
L Ed 2d 128, 88 S Ct 112 (1967). 

2. A revolver found at Moore’s feet at 

the time of his arrest and a shoulder 
holster then on his person were ruled in- 
admissible. 

3. A like alibi defense was submitted at 
the earlier armed robbery trial of Moore 
and Barbee. People v Moore, 35 Ill 2d, at 
406, 220 NE2d, at 447.    

 



   
B. On the day Sanders gave his 

statement, that is, on April 30, the 
police raided Wanda and Del’s look- 

ing for “Slick.” “Slick” was not 
there, but Jones, the tavern’s oper- 
ator, said that he could identify 

“Slick.” After Moore was arrested, 

Jones was not asked by the police 
whether Moore was “Slick.” The 
defense was not advised of the raid 
until after the trial. At the post- 

conviction hearing Jones testified 
that Moore was not “Slick.” His 

testimony, however, was stricken on 

the ground that it pertained to in- 

nocence or guilt and was not admis- 
sible upon collateral review. 

C. After the raid on Wanda and 
Del’s, the police secured from their 
files a picture of James E. “Slick” 
Watts and assigned Lieutenant Tur- 
bin the task of finding Watts. His 

search was unsuccessful. Moore as- 
serts that the attempt to find Watts 

was not made known to the defense 
until cross-examination of the Lan- 

sing police chief at the post-convie- 

tion hearing. 

D. After Moore was arrested on 

October 31, he was photographed by 
the police. The photograph was 

shown to William Leon Thompson, 
the patron of Wanda and Del’s. 
Thompson testified at the post-con- 
viction hearing that he told Lieuten- 

ant Turbin that the picture “didn’t, 

to the best of my knowledge, resem- 

ble the man that I knew’ as “Slick.” 
He identified a picture of Watts as 

“the Slick I know.” Defense coun- 
sel testified that through the course 

of the trial neither the police 
[408 US 793] 

nor 

the prosecutor advised them about 
Thompson and his disclaimer. 

[. At the start of the trial San- 

ders observed Moore for the first 

time since the alleged bragging in- 
cident at the Ponderosa Tap. San- 
ders remarked to the prosecuting 

  

712 U. S. SUPREME COURT REPORTS 

  

33 L Ed 2d 

attorney and to police officers who 
accompanied him into the courtroom 
that the person he knew as “Slick” 

was about 30-40 pounds heavier 

than Moore and did not wear glasses. 

One of the officers responded, “Well, 

you know how the jailhouse beans 

are.” Moore contends that he and 
defense counsel were not advised 
of this remark of Sanders until after 

the trial had concluded. 

F. Mayer, one of the card players 
at Zitek’s at the time of the murder, 

gave the police a written statement. 

On the back of the statement Officer 
Koppitz drew a sketch of the seat- 

ing arrangement at the card table. 
The diagram shows that the corners 
of the table pointed north, south, 
east, and west. Cardplayer Powell 

was placed on the southwest side. 
The bar was about 10 feet north of 

the table. The door was to the 

southwest. Moore argues that the 
diagram is exculpatory and contra- 
dicts Powell’s testimony that he ob- 
served the shooting. Defense coun- 

sel testified that they were not 
shown the diagram during the trial. 

Moore argues, as to the first five 
items, that the State did not comply 

with the general request by the de- 

fense for all written statements giv- 

en by prosecution witnesses; that 
the State failed to produce the pre- 

trial statement of Sanders and the 
other evidence contradicting San- 

ders’ identification of Moore as 

“Slick”; and that the evidence not 
produced was material and would 

have been helpful to his defense. 

The Illinois court held that the 

State had not suppressed material 
evidence favorable to Moore, that 

the 
' [408 US 7941] 

record shows that the prosecu- 

tion presented its entire file to de- 
fense counsel, and that no further 
request for disclosure was made. 42 
Ill 2d, at 80-81, 246 NE2d, at 304. 

  

Moore submits 
claim that a si 
an “indispensa 

the disclosure 

dence by the 
defense could 
make a request 
that it did not 
ence. 

In Brady v I 

10 LL Ed 2d 215, 
the petitioner a 
found guilty b. 

gree murder ai 
death. In hig 
jury, Brady’s c 
Brady was gui! 
the jury shoul 

“without capita 
or to the trial, ¢ 

that the prose: 
examine the co: 
dicial statemen 
were produced 
which the codef 

actual homicide 

did not come to 
after his convic 
viction procee 

Court of Appe« 
nied Brady due 
remanded the c: 

issue of punisi 
affirmed. It he 
sion by the pro 

favorable to an 

violates due pr: 

dence is materi 
to punishment, 
good faith or b: 

ecution.” 373 
2d at 218. 

[1] The hea: 
Brady is the ps 
sion of eviden« 
defense produc 

the evidence is 

cused and is m: 
or to punishme: 
are (a) suppres 
tion after a req



  

33 L Ed 2d 

lice officers who 

‘to the courtroom 

knew as “Slick” 

pounds heavier 
not wear glasses. 

‘esponded, “Well, 

jailhouse beans 
nds that he and 

cre not advised 
inders until after 
ded. 

the card players 

'e of the murder, 
ritten statement. 
statement Officer 

tch of the seat- 

. the card table. 

that the corners 

»d north, south, 
wrdplayer Powell 
southwest side. 
10 feet north of 
oor was to the 

argues that the 
tory and contra- 
nony that he ob- 

Defense coun- 
they were not 

during the trial. 

to the first five 
> did not comply 

(uest by the de- 

statements giv- 
witnesses; that 
oroduce the pre- 

sanders and the 
‘tradicting San- 

of Moore as 
he evidence not 
rial and would 

» his defense. 

t held that the 
ressed material 
to Moore, that 

794] 

at the prosecu- 
ntire file to de- 

‘hat no further 
© was made. 42 
NE2d, at 304. 

  

   
    

   
      

   
   
   
    
    
     

    
    
   

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MOORE v ILLINOIS 713 
408 US 786, 33 L Ed 2d 706, 92 8 Ct 2562 

Moore submits here the alternative 
claim that a specific request is not 

an “indispensable prerequisite” for 
the disclosure of exonerating evi- 

dence by the State and that the 
defense could not be expected to 

make a request for specific evidence 
that it did not know was in exist- 
ence. 

In Brady v Maryland, 373 US 83, 

10 L Ed 2d 215, 83 S Ct 1194 (1963), 
the petitioner and a companion were 
found guilty by a jury of first-de- 
gree murder and were sentenced to 

death. In his summation to the 

jury, Brady’s counsel conceded that 

Brady was guilty, but argued that 
the jury should return its verdict 

“without capital punishment.” Pri- 
or to the trial, counsel had requested 
that the prosecution allow him to 

examine the codefendant’s extra-ju- 
dicial statements. Some of these 
were produced, but another, in 

which the codefendant admitted the 
actual homicide, was withheld and 
did not come to Brady’s notice until 

after his conviction. In a post-con- 
viction proceeding, the Maryland 

Court of Appeals held that this de- 
nied Brady due process of law, and 
remanded the case for retrial on the 

issue of punishment. This Court 
affirmed. It held “that the suppres- 

sion by the prosecution of evidence 
favorable to an accused upon request 
violates due process where the evi- 

dence is material either to guilt or 
to punishment, irrespective of the 
good faith or bad faith of the pros- 

ecution.” 378 US, at 87, 10 1, Bd 

2d a: 218, 

[1] The heart of the holding in 

Brady is the prosecution’s suppres- 
sion of evidence, in the face of a 

“defense production request, where 
the evidence is favorable to the ac- 
cused and is material either to guilt 

or to punishment. Important, then, 
are (a) suppression by the prosecu- 
tion after a request by the defense, 

(b) the evidence’s favorable 
[408 US 795] 

char- 

acter for the defense, and (c¢) the 

materiality of the evidence. These 

are the standards by which the pros- 
ecution’s conduct in Moore's case is 

to be measured. 

Moore’s counsel asked several 

prosecution witnesses if they had 

given statements to the police. Each 
witness (Hill, Powell, Fair) who had 
given a statement admitted doing 

so and the statement was imme- 

diately tendered. The same inquiry 

was not made of witness Sanders. 
He was the only state witness who 

was not asked the question. At the 
post-conviction hearing the inquiry 

was made. Sanders admitted mak- 
ing a statement to the police and 

the statement was tendered. 

The record discloses, as the Illi- 

nois court states, 42 Ill 2d, at &0, 

246 NE2d, at 304, that the prose- 

cutor at the trial submitted his en- 
tire file to the defense. The prose- 

cutor, however, has no recollection 

that Sanders’ statement was in the 
file. The statement, therefore, ei- 

ther was in that file and not noted 
by the defense or it was not in the 

possession of the prosecution at the 
trial. 

We know of no constitutional re- 
quirement that the prosecution 
make a complete and detailed ac- 

counting to the defense of all police 
investigatory work on a case. Here, 

the elusive “Slick” was an early lead 
the police abandoned when eyewit- 

nesses to the killing and witnesses to 

Moore’s presence at the Ponderosa 

were found. Unquestionably, as the 
State now concedes,* Sanders was in 

error when he indicated to the police 
that he met Moore at Wanda and 
Del’s about six months prior to April 

30, 1962. Moore's incarceration at 

Leavenworth until March shows 
that conclusion to have been an in-    



  

714 U. S. SUPREME COURT REPORTS 

stance of mistaken identity. But 

the mistake was as to the identifica- 

tion of Moore as “Slick,” not as to 
[408 US 796] 

the presence of Moore at the 
Ponderosa Tap on April 27,5 “Sand- 

ers’ testimony to the effect that 
it was Moore he spoke with at the 
Ponderosa Tap in itself is not sig- 
nificantly, if at all, impeached. In- 

deed, it is buttressed by the testi- 
mony of bartender Joyce and oper- 

ator Fair, both of whom elaborated 
the incident by their description of 

the man, and by Moore’s request for 
a ride to Harvey, Illinois, Fair’s 
providing that ride, and Fair’s hear- 
ing, on that trip, the reference to 

one of the men as ‘Barbee,’ ” and a 
second reference to trouble with a 

bartender in Lansing. 

The other four of the first five 

items—that Jones told police he 

could identify “Slick” and subse- 
quently testified that Moore was not 

“Slick”; that the police had a pic- 
ture of Watts and assigned the lieu- 
tenant, unsuccessfully, to find 

Watts; that Thompson had been 
shown a picture of Moore and told 

the police that Moore was not 
“Slick”; and that on the day of the 

trial Sanders remarked that the 
man he knew as “Slick” looked 

heavier than Moore—are in exactly 

the same category. They all relate 

  

33 L Ed 2d 

to “Slick,” not Moore, and quite nat- 

urally go off on Sanders’ initial mis- 

identification of “Slick” with Moore. 

[2] None of the five items serves 
to impeach in any way the positive 

identification by Hill and by Powell 

of 
[408 US 7971 

Moore as Zitek’s killer, or the 
testimony of Fair and Joyce that 

Moore was at the Ponderosa Tap on 
April 27, or the testimony of Fair 
that the moustached Barbee was ac- 
companying Moore at that time, and 

that one of the two men made the 
additional and undisputed admission 
on the ride to Harvey. We conclude, 

in the light of all the evidence, that 

Sanders’ misidentification of Moore 
as Slick was not material to the is- 

sue of guilt. 

The remaining claim of suppres- 

sion relates to the diagram on the 
back of Mayer’s statement to the 

police.! Moore contends that the 

diagram shows that Powell was 
seated with his back to the entrance 

to Zitek’s and, thus, necessarily con- 

tradicts his testimony that he was 

looking toward the entrance as he 

sat at the card table, and that the 
State knowingly permitted false 

testimony to remain uncorrected, in 
violation of Napue v Illinois, 360 US 

264,31. Ed 2d 1217, 79.8 Ct 1173 
(1959). 

  

4. Brief for Respondent 4; Tr of Oral 
Arg 28. 

5. The dissent observes, post, at 804, 33 
L Ed 2d at 718, “When confronted with 
this fact [Moore’s imprisonment at Leaven- 
worth], Sanders indicated that it was im- 
possible that petitioner [Moore] was the 
man with whom he had spoken in the 
Ponderosa Tavern.” This is a misreading 
of Sanders’ testimony. The question and 
Sanders’ answer were: 

“Q. And did you tell me and also later 
on, did you tell the policeman from the 
State’s Attorney’s Office that if you had 
known that this fellow, Lyman Moore, was 
in the Federal Penitentinry until March 

4, 1962, you would definitely not have 
identified him as being Slick that you 
knew? 

  

“A. If he’s in jail, it would have been 
impossible to be the same man.” Abstract 
of Record 296. 

6. Contrary to the assertion by the dis- 
sent that the Mayer statement, with its 
accompanying diagram, was never made 
available to the defense, post, at 803, 33 
L Ed 2d at 718 and 809, 33 LL Ed 2d at 721, 
the trial transcript indicates that during 
the cross-examination of Officer Koppitz 
a request was made by the defense for 
all written statements taken by the officer 
from persons in Zitek’s restaurant at the 
time of the shooting. The court granted 

the request and the record recites that 
statements of Mayer and others were fur- 
nished to defense counsel. 

IR
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In Napue ti 
tion witness at 

was an acconi 
sentence for th 

in response tc 

prosecutor, tha 
promise of co: 

for his testimo 
ecutor had pro 
tion, but he did 
witness’ false f 

held that the 

ecutor to coi 
which he kne: 
Napue due pro 

this was so e: 
testimony wen 

ity of the wit: 
[41 

v Pate, 386 U: 

S.Ct 735 (1! 
Texas, 355 Ut 

S Ct 103 (1957 

[31 We are 

the diagram 
testimony wa 
who drew th 

the post-convi 
did not indi 
which Powell 

at the time of 

testified that 

table gave hi 
tender; that « 
not bid in the ; 

laid his hand 
toward the do 
in. There isn 
to indicate th 

in another di 
impossible fo 
by door from 
table. Furt 

shooting he 
  

7. See n 2. 
8. Curiously, 

Court that it is 
shotgun was t! 

for Respondent 

9. Later in 

prosecuting at:



33 L Ed 2d 

e, and quite nat- 
ders’ initial mis- 

ick” with Moore. 

ive items serves 
vay the positive 

[1 and by Powell 

7971 

's killer, or the 
and Joyce that 
nderosa Tap on 

stimony of Fair 
| Barbee was ac- 
it that time, and 

» men made the 

puted admission 
v. We conclude, 
e evidence, that 

cation of Moore 

terial to the is- 

aim of suppres- 

diagram on the 
.atement to the 
tends that the 

at Powell was 
: to the entrance 

necessarily con- 

ny that he was 

entrance as he 
le, and that the 
vermitted false 

uncorrected, in 

Illinois, 360 US 
7, 79S Ct 1173 

  

t would have been 

ne man.” Abstract 

sertion by the dis- 
tatement, with its 

, was never made 

:, post, at 803, 33 

33 L Ed 2d at 721, 
licates that during 
of Officer Koppitz 
y the defense for 
raken by the officer 
restaurant at the 

The court granted 
e¢cord recites that 
d others were fur- 
sel. 

  

    
    
    
   
     
   
   
    
    
    

   

  

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MOORE v ILLINOIS 

BA SAE Gaia (ok Se bE ao 

    
    

715 
408 US 786, 33 L Ed 2d 706, 92 S Ct 2562 

In Napue the principal prosecu- 

tion witness at Napue’s murder trial 

was an accomplice then serving a 
sentence for the crime. He testified, 

in response to an inquiry by the 

prosecutor, that he had received no 
promise of consideration in return 
for his testimony. In fact, the pros- 
ecutor had promised him considera- 
tion, but he did nothing to correct the 
witness’ false testimony. This Court 

held that the failure of the pros- 

ecutor to correct the testimony, 
which he knew to be false, denied 

Napue due process of law, and that 

this was so even though the false 
testimony went only to the credibil- 

ity of the witness. See 
[408 US 798] 

also Miller 

v Pate, 386 US 1, 17 LL Ed 2d 690, 87 
S Ct 785 (1967), and Alcorta. v 

Texans, 355 US 23, 2 L. E424 9, 78 

S Ct 103 (1957). 

[31 We are not persuaded that 

the diagram shows that Powell's 

testimony was false. The officer 
who drew the diagram testified at 
the post-conviction hearing that it 

did not indicate the direction in 
which Powell was facing or looking 
at the time of the shooting. Powell 

testified that his position at the 
table gave him a view of the bar- 

tender; that at the moment he could 
not bid in the pinochle game and had 
laid his hand down and was looking 

toward the door when Moore walked 
in. There is nothing in the diagram 
to indicate that Powell was looking 
in another direction or that it was 
impossible for him to see the near- 

by door from his seat at the card 
table. Furthermore, after the 
shooting he pursued Moore but 

stopped when the man warned him 
that he, too, might be shot. 

In summary, the background 
presence of the elusive “Slick,” 

while somewhat confusing, is at 

most an insignificant factor. The 

attempt to identify Moore as “Slick” 
encountered difficulty, but nothing 

served to destroy the two-witness 
identification of Moore as Zitek’s as- 

sailant, the three-witness identifica- 

tion of Moore as present at the 
Ponderosa Tap, the two-witness 

identification of Moore as one of the 
men who requested and obtained a 
ride from the Ponderosa in Dolton to 

Harvey, Illinois, and Fair’s tes- 
timony as to the admission made on 

that ride. 

We adhere to the principles of 
Brady and Napue, but hold that the 

present record embraces no violation 
of those principles. 

IV 

The 16-gauge shotgun was ad- 
mitted into evidence at the trial over 

the objection of the defense that it 
was not the murder weapon, that it 

had no connection with the crime 
charged, and that it was inadmis- 

sible under Illinois 
[408 US 799] 

law.” During his 
closing argument to the jury, the 

prosecuting attorney stated that the 

16-gauge shotgun was not used to 
kill Zitek,® but that Moore and his 

companion, Barbee, were ‘the kind 
of people that use shotguns.””? 

The Supreme Court of Illinois held 
that the shotgun was properly ad- 

mitted into evidence as a weapon in 
Moore’s possession at the time of 
his arrest, and was a weapon ‘‘suit- 

  

7. See n 2. 
8. Curiously, the State argues in this 

Court that it is possible that the 16-gauge 
shotgun was the murder weapon. Brief 

for Respondent 20-21. 

9. Later in his closing argument the 
prosecuting attorney referred to the 16- 

gauge shotgun and stated again that a 

12-gauge shotgun killed Zitek. He argued 
that a shotgun is not “the most humane 

type weapon” and that the death penalty 
is appropriate in a case in which a shot- 
gun is used to murder a person.    

 



   
able for the commission of the crime 

charged . . . even though there 
is no showing that it was the actual 

weapon used.” 42 Ill 2d, at 78, 246 
NE2d, at 303. Moore claims that 
the gun’s introduction denied him 

due process. 

[4, 51 Of course, the issue whether 

the shotgun was properly admitted 
into evidence under Illinois law is 
not subject to review here. The due 

process claim, however, appears to 

be raised for the first time before us. 
There is no claim by Moore, and 
there is nothing in the record to dis- 

close, that due process was argued in 
the state courts. We could con- 

clude, therefore, that the issue is not 

one properly presented for review. 

[6] In any event, we are unable 

to conclude that the shotgun’s in- 

troduction deprived Moore of the 
due process of law guaranteed him 
by the Fourteenth Amendment. The 
16-gauge shotgun, found in the car, 

was in the constructive possession of 
both Moore and Barbee when they 
were arrested after the shooting in- 

cident on October 31. There is sub- 

stantial other evidence in the record 
[408 US 8001] 

that a shotgun was used to kill 

Zitek, and that he suffered the 

wounds one would expect from a 

SEPARATE 

Mr. Justice Marshall, with whom 
Mr. Justice Douglas, Mr. Justice 
Stewart, and Mr. Justice Powell 
join, concurring in part and dissent- 
ing in part. 

Petitioner was convicted of 
murder in the Illinois state courts 
and sentenced to death. The Su- 
preme Court of Illinois affirmed 
the conviction and sentence by a 
divided court. 42 Ill 2d 73, 246 NE 
2d 299 (1969). This Court holds 
that the imposition of the death sen- 
tence violated the principle estab- 

  

716 U. S. SUPREME COURT REPORTS 33 L Ed 2d 

shotgun fired at close range. The 

testimony as to the murder itself, 
with all the details as to the shotgun 

wounds, is such that we cannot say 

that the presentation of the shot- 
gun was so irrelevant or so inflam- 
matory that Moore was denied a fair 

trial. The case is not federally re- 
versible on this ground. 

Vv 

[7] Inasmuch as the Court to- 
day has ruled that the imposition of 
the death penalty under statutes 

such as those of Illinois is violative 
of the Eighth and Fourteenth 
Amendments, Furman v Georgia, 
408 US p 238, 33 LL Ed 2d p 346, 93 

S Ct 2726, it is unnecessary for us 
to consider the claim of noncompli- 
ance with the Witherspoon stand- 

ards. In Witherspoon, 391 US, at 
523 in n. 21, 20 LL Ed 2d at 785, the 
Court stated specifically, “Nor, 
finally, does today’s holding render 
invalid the conviction, as opposed to 
the sentence, in this or any other 

case” (emphasis in original). The 
sentence of death, however, may not 

now be imposed. 
The judgment, insofar as it im- 

poses the death sentence, is re- 
versed, Furman v Georgia, supra, 

and the case is remanded for further 

proceedings. 

OPINION 

lished today in Furman v Georgia, 
408 US 238, 33 L Ed 2d 346, 93 S Ct 
2726, and that the sentence must 
be vacated, but the Court upholds 
the underlying conviction. I agree 
with the majority that the sentence 
is invalid and 

[408 US 801] 

join Part V of the 
opinion of the Court. I also agree 

that the introduction of the shotgun 

into evidence at petitioner’s trial 

did not violate the Fourteenth 

Amendment.! 
  

1. I find the constitutional question pre- 
sented by the introduction of this evi- 

  
dence to be much harder than the ma- 
jority seems to. It was uncontradicted at 

  

But, I beli: 

disclose to i 
dence that m: 
substantial @o 
fense, the St. 

trial. 

The opinion 

at some lengt! 
the crime witl 

charged, the 
arrest, the co 

the developme 
tion hearing. 
complicated a 

[4 

have not re 
Rather, 1 ha 
that seem to 
important and 
details that = 

Court’s opinio 

Two interr« 

raised against 

—alibi and mi 

tioner’s theory 

he was not at 

murder was 

those witness: 

they saw him 

him with some 

Only two w 
  

trial that the w 
petitioner had 1 
with which he 

fact, clear that f 

evidence was a 

the murder wea 
Despite the fact 
ceded this in a 

ulars, it did eve: 

cate the fact t} 

into evidence wa 
This was highly 
also indicates tha 

fused as to why 

should be admit! 

said, “There was 
was a shotgun 
nothing wrong i 
fendant, who wi 
people, was app 
Abstract of Re



   

33 L Ed 2d 

» range. The 

murder itself, 

to the shotgun 

we cannot say 

1 of the shot- 
or so inflam- 

's denied a fair 

t federally re- 
d. 

the Court to- 
: imposition of 

mder statutes 
ois is violative 

d Fourteenth 

n v Georgia, 
d 2d p 346, 93 

cessary for us 
of noncompli- 
rspoon stand- 

n, 391 US, at 
2d at 785, the 
ically, “Nor, 
holding render 

, as opposed to 
or any other 

riginal). The 

vever, may not 

ofar as it im- 
ntence, is re- 

.eorgia, supra, 
led for further 

1an v Georgia, 
2d 346, 93 S Ct 
sentence must 

Court upholds 
‘tion. I agree 
it the sentence 

011] 

Part V of the 
I also agree 

of the shotgun 

titioner’s trial 

e Fourteenth 

  

r than the ma- 

uncontradicted at 

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MOORE v ILLINOIS 717 
408 US 786, 33 L Ed 2d 706, 92 S Ct 2562 

But, I believe that in failing to 

disclose to petitioner certain evi- 
dence that might well have been of 
substantial assistance to the de- 
fense, the State denied him a fair 

trial. 

The opinion of the Court relates 
at some length the facts relating to 

the crime with which petitioner was 
charged, the circumstances of his 

arrest, the course of the trial, and 

the developments at the post-convic- 

tion hearing. As these facts are 

complicated and quite confusing, 
[408 US 802] 

1 

have not reiterated them here. 

Rather, I have emphasized those 
that seem to me to be particularly 

important and I have added several 
details that are omitted from the 

Court’s opinion. 

Two interrelated defenses were 

raised against the charge of murder 

—alibi and misidentification. Peti- 

tioner’s theory of the case was that 

he was not at the scene when the 

murder was committed and that 

those witnesses who testified that 

they saw him there were confusing 

him with someone else. 

Only two witnesses affirmatively 

agserted at trial that they saw the 

murder and that they could identify 

petitioner as the assailant. They 

were Patricia Hill, a waitress in the 

victim’s bar, and Henley Powell, a 

customer. Aside from their tes- 

timony, the only other evidence in- 

troduced against petitioner related 

to statements that he allegedly 

made two days after the murder. 

There is a problem with the eye- 

witness testimony of Powell that did 

not become apparent until the post- 

conviction hearing in the trial court. 

At trial he testified as follows: 

“The defendant (indicating) came 

into the tavern while I was at the 

table. I first saw him when he 

walked in the door with a shotgun. 

I was sitting at the table along the 

wall. I was facing where the bar- 

tender was standing and I also had 

a view of the man that walked in the 

door. I was looking to the west.” 

Abs 32. 

But at the post-conviction hearing 

it was discovered that police officers 

who had investigated the murder 

possessed a statement by one Charles 

Mayer, who had been sitting with 
  

trial that the weapon introduced against 
petitioner had no bearing on the crime 
with which he was charged. It was, in 
fact, clear that the shotgun admitted into 
evidence was a 16-gauge gun, whereas 

the murder weapon was a 12-gauge gun. 
Despite the fact that the prosecution con- 
ceded this in a pretrial bill of partic- 
ulars, it did everything possible to obfus- 
cate the fact that the weapon admitted 
into evidence was not the murder weapon. 
This was highly improper. The record 
also indicates that the trial judge was con- 
fused as to why he thought the weapon 

should be admitted. At one point he 
said, “There was testimony here that this 
was a shotgun killing. And I can see 
nothing wrong if they say that this de- 
fendant, who will be identified by other 
people, was apprehended with this gun.” 
Abstract of Record (Abs), 65. If the 

trial judge meant to imply that because 
the crime was committed with a shotgun, 

it was sufficient to prove that the peti- 
tioner possessed any shotgun, whether or 
not it was the murder weapon, he surely 

erred. But it is impossible to tell from 
the record in this case precisely what was 
intended, or whether the judge confused 
the jury when he admitted the weapon. 
Although this highly prejudicial and ir- 
relevant evidence was introduced, and al- 
though the prosecution did its best to lead 
the jury to believe that there was a re- 
lationship between the murder weapon and 
the shotgun in evidence, the fact that peti- 
tioner’s counsel explained to the jury that 
the two weapons were not identical is, on 
the very closest balance, enough to war- 

rant our finding that the jury was not 

improperly misled as to the nature of the 
evidence before it.     

 



   
Powell at a table in the bar, which 

contained a diagram indicating that 
Powell was seated in a direction op- 

posite that indicated in his trial tes- 

timony. 
[408 US 803] 

This diagram was never 

made available to defense counsel.? 

Donald O’Brien, who had also been 

seated at Powell and Mayer’s table, 

testified at trial and contradicted the 
testimony of both Powell and 
Patricia Hill. Although O’Brien 

admitted that he did not actually 
see the shooting because his back 
was to the bar, he was certain that 

petitioner was not the man who had 

been ejected from the victim's bar 

only an hour before the killing. 
O’Brien’s testimony greatly under- 
cut the apparent retaliatory motive 
that the prosecution attributed to 

petitioner.? 

[408 US 804] 

Because of the contradictory tes- 

timony of those persons who were 
present at the scene of the murder, 
the statements allegedly made by 

the petitioner after the crime were 
crucial to the prosecution’s case. 

  

18 U. S. SUPREME COURT REPORTS 33 L Ed 2d 

The key prosecution witness in this 
regard was Virgle Sanders. He tes- 

tified that two days after the mur- 

der he was in the Ponderosa Tavern, 

that petitioner (whom he knew as 

“Slick”) was there also, and that pe- 

titioner said “[s]omething about it’s 

season or open season on bartenders 

or something like that.” Abs 44. 

The bartender also testified that he 

recognized petitioner as being pres- 

ent at the same time as Sanders. 

And the owner of the tavern stated 

that he gave petitioner and petition- 
er’s friend a short ride in his auto- 

mobile, at the end of which the 

friend mentioned something about 

“trouble with the bartender.” Abs 

52. 

After his trial and conviction peti- 
tioner learned that five days after 

the murder, Sanders gave a state- 

ment to the police in which he said 
that he had met “Slick” for the first 

time about six months before he 

spoke to him in the Ponderosa Tav- 

ern. As the Court notes, it would 

have been impossible for Sanders to 

have met the petitioner at the time 
  

2. It is true, as the Court states, that 
following the shooting Powell followed the 
assailant into the street, but it is also 
true that he never got closer than 50 

to 60 feet of the murderer. Abs 32. The 
strength of his testimony lay in the al- 
leged opportunity he had for close observa- 
tion of the murderer while the crime was 
committed. 

Footnote 6 of the Court’s opinion im- 
plies that during the trial the prosecution 
turned over Mayer’s diagram to defense 
counsel. But there is absolutely no sup- 
port for this implication in the record. 
While it is true that the diagram was 
drawn on the back of the original state- 
ment given by Mayer to the police, there 
is nothing to indicate that it was ever 
recopied and made a part of any repro- 

ductions of Mayer’s statement. All indi- 

cations are that it was not reproduced. At 
the post-conviction hearing the following 

testimony was adduced: the police officer 
who aided the prosecution at trial indi- 
cated that he had the original diagram in 

  

his file, Abs 244-249; the two lawyers who 
had represented petitioner at trial both 
swore that they were given only Mayer’s 
statement, not his diagram, Abs 307, 
328; and the prosecutor testified that he 

did not know for sure whether he gave 
the diagram to defense counsel, but that 
it was certain that he did not supply 
the diagram if it was not in his file. Abs 
324. Since the diagram was in the police 
officer’s file, not the prosecutor’s, it is 
clear that it was never made available to 
defense counsel, even though the prosecu- 
tor was aware of its contents. See infra, 
at 809, 33 LL Ed 2d at 721. 

3. The Court asserts that O’Brien may 
have been drunk. His testimony at trial 
made it clear beyond doubt that when the 
victim ejected the man alleged to be the 
petitioner from the bar, this witness was 
perfectly sober. Later, especially after the 
killing, the witness drank heavily and 
became intoxicated. No one contradicted 
this at trial. 

specified, bec: 
federal prison 
post-convictio: 
said that he 

he first met 

“Slick,” but t} 
it was before 
titioner was n 
eral custody 
When confron 

Sanders indie: 

possible that p 
with whom h: 

Ponderosa Ta 

ders’ trial iden 
impeached at | 

by testimony 
[40 

trial he told po 
tioner was apj 
pounds lighter 
“Slick” being. 

Sanders’ test 
er and “Slick” 
same was Corro 

ing. The reaso 
remember the f 
met “Slick” w 
been involved | 

William Thomp 
tified at the he: 
bered the alter: 

“Slick,” that p 
had told police 
er was not “Sli 
mained certain 
“Slick” were dif 
ly, Sanders’ tes! 
rated by Delbe: 

of the tavern 
Thompson scuf!’ 

that he was ce: 

was not the ma 

The fact is 1 
Jones were bot! 

James FE. Watt 

as “Slick,” am 
much like the ; 
ord makes clear 

pected Watts a



33 L Ed 2d 

witness in this 
anders. He tes- 

after the mur- 

nderosa Tavern, 

om he knew as 

Iso, and that pe- 
:thing about it’s 

n on bartenders 

hat.” “Abs 44, 

estified that he 

as being pres- 

ne as Sanders. 

e tavern stated 

ler and petition- 

ide in his auto- 

of which the 

mething about 

rtender.” Abs 

conviction peti- 
five days after 
; gave a state- 

1 which he said 

'k” for the first 

iths before he 

Ponderosa Tav- 

notes, it would 

+ for Sanders to 

ner at the time 
  

- two lawyers who 
ier at trial both 
ven only Mayer’s 
gram, Abs 307, 

testified that he 
whether he gave 
counsel, but that 

did not supply 
t in his file. Abs 
was in the police 
rosecutor’s, it is 
made available to 
ough the prosecu- 
‘tents. See infra, 
L. 

hat O’Brien may 
estimony at trial 
bt that when the 
alleged to be the 
this witness was 
pecially after the 
ink heavily and 
one contradicted 

  
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    MOORE v ILLINOIS 719 
408 US 1786, 33 L Ed 2d 706, 92 S Ct 2562 

specified, because petitioner was in 

federal prison at that time. At the 
post-conviction hearing, Sanders 
said that he was not positive when 

he first met the man known as 

“Slick,” but that he definitely knew 

it was before Christmas 1961. Pe- 
titioner was not released from fed- 

eral custody until March 1962. 
When confronted with this fact, 

Sanders indicated that it was im- 
possible that petitioner was the man 

with whom he had spoken in the 
Ponderosa Tavern. Abs 296. San- 
ders’ trial identification was further 
impeached at the post-trial hearing 

by testimony that on 
[408 US 805] : 

the day of 

trial he told police officers that peti- 
tioner was approximately 30 or 40 

pounds lighter than he remembered 

“Slick” being. Abs 294. 

Sanders’ testimony that petition- 
er and “Slick” were not one and the 

same was corroborated at the hear- 
ing. The reason that Sanders could 
remember the first time that he had 

met “Slick” was that “Slick” had 
been involved in a scuffle with one 
William Thompson. Thompson tes- 
tified at the hearing that he remem- 

bered the altercation, that he knew 
“Slick,” that prior to the trial he 
had told police officers that petition- 
er was not “Slick,” and that he re- 
mained certain that petitioner and 
“Slick” were different people. Final- 
ly, Sanders’ testimony was corrobo- 
rated by Delbert Jones, the owner 
of the tavern where “Slick” and 
Thompson scuffled. Jones testified 

that he was certain that petitioner 
was not the man known as “Slick.” 

The fact is that Thompson and 

“Jones were both familiar with one 

James FE. Watts, whom they knew 

as “Slick,” and who looked very 

much like the petitioner. The rec- 

ord makes clear that the police sus- 

pected Watts as the murderer and 

assigned a ‘lieutenant to search for 

him. A raid of Jones’ bar was even 
made in the hope of finding this 

suspect. 

Sanders’ testimony at the post- 

conviction hearing indicates that it 
was Watts who bragged about the 
murder, not petitioner. It is true 
that the bartender and the owner of 
the Ponderosa Tavern testified at 

trial that it was petitioner who was 
in the bar with Sanders, but the 
bartender had never seen “Slick” 

before, and the owner was drinking 
the entire afternoon. Furthermore, 
the fact remains that petitioner and 

Watts look very much alike. 

Petitioner urges that when the 
State did not reveal to him Sanders’ 

statement about meeting “Slick” at 

an earlier time and the corrobora- 

tive statements of 
[408 US 806] 

Thompson and 

Jones, it denied him due process. 
The Court answers this by saying 

that the statements were not mate- 

rial. It is evident from the fore- 
going that the statements were not 
merely material to the defense, they 
were absolutely critical. I find my- 

self in complete agreement with Jus- 
tice Schaeffer’s dissent in the Illinois 

Supreme Court: 

“The defendant’s conviction rests 
entirely upon identification testi- 
mony. The facts developed at the 
post-conviction hearing seriously 

impeached, if indeed they did not 

destroy, Sanders’s trial testimony. 

Had those facts, and the identifica- 

tions of ‘Slick’ Watts by Thompson 
and Jones, been available at the 

trial, the jury may well have been 

unwilling to act upon the iden- 

tifications of Patricia Hill and Hen- 

ley Powell. Far more is involved in 

this case, in my opinion, that ‘the 

following up of useless leads and 

discussions with immaterial wit-    
 



  

« 

  

720 U. S. SUPREME COURT REPORTS 33 L Ed 2d 

nesses.” Certainly if Sanders’s iden- 

tification was material, the 

testimony of the other witnesses 
which destroyed that identification 

[was] also material. Consequently, 
I believe that the State’s nondisclo- 

sure denied the defendant the fun- 

damental fairness guaranteed by 

the constitution, =, . ..» "42 11 24, 
at 88-89, 246 NE2d, at 308.4 

[408 US 807] 

Petitioner also urges that the fail- 
ure of the prosecution to disclose 
the information concerning where 

the eyewitness Powell was sitting 
when he allegedly saw petitioner is 

another instance of suppression of 
evidence in violation of the Four- 

teenth Amendment. Had this been 
the prosecution’s only error, I would 
join the Court in finding the evi- 

dence to be immaterial. But if this 

evidence is considered together with 

other evidence that was suppressed, 
it must be apparent that the failure 
of the prosecution to disclose it con- 

tributed to the denial of due process. 

Even if material exculpatory evi- 

dence was not made available to 
petitioner, the State argues that be- 

cause petitioner did not demand to 

see the evidence, he cannot now 

complain about nondisclosure. This 

argument is disingenuous at best. 

Prior to trial, petitioner moved 

for discovery of all statements giv- 

en to the prosecutor or the police 
by any witness possessing informa- 
tion relevant to the case. Abs. 5. 

In explaining why such a broad nio- 
tion was made, petitioner’s counsel 
stated that, “We want to circum- 

vent the possibility that a witness 

gets on the stand and says, ‘Yes, I 
made a written statement,” and then 

the State’s Attorney says, ‘But no, 

we don’t have it in our possession,’ 
or they say, ‘It’s in the possession 
of Orlando Wilson [Superintendent 
of Police, Chicago, 1I.], or ‘The 

Chief of Police of Lansing,’ ” Abs. 
8. In 

[408 US 808] 

response to the motion, the 
prosecutor guaranteed defense coun- 
sel and the court that he would sup- 

ply defense counsel with statements 
made either to the police or to the 

State’s Attorney by witnesses who 
were called to testify at trial. Ibid. 
Based on this representation, the 

motion for discovery was denied. 
Never was there any implication by 

the prosecutor that his guarantee 

was in any way dependent upon peti- 

tioner’s making repeated and spe- 

cific requests for such statements 

after each witness testified at trial. 

The prosecutor’s guarantee certain- 

ly covered Sanders’ statement. As 

for the statements of the bartender 

and owner of the Ponderosa Tavern 

and the statement and diagram of 

Charles Mayer, petitioner clearly 
  

4. Chief Judge Friendly has noted that 
when the prosecution fails to disclose evi- 
dence whose high value to the defense 

could not have escaped the prosecutor’s 
attention, “almost by definition the evi- 
dence is highly material.” United States 
v Keogh, 391 F2d 138, 147 (CA2 1968). 
See also United States ex rel. Meers Vv 
Wilkins, 326 F2d 135 (CA2 1964). 

The materiality of the undisclosed evi- 
dence in this case cannot be seriously 

doubted. The State based its case pri- 
marily on the eyewitness identifications of 

petitioner by a witness and patron in the 
bar. Testimony of this sort based on in- 
court identification is often viewed with 

  

suspicion by juries. See McGowan, Con- 
stitutional Interpretation and (Criminal 
Identication, 12 Wm. & Mary L Rev 
235, 241-242 (1970). That testimony in 
this case was subject to serious question: 
indeed, petitioner premised his defense in 
large part on a theory of misidentifica- 
tion. Coupled with the contradictory state- 
ment made by O’Brien (see supra, at 803, 

3 L Ed 2d at 718), the evidence showing 
that one of the witnesses may not have 
had an adequate opportunity to observe 
and that petitioner may have been con- 
fused with another person named “Slick” 
would certainly have been material to the 
defense’s presentation of its case. 

demanded t¢ 
foretrial. T 
position that 

only the st: 
who testified 
imagine wh: 
mand petitio 
Moreover, th 

tioner made 
sive discover 
tion on not 

wished to set 
witness that 

The motion s 

fice of flaggi 
the evidence 

thus impos|1 
a duty to m: 

his files.” TU 

391 F2d 133, 

In my vie: 

land, 373 US 
83 S Ct 119¢/ 
Illinois, 360 1 

79-8 0t 117 
the convictio 

versed. Nap 
Fourteenth 
“when the St 

iting false e\ 
uncorrected.” 

2d at 1221, 
suppression « 
quires a new 
the good fait 

prosecution.” 
Fd 24 at 21 

doubt that t 

of evidence 1} 
[ 

the evidence f 
was “false” 1 

incomplete an 

Both befor 

the prosecut: 

and went ov: 

he had given 

after the mi 

Thus, it is aj 
[33 L Ed 2d}—4



    

33 L Ed 2d 

itor or the police 
ssessing informa- 

he case. Abs. 5. 
such a broad mo- 

'titioner’s counsel 

want to circum- 
ty that a witness 
and says, ‘Yes, I 

tement,” and then 
ney says, ‘But no, 

in our possession,’ 
in the possession 

I [Superintendent 
9, 11.], or ‘The 

Lansing,”” Abs. 

S 808] 

) the motion, the 
feed defense coun- 

hat he would sup- 

| with statements 

» police or to the 
ny witnesses who 

ify at trial. Ibid. 
presentation, the 

ery was denied. 

ny implication by 
at his guarantee 

rendent upon peti- 

peated and spe- 

such statements 

testified at trial. 

uarantee certain- 

’ statement. As 

of the bartender 

’onderosa Tavern 

and diagram of 

etitioner clearly 
  

See McGowan, Con- 
tion and Criminal 

& Mary L Rev 
That testimony in 

to serious question: 
ised his defense in 

ry of misidentifica- 
contradictory state- 
(see supra, at 803, 

ie evidence showing 
'sses may not have 
rtunity to observe 
ay have been con- 
rson named “Slick” 
cen material to the 
of its case. 

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MOORE v ILLINOIS 721 

408 US 786, 33 L Ed 2d 706, 92 S Ct 2562 
demanded to see these things be- 

fore trial. The prosecution took the 
position that it was bound to reveal 
only the statements of witnesses 

who testified. Hence, it is hard to 

imagine what sort of further de- 

mand petitioner might have made. 
Moreover, the very fact that peti- 
tioner made his motion for exten- 

sive discovery placed the prosecu- 
tion on notice that the defense 
wished to see all statements by any 

witness that might be exculpatory. 

The motion served “the valuable of- 
fice of flagging the importance of 
the evidence for the defense and 
thus impos[ing] on the prosecutor 

a duty to make a careful check of 
his files.” United States v Keogh, 

391 F2d 138, 147 (CA2 1968). 

In my view, both Brady v Mary- 
land, 373 US 83, 10 L. Ed 24 215, 

83 S Ct 1194 (1963), and Napue v 
Hlinois, 360 US 264, 3 1. Ed 24 1211, 

79 S Ct 1173 (1959), require that 
the conviction in this case be re- 

versed. Napue establishes that the 

Fourteenth Amendment is violated 
“when the State, although not solic- 

iting false evidence, allows it to go 
uncorrected.” 1Id., at 269, 3 L Ed 
2d at 1221. And Brady holds that 
suppression of material evidence re- 
quires a new trial “irrespective of 

the good faith or bad faith of the 
prosecution.” Supra, at 87, 10 L 
Ed 2d at 218. There can be mo 
doubt that there was suppression 

of evidence by the State and 
[408 US 809] 

that 
the evidence that the State relied on 

was “false” in the sense that it was 

incomplete and misleading. 

Both before and during the trial 

the prosecutor met with Sanders 

and went over the statement that 

he had given the police five days 

after the murder. Abs 301, 315. 

Thus, it is apparent that the pros- 
[33 L Ed 2d]—46 

ecutor not only knew of the state- 

ment, but was actively using it to 

prepare his case. There was also 
testimony at the post-conviction 
hearing from the prosecution that 

it had discussed the location where 
Powell was sitting when he alleged- 

ly saw the murder. While the pros- 
ecutor could not remember whether 
or not he actually had Mayer’s state- 

ment and diagram in his possession, 

he had some recollection that before 
trial he was informed of exactly 

where everyone at Powell’s table 

was sitting. Abs 323. No attempt 
was ever made at trial to communi- 

cate this information to the defense. 

Moreover, seated at the prosecu- 

tor’s table throughout the trial was 

Police Lieutenant Turbin, who had 
investigated the case and who was 

assisting the prosecution. At the 

post-conviction hearing, he testified 
that throughout the trial he was not 
only aware of Sanders’ statement 

and Mayer’s diagram, but also that 
he had them in his file. He made 

no attempt to communicate his in- 

formation to the prosecutor or to 
remind him about the evidence. 

When the State possesses infor- 
mation that might well exonerate a 
defendant in a criminal case, it has 
an affirmative duty to disclose that 

information. While frivolous infor- 

mation and useless leads can be ig- 
nored, if evidence is clearly relevant 
and helpful to the defense, it must 

be disclosed. 

Obviously some burden is placed 
on the shoulders of the prosecutor 
when he is required to be respon- 

sible for those persons who are 
directly assisting him in bringing 
an accused to justice. But this bur- 

den is the essence 
[408 US 810] 

of due process of 
law. It is the State that tries a 

man, and it is the State that must   



& 

  

insure that the trial is fair. “A 

citizen has the right to expect fair 

dealing from his government, see 
Vitarelli v Seaton, 359 US 535, [3 

L Ed 2d 1012, 79 S Ct 968] and this 

entails . . . treating the govern- 
ment as a unit rather than as an 

amalgam of separate entities.” 
S & E Contractors, Inc. v United 
States, 406 US 1, 10, 31 L Ed 2d 
658, 666, 92 S Ct 1411 (1972). 
“The prosecutor’s office is an entity 

and as such it is the spokesman for 
the Government.” Giglio v United 

States, 4056 US 150, 154, 31 L Ed 2d 
104, 92 S Ct 763 (1972).5 See also 

Santobello v New York, 404 US 257, 
262, 30 LL. Ed 24 427, 433, 92 S Ct 
495 (1971); Barker v Wingo, 407 

US 514, 33 LL. BEd 24 101, 92 S Ct 

2182 (1972). 

My reading of the case leads me 

  

722 U. S. SUPREME COURT REPORTS 33 L Ed 2d 

to conclude that the prosecutor 

knew that evidence existed that 
might help the defense, that the 
defense had asked to see it, and that 

it was never disclosed. It makes no 

difference whatever whether the 

evidence that was suppressed was 
found in the file of a police officer 
who directly aided the prosecution 
or in the file of the prosecutor him- 

self. When the prosecutor con- 
sciously uses police officers as part 
of the prosecutorial team, those of- 

ficers may not conceal evidence that 

the prosecutor himself would have 
a duty to disclose. It would be un- 

conscionable to permit a prosecutor 

to adduce evidence demonstrating 

guilt without also requiring that 

he bear the responsibility of pro- 

ducing all known and relevant evi- 

dence tending to show innocence. 
  

5. In the recent decision in Kastigar v 
United States, 406 US 441, 32 LL Ed 2d 212, 
92 S Ct 1653 (1972), holding that use im- 
munity was co-extensive with the Fifth 

  

Amendment privilege against self-incrim- 
ination, the Court noted that prosecutors 
may be responsible for actions of police 
officers enlisted to aid a prosecution. 

[33 L Ed 2d]   

A 

The Interst 
of a Portland 
railroads serv 

railroads serv 
ing railroad, 
might gain by 
first two railr 

District Court 

On direct a 
manded with | 

BLACKMUN, J 
that the ICC’: 

the acquisitio: 
latter two rail 

first two railr 

inappropriate. 

POWELL and 

Briefs of C:



  

   
itical date” for analyzing 
ict is the year of Decem- 
ecember 14, 1971, The 
it which the legal dispute 
rgstrom’s correspondence 
he editor of the “Parade 
in which appeared in the 

Dryden’s “Parade of 
described new products 
Individuals were not 

vublicity which they re- 
vden’s column. A typical 
‘arade of Progress” col- 
otograph of the product, 
hing the product includ- 
address of the manufac- 
rmation. 

a letter to Peter Dryden 
'f persuading Dryden to 
is fireplace grate in his 
ss” column. His first 
s sent in September or 

t included the informa- 
n can be obtained from 
rises, 51 Iona Lane, St. 
‘or $49.95 + shipping 

| court found, among 
ergstrom did not write 
rective purchaser of the 
¢, Bergstrom v. Sears, 
ra, at 217-219. In late 
Bergstrom wrote a 

den concerning his in- 
information contained 
's out-of-date by that 
eived no reply to ei- 

‘ad sent to Dryden and 
ction of receiving the 
tion concerning Dry- 
ed in the “Parade of 
ergstrom’s correspon- 
vas the only activity 
'4, 1971 which could 

as placing his inven- 
' court concluded that 

+ Dryden were insuffi- 

he trial court’s findings 
iing Bergstrom’s com- 
Kelley, a publisher's 

* Magazine, 

SE
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FREEMAN v. STATE OF GA. 65 
Cite as 599 F.2d 65 (1979) 

cient to place the product on sale. It is this 

conclusion which the appellants attack. 

[6] The trial court concluded that in or- 

der for Bergstrom’s invention to be classi- 

fied as “on sale” that: (1) the patentee 

must have had a present intent to sell, and 

(2) that intent must have been communicat- 

ed to a prospective purchaser for the pur- 

pose of eliciting a sale, and not for some 

other reason. Bergstrom v. Sears, Roebuck 

and Co., supra, at 223. We agree with the 

trial court’s well-reasoned conclusions of 

law concerning the “on sale” provisions of 

§ 102(b) and their application to this case. 

Bergstrom v. Sears, Roebuck and Co., su- 

pra, at 223-224. In affirming we therefore " 

adopt the district court’s conclusions of law 

pertaining to the “on sale” provisions of 

§ 102(b) as those conclusions apply to the 

facts of this case. 

Judgment affirmed. 

O & KEY NUMBER SYSTEM 

—
“
»
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=
 

Holman FREEMAN, Petitioner- 

Appellant, 

Vv. 

STATE OF GEORGIA, 

Respondent-Appellee. 

No. 78-2871. 

United States Court of Appeals, 

Fifth Circuit. 

July 18, 1979. 

Georgia prisoner filed a petition for 

writ of habeas corpus. The United States 

District Court for the Northern District of 

Georgia, Albert J. Henderson, Jr., Chief 

Judge, denied relief and petitioner appeal- 

ed. The Court of Appeals, Tuttle, Circuit 

Judge, held that a police detective’s know- 

ingly concealing a witness amounted to 

state suppression of evidence favorable to 

the petitioner, thereby depriving him of due 

process, and the petitioner did not waive his 

right to object to the witness’ failure to 

appear by not attempting to subpoena her 

or moving for a continuance or mistrial 

when she did not appear. 

Reversed and remanded. 

1. Constitutional Law &=268(5) 

Criminal Law &=728(2) 

Police detective’s knowingly concealing 

witness amounted to state suppression of 

evidence favorable to accused, thereby de- 

priving him of due process, where evidence 

might have created reasonable doubt which 
did not otherwise exist; and accused did 

not waive his right to object to witness’ 

failure to appear by not attempting to sub- 

poena her by moving for continuance or 

mistrial when she did not appear, where 

police statement had misled defense counsel 

into believing that witness’ testimony 

would not be favorable. U.S.C.A.Const. 

Amend. 14. 

2. Constitutional Law &=268(5) 

Habeas Corpus ¢=25.1(8) 

When state deliberately conceals eye- 

witness to crime, due process has been vio- 

lated and habeas must be granted if, in 

context of entire trial, missing witness’ tes- 

timony was such as might have created 

reasonable doubt which would not other- 

wise have existed. U.S.C.A.Const. Amend. 
14. 

3. Criminal Law &=700 

When investigating police officer will- 

fully and intentionally concealed material 

    

  



   
information, regardless of his motivation 

and otherwise proper conduct of state attor- 

ney, policeman’s conduct must be imputed 

to state as part of prosecution team. 

4. Criminal Law &=728(2) 

When police statement misleads de- 

fense into believing that evidence will not 

be favorable, state cannot thereafter argue 

that accused waived right to such evidence 

by not requesting it. 

Theodore S. Worozbyt, Atlanta, Ga., for 

petitioner-appellant. 

Lewis Slaton, Dist. Atty., H. Allen Moye, 

Asst. Dist. Atty. Atlanta, Ga., for respon- 

dent-appellee. 

Appeal from the United States District 

Court for the Northern District of Georgia. 

Before TUTTLE, GODBOLD and RU- 

BIN, Circuit Judges. 

TUTTLE, Circuit Judge: 

This habeas appeal involves the effect of 

an investigating city homicide detective’s 

concealment of a key eyewitness. 

Freeman is in state custody ! pursuant to 

his voluntary manslaughter conviction in 

the Fulton County Superior Court for 

shooting one Frank Saffles to death. He 

was indicted for two counts of murder and 

one count of aggravated assault. He was 

convicted of the murder of Ray Hill and the 

killing of Frank Saffles under the volun- 

tary manslaughter statute, but was acquit- 

ted of aggravated assault on one of the 

eyewitnesses. He received a death sentence 

for the murder conviction and twenty years 

imprisonment for voluntary manslaughter. 

The trial court granted Freeman's motion 

for a new trial as to the murder conviction 

on discretionary grounds? but denied the 

motion as to the manslaughter conviction. 

This denial was appealed to the Georgia 

1. The fact that Freeman may have been re- 
leased on parole after serving a third of his 

twenty year sentence does not affect § 2254 

habeas jurisdiction since it is well-established 

that the writ may be used though the prisoner 

has been released on parole. Jones v. Cunning- 

66 599 FEDERAL REPORTER, 2d SERIES 

Court of Appeals, which affirmed the con- 

viction. Freeman v. State, 130 Ga.App. 718, 

204 S.E2d 445 (1974) (not raising the 

grounds urged here). Freeman then insti- 

tuted a state habeas corpus application, 

alleging, inter alia, that he had been denied 

due process of law in violation of the 14th 

Amendment because the state had deprived 
him of a fair trial by knowingly suppressing 

exculpatory evidence. The state habeas 

court denied the writ after an evidentiary 

hearing and state review was exhausted 
when the Georgia Supreme Court refused 

to hear the appeal (both actions unreport- 

ed). Freeman filed a § 2254 petition in 

federal court, which was “dismissed” by the 

district court based on a magistrates rec- 

ommendation to deny the petition without 

evidentiary hearing. 

The facts present a bizarre murder-love 

story revolving around a mysterious Dar- 

lene McLane (a/k/a Darlene Brooks and 

subsequently Darlene Fitzgerald). The 

principal characters are these: Holman 

Freeman, a sometimes non-paid employee 

of Seymour Zimmerman, the proprietor of 
an Atlanta nightclub; Darlene Brooks 

McLane, the former wife of an alleged 

pimp, Paul McLane, and present wife of 

former Atlanta homicide detective Richard 

Fitzgerald; and two ex-convicts, Ray Hill 

and Frank Saffles. 

The dime store novel scenario began 
when a former female employee of Zimmer- 

man asked to return to work at his night- 

club, having become disenchanted with 

work as a prostitute for Paul McLane. 

Zimmerman consented, thereby enraging 

McLane, who came to express his displeas- 

ure with Zimmerman face to face. To em- 

phasize his dissatisfaction, McLane came to 

Zimmerman’s nightclub armed. Upon en- 

tering the bar, McLane was confronted by 

Freeman, who, while acting as an unpaid 

bouncer, relieved McLane of his pistol and 

beat him up in the process, thereby exacer- 

ham, 37] U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 

(1963). 

2. Freeman was not retried on the murder 

charge and the case has been dead docketed. 

  

      

  

    

  

bating McLane’s unhapj 

man. 

Later, McLane gather 

his apartment to hatch 

merman and Freeman ! 

merman’s nightclub. | 

ened by the plan and d 

husband. Needing som 

found comfort in Ray 

leased convict, who had 

pal.” Darlene and H 

sponding for several y 

carceration and when H 

wanted to get to kno 

Darlene needed a frien 

tion in Hill. Hill sense 

a quick buck and arra 

Zimmerman to warn hi 

in hopes of receiving 

information. Zimmern 

“pig in the poke” and t 

Atlanta police depart: 

information.  Findin 

McLane’s purchasing g 

be true, Zimmerman f 

help. 

A short time later, 

club asking for more 

tion for his life savin 

merman was unavaila 

Freeman, directing h 

sage. Zimmerman co 

nish only an additic 

Freeman to notify an 

Hill. 

Hill refused to com 

the money so a mee! 

the early morning ho 

Buckhead. Darlene 
was accompanied 

recently released in 

met in prison—to & 

Both men had been 

Saffles was playing ° 

derringer that he had 

and Darlene later 1 

a .38 cal. pistol. Da: 

and parked near the 

ly ‘thereafter, as fo 

the group noticed F' 

nearby car; as he aj 

 



ffirmed the con- 

. 130 Ga.App. 718, 

(not. raising the 
ceman then insti- 
rpus application, 

¢ had been denied 

lation of the 14th 

state had deprived 
vingly suppressing 

'he state habeas 

er an evidentiary 
~ was exhausted 

me Court refused 

actions unreport- 
2254 petition in 

‘dismissed” by the 

magistrate’s rec- 

: petition without 

zarre murder-love 

mysterious Dar- 

lene Brooks and 
Fitzgerald). The 

these: Holman 

on-paid employee 

the proprietor of 

Darlene Brooks 

fe of an alleged 

i present wife of 

detective Richard 
onvicts, Ray Hill 

scenario began 

ployee of Zimmer- 
work at his night- 

iisenchanted with 

‘or Paul McLane. 

thereby enraging 

press his displeas- 
e to face. To em- 

., McLane came to 

armed. Upon en- 

vas confronted by 

ting as an unpaid 

: of his pistol and 

s, thereby exacer- 

t. 373, 9 L.Ed.2d 285 

ed on the murder 

heen dead docketed. 

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FREEMAN v. STATE OF GA. 67 

Cite as 599 F.2d 65 (1979) 

bating McLane’s unhappiness with Zimmer- 

man. 

Later, McLane gathered a few cronies at 
his apartment to hatch a plot to kill Zim- 
merman and Freeman by blowing up Zim- 

merman’s nightclub. Darlene was fright- 

ened by the plan and decided to leave her 

husband. Needing someone to turn to, she 

found comfort in Ray Hill, a recently re- 

leased convict, who had been Darlene’s “pen 

pal.” Darlene and Hill had been corre- 

sponding for several years during Hill's in- 

carceration and when Hill got out of jail, he 

wanted to get to know his loyal pen pal. 

Darlene needed a friend and found protec- 

tion in Hill. Hill sensed an opportunity for 

a quick buck and arranged a meeting with 

Zimmerman to warn him of McLane’s plot, 

in hopes of receiving a “reward” for this 

information. Zimmerman was not buying a 

“pig in the poke” and had a “contact” at the 

Atlanta police department check out this 

information. Finding Hill's tip about 

McLane’s purchasing guns and explosives to 

be true, Zimmerman gave Hill $500 for his 

help. 

A short time later, Hill called the night- 

club asking for more money as compensa- 

tion for his life saving information. Zim- 

merman was unavailable so Hill spoke with 

Freeman, directing him to relay the mes- 

sage. Zimmerman concluded he would fur- 

nish only an additional $100, and asked 

Freeman to notify and deliver the money to 

Hill. 

Hill refused to come to the bar to pick up 

the money so a meeting was arranged for 

the early morning hours in a parking lot in 

Buckhead. Darlene picked up Hill, who 

was accompanied by Saffles—another 

recently released inmate whom Hill had 

met in prison—to attend the rendezvous. 

Both men had been drinking all evening. 

Saffles was playing with a two shot .22 cal. 

derringer that he had taken from his pocket 

and- Darlene later revealed that Hill had 

a .38 cal. pistol. Darlene’s car arrived early 

and parked near the meeting place. Short- 

ly thereafter, as found by the magistrate, 

the group noticed Freeman emerge from a 

nearby car; as he approached Darlene’s car 

from the passenger’s side, Hill was sitting 

in the front passenger's seat, Saffles was 

behind Hill, and Darlene was at the wheel. 

Still, according to the magistrate, there was 
some small talk and Freeman reached into 

the car to pull a cigarette from Hill's 

mouth, as he was about to light the filter. 

At this point in the scenario, the shooting 

began and the theories diverge, with Free- 

man contending he fired in self-defense 

only after Hill and Saffles unexpectedly 

drew their weapons and attempted to shoot 

him, whereas the state argued that Hill was 

unarmed and was shot down in cold blood, 

with Saffles only drawing his weapon after 

Freeman started shooting. 

When the smoke cleared, Hill and Saffles 

were dead. Darlene received only a few 

scratches. Two pistols were found in Dar- 

lene’s Cadillac—the .22 derringer and a .38. 

Both had been fired, with only spent car- 

tridges remaining in the guns. 

At trial, the state attempted to establish 

a gangland type killing, whereby Freeman 

and Darlene plotted with others to kill Hill 

and Saffles. In support of its theory, the 

state presented the testimony of two eye- 

witnesses other than Darlene. Both testi- 

fied that several cars drove up to Darlene’s 

Cadillac, Freeman emerged from one car 

shooting a pistol into the Cadillac from the 

passenger’s side, and that only after the 

shooting started was a weaker sounding 

shot heard emanating from the car. One of 

these eyewitnesses testified that immedi- 

ately after the shooting, he looked into the 

car and saw no pistol present near Hill but 

a derringer lying near Saffles. A few min- 

utes later, the witness testified, another 

man approached from the driver’s side and 

leaned into the car, and that immediately 

thereafter he again looked into the car and 

saw a pistol lying in the seat next to Hill. 

The prosecutor evidently considered this ev- 

idence that a confederate of Freeman's 

planted the .38 next to the body of Hill 

important, spending a significant portion of 

his opening and closing argument stressing 

that Hill was unarmed. Since the jury 

found only manslaughter as to Saffles but 

first degree murder as to Hill, it too must



   
have considered this evidence significant 

because the facts surrounding the killing of 

both men were the same except the jury 

knew Saffles was armed but had heard 
evidence and argument that. Hill was not. 

Further, although these witnesses testified 

that Freeman fired first, the jury apparent- 

ly considered one of them at least partially 

unworthy of belief as it acquitted Freeman 
on the charge of aggravated assault on the 

witness even though the witness testified 

that Freeman had tried to shoot him. 

The appeal centers around the elusive 

Darlene and her failure to appear at Free- 

man’s state trial. Immediately after the 

shooting, the police got an ambiguous state- 

ment from Darlene that could be read as 

consistent with both the state’s theory and 
Freeman's defense. It was subsequently 

recanted in part, and significantly, did not 

include the testimony that Hill was armed. 

After being held briefly as a material wit- 

ness, Darlene seemed to disappear. In the 

course of attempting to prepare its case, the 

state sought to locate Darlene and even had 

a material witness arrest warrant for her. 

Agents of the district attorney could not 

find her at the address furnished. Sgt. 

Richard Fitzgerald, a city homicide detec- 

tive who investigated the shooting, was re- 

quested to help locate Darlene but consist- 

ently maintained that he did not know of 

her whereabouts. At the trial, he testified 

under oath that he did not “know exactly” 

where she had been during the months pre- 

ceding the trial and that although the pros- 

ecutor had asked him for an address for 

Darlene, he had not furnished any such 

address. In fact, Fitzgerald had not only 

located Darlene but he had become her 

trusted confident. He had spoken with her 

on a monthly basis from the time of the 

shooting until the trial and had been to her 

apartment three weeks prior to trial? For 

apparently personal reasons, Fitzgerald had 

3. Finding that Sgt. Fitzgerald's conduct in 

concealing Darlene's whereabouts amounted to 

state suppression of favorable evidence in vio- 

lation of the 14th Amendment, we do not reach 

the question whether his testimony that he did 

not “know exactly where she ha[d] been’ dur- 

ing the month preceding the trial was techni- 

68 599 FEDERAL REPORTER, 2d SERIES 

helped conceal Darlene in an attempt to 

shield the witness from some apprehended 

danger involving her violence prone hus- 

band or some other spurious or illogical 

reason, allegedly involving politically war- 

ring factions within the Atlanta Police De- 

partment. This close relationship developed 

into an O’Henry ending as Darlene married 

Sgt. Fitzgerald one year after the trial. 

[1] The issues thus presented in this ap- 
peal are whether the actions of detective 

Fitzgerald in knowingly concealing Darlene 

amounted to the state suppressing evidence 

favorable to the accused, thereby depriving 

him of due process in violation of the 14th 

Amendment, and whether Freeman waived 

his right to object to Darlene’s failure to 

appear by not attempting to subpoena her 

or moving for a continuance or mistrial 

when she did not appear. .The state habeas 

court denied the writ, finding no suppres- 

sion by the state of favorable evidence and 

in any event, that Freeman waived any 

objection by failing to look for Darlene. 

The district court simply dismissed the fed- 

eral petition based on the magistrates re- 

port. 

The state attempts to justify the district 

court’s dismissal of the petition on three 

grounds. First, it argues that by failing to 

subpoena Darlene, by failing to make a 

conscientious effort to find her, and by fail- 

ing to seek any continuance or mistrial 

when she did not appear at trial—all of 

which were the result of calculated trial 

tactical decisions *—Freeman waived any 

entitlement to federal habeas relief under 

Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 

2497, 53 L.Ed.2d 594 (1977). Even absent a 

waiver, the state contends that a dismissal 

of the petition was proper because the evi- 

dence which Freeman alleges was “hidden” 

by the state was neither favorable nor ma- 

terial under United States v. Agurs, 427 

cally perjury, independently requiring reversal. 

See, e. g. United States v. Carter, 566 F.2d 1265 

(5th Cir. 1978). 

4. By offering no evidence, applicant was grant- 

ed the closing argument during the guilt phase 

of the trial.     
  

  

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U.S. 97, 96 S.Ct. 2392, 49 | 

Finally, the state urges ! 

motivated actions of Sgt. 

be imputed to the state 

“suppression” by the stat 

dy violation, even if the 

have been favorable and 

not waived. Brady v. | 

83, 83 S.Ct. 1194, 10 ! 

We reject these cor 

Freeman's allegations : 

the presumptive corre: 

court’s findings. We a 

decision of a state court 

tional questions in habs 

U.S.C. § 22564(d). Our 

convinces us that Freer 

due process violation ai 

decision of the Georgia 

[2] If the state deli 

eyewitness to a crime, 

violated and habeas m: 

the context of the ent: 

witness’ testimony wa 

created a reasonable d« 

otherwise have existe: 

v. Agurs, 4271 U.S. 97 

2392, 49 L.Ed.2d 34 

Blackburn, 571 F.2d 3 

cert. denied 439 U.S. 

L.Ed.2d 186 (1979). 

the state habeas cou 

that Sgt. Fitzgerald 

Darlene, a key eyev 

killing® However, b 

Fitzgerald's motivati 

in anyway an officia 

5. The state habeas co 

The evidence at ! 

proceedings reveal 

comments made b 

aware of where th 

and as a matter © 

between the time 

of the trial had bee 

on at least one O« 

cated with her on 

aware of the pre: 

ment and the nan: 

ently during thi 

changed her nam¢ 

other name.) 

The evidence in 

withstanding the



   'ERIES 

   
al Darlene in ap attempt to Itness from some apprehended 
ving her violence prone hus- 
'¢ other spurious or illogical 
dly involving politically wap- 
within the Atlanta Police De- 118 close relationship developed 
ry ending as Darlene married Id one year after the trial, 

es thus presented in this ap- 
her the actions of detective 
nowingly concealing Darlene 
© state Suppressing evidence 
e accused, thereby depriving 
‘ess In violation of the 14th 
«d whether Freeman wajveq 
cet to Darlene’s failure to 
(ttempting to subpoena her 
a continuance or mistrial 

- appear, -The state habeas 
writ, finding no suppres- 
of favorable evidence and 

at Freeman wajved any 
ing to look for Darlene. 
simply dismissed the fed- 

d on the magistrate’s re- 

   
   

  

   

  

'Pts to justify the district 
f the petition on three 
argues that by failing to 
by failing to make a 

. to find her, and by fail- 
continuance or mistrial 
appear at trial—al] of 
sult of calculated trial 
Freeman wajved any 

ral habeas relief under 
5 433 U.S. 72, 97 S.Ct. 
(1977). Even absent a 
itends that a dismissal 
roper because the evi- 
| alleges was “hidden” 
her favorable nor ma- 
States v, Agurs, 427 

      
    

    
    
    
    

    

  

    

   

   

  

fently requiring reversal. 
v. Carter, 566 F.2d 1265 

    

    

    

  

€, applicant was grant- 
t during the guilt phase 

    
    

    

  

  
  

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FREEMAN v. STATE OF GA. 69 
Cite as 599 F.2d 85 (1979) 

U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). 

Finally, the state urges that the personally 

motivated actions of Sgt. Fitzgerald cannot 

be imputed to the state, so there was no 

“suppression” by the state and thus no Bra- 

dy violation, even if the testimony would 

have been favorable and the objection was 

not waived. Brady v. Maryland, 373 U.S. 

83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). 

We reject these contentions and find 

Freeman's allegations sufficient to rebut 

the presumptive correctness of the state 

court's findings. We are not bound by the 

decision of a state court on federal constitu- 

tional questions in habeas proceedings. 28 

U.S.C. § 2254(d). Our study of the record 

convinces us that Freeman has established a 

due process violation and that the contrary 

decision of the Georgia court cannot stand. 

[2] If the state deliberately conceals an 

eyewitness to a crime, due process has been 

violated and habeas must be granted if, in 

the context of the entire trial, the missing 

witness’ testimony was such as might have 

created a reasonable doubt which would not 

otherwise have existed. See United States 

v. Agurs, 427 U.S. 97, 112 n. 21, 96 S.Ct. 

2392, 49 L.Ed.2d 342 (1976); Lockett v. 

Blackburn, 571 F.2d 309, 314 (5th Cir. 1978), 

cert. denied 439 U.S. 873, 99 S.Ct. 207, 58 

L.Ed.2d 186 (1979). There is no dispute, as 

the state habeas court specifically found, 

that Sgt. Fitzgerald deliberately concealed 

Darlene, a key eyewitness to the double- 

killing.® However, because the court found 

Fitzgerald's motivation to be personal, not 

in anyway an official attempt to prejudice 

3. The state habeas court found: 

The evidence at the present habeas corpus 

proceedings revealed that contrary to the 

comments made by Sgt. Fitzgerald, he was 

aware of where this particular witness lived 

and as a matter of fact during the interval 

between the time of indictment and the time 

of the trial had been to her place of residence 

on at least one occasion and had communi- 

cated with her on several occasions. He was 

aware of the precise location of the apart- 

ment and the name she was using. (Appar- 

ently during this time interval she had 

changed her name and was going under some 
other name.) 

The evidence in this case is clear that not- 

withstanding the repeated efforts of the Dis- 

the case against the defendant, and, in any 

event, lacking any possible material preju- 
dicial effect on the defendant, the court 
was unwilling to set aside what it con- 
sidered to have been a fair trial and a just 
result. Additionally, the court found that 

the defendant's failure to subpoena or oth- 
erwise attempt to secure the attendance of 

Darlene constituted a waiver of any objec- 
tion due to her failure to appear. We find, 
however, that Sgt. Fitzgerald's conduct is 

attributable to the state regardless of his 
motivation, that his admittedly willful and 
intentional efforts to conceal this witness 

prejudiced the defense, and that under the 
circumstances of this case, there was no 
waiver. 

[3] First, we cannot accep* the state's 

reasoning that because Sgt. Fitzgerald's ac- 

tions were personally motivated and the 
other state officers’ conduct was proper, 
Fitzgerald's actions cannot be imputed to 

the state. We feel that when an investigat- 
ing police officer willfully and intentionally 

conceals material information, regardless of 
his motivation and the otherwise proper 

conduct of the state attorney, the police- 
man’s conduct must be imputed to the state 

as part of the prosecution team. Smith v. 
Florida, 410 F.2d 1349, 1351 (5th Cir. 1969). 
Smith relied on Barbee v. Warden, 331 F.2d 
842 (4th Cir. 1964), where the Fourth Cir- 

cuit Court of Appeals stated: 

The police are also part of the prosecu- 
tion, and the taint on the trial is no less if 

they, rather than the State's Attorney, 

were guilty of the nondisclosure. 

trict Attorney to elicit the whereabouts of 

this witness from Sgt. Fitzgerald and not- 

withstanding the efforts of the District Attor- 

ney’s Office to locate this witness, Sgt. Fitz- 

gerald willfully and intentionally withheld 

this information. 

This action and conduct by Sgt. Fitzgerald 

in a capital case was the most reprehensible 

and gross act of misconduct by an investigat- 

ing police officer that it has ever been the 

misfortune of the undersigned to be involved 

in, Sgt. Fitzgerald's conduct was calculated 

and intentional and without any justification 

or excuse. 

(emphasis added)



   
The duty to disclosure is that of the 

state, which ordinarily acts through the 

prosecuting attorney; but if he too is the 

victim of police suppression of the materi- 

al information, the state’s failure is not 

on that account excused. 

See Schneider v. Estelle, 552 F.2d 593 (5th 
Cir. 1971); Jackson v. Wainwright, 390 F.2d 

288, 296 (5th Cir. 1968); Curran v. State of 

Del., 259 F.2d 707, 713 (3rd Cir. 1958) (opin- 

ion below 154 F.Supp. 27); cf. Fitzgerald v. 

Estelle, 505 F.2d 1334, 1336 (5th Cir. 1975) 

(en banc). : 

Even if Sgt. Fitzgerald concealed the 

whereabouts of Darlene and his actions are 

attributable to the state, the rule of Brady 

v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 

L.Ed.2d 215 (1963), is violated only if favor- 

able evidence is suppressed by the state. 

The state habeas court and the magistrate 

found that Darlene’s testimony would not 

have been favorable to Freeman. Both rea- 

soned that Freeman had available to him in 

substance what the testimony of Darlene 

would have been had she testified, in the 

form of her written statement taken by the 

police shortly after the shootings occurred. 

While we agree that in some respects Dar- 

lene’s subsequent habeas testimony was not 

enlightening or favorable, both the district 

court and the magistrate overlooked the 

significance of her habeas testimony that 
Hill came to the meeting armed. This evi- 

dence was not included in Darlene’s original 

statement to the police and therefore was 

not available in any form to Freeman at the 

trial. 

Darlene would have testified that on the 

night of the shootings, Hill had in his pos- 

session the .38 revolver found beside his 

body, had drawn the gun while waiting for 

Freeman to arrive, and had placed it on the 

seat beside him. She also would have testi- 

fied that Freeman and a single unknown 

companion were in the parking lot in a 

single car—rather than several cars with an 

army of assassins—and that Freeman ap- 

proached the car alone, on foot, with no 

6. The state habeas court purported to make a 

fact finding that no prejudice to Freeman oc- 

curred. The question of prejudice is a question 

  

70 599 FEDERAL REPORTER, 2d SERIES 

weapon in hand, and engaged in friendly 

conversation prior to the sudden eruption of 

gun fire. This testimony would have refut- 

ed a major prosecution argument that Hill 

was unarmed and would have given color to 

Freeman's self-defense claim. This evi- 

dence was obviously favorable to Freeman 

and it was clearly erroneous to hold other- 

wise. 

Nevertheless, even if the state suppressed 

favorable evidence, Freeman is not entitled 

to habeas relief unless he was prejudiced.® 

The degree of prejudice a defendant must 

prove when the state suppresses favorable 

evidence varies according to whether the 

defendant specifically sought the sup- 

pressed evidence before trial. United 

States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 

49 L.Ed.2d 342 (1976). Here, Freeman did 

not make any effort to locate Darlene prior 

to trial so unless the failure to search could 

be considered to be the state’s fault, Free- 

man must prove that Darlene’s testimony 

was such as might have created a reasona- 

ble doubt which did not otherwise exist. 

We feel it did. 

Many key facts in this case were in dis- 

pute. The jury evidently disbelieved a sub- 

stantial portion of the prosecution’s evi- 

dence since it acquitted Freeman on the 

aggravated assault charge and convicted 

him only of manslaughter with respect to 

Saffles even though he was indicted for 

first degree murder as to both Hill and 

Saffles. As stated earlier, the facts sur- 

rounding the killing of both were the same 

except that the jury knew Saffles was arm- 

ed but had heard evidence and argument 

tending to show Hill was not. Therefore, it 

appears that the jury considered the evi- 

dence that Hill was unarmed and that the 

discharged .38 was planted near his body by 

Freeman's confederate very important and, 

in this context, it seems quite possible that 

if the jury had heard Darlene’s testimony 

that Hill was in fact armed, with the gun 

beside him, they might have been influ- 

enced to acquit Freeman on all charges. 

of law, therefore, the state court finding on this 

point is not binding on this court. 

    

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Finally, we must con: 

waiver. The state hab 

that Freeman's failure 

tempt to secure the at 

prior to the commencer 

failure to move for any 

the trial in order to ¢ 

and his failure to ma! 

ment to the police con 

any objection to her fa 

to Freeman's failure t 

ance to subpoena Darl: 

trial because of her 

of which remedies co 

matter to be decided 

grounds—the district 

magistrate’s report, f 

claim which precluded 

citing Wainwright v. 

S.Ct. 2497, 563 L.Ed.2d 

Henderson, 425 U.S. 

L.Ed.2d 149 (1976); . 

F.2d 506 (5th Cir. 1 

556 F.2d 1826 (5th 

argues that by failin 

and relying instead 

her, Freeman waived 

uance or to a mistr 

failure to subpoen: 

waiver of a contemp 

cluding federal h: 

Sykes. We disagre: 

In Sykes, the Sup 

defendant who fail: 

lished state procedu 

his right to comp! 

violation. Howeve 

waiver case. The ¢ 

any specific rule of 

Freeman violated; 

in the totality of ! 

man should have u 

lene. It is not ev 

court relied on sta 

clusion, since it cit 

eral authority to si 

ther, even if the «© 

of state procedur: 

not convinced tha! 

procedural rule th 

quires federal cou 

 



| engaged in friendly 
the sudden eruption of 
ony would have refut- 
n argument that Hill 
uld have given color to 
se claim. This evi- 

favorable to Freeman 

roneous to hold other- 

'f the state suppressed 

reeman is not entitled 

s he was prejudiced.® 

ice a defendant must 

suppresses favorable 

ding to whether the 

y sought the sup- 

fore trial. United 

S. 97, 96 S.Ct. 2392, 

Here, Freeman did 

» locate Darlene prior 

ailure to search could 

e state's fault, Free- 

Darlene’s testimony 
e created a reasona- 

not otherwise exist. 

his case were in dis- 

tly disbelieved a sub- 
1e prosecution’s evi- 

ed Freeman on the 
narge and convicted 

hter with respect to 

he was indicted for 

s to both Hill and 

rlier, the facts sur- 

both were the same 

ew Saffles was arm- 

ence and argument 

s not. Therefore, it 

considered the evi- 
armed and that the 

ted near his body by 

very important and, 

s quite possible that 

Darlene’s testimony 

rmed, with the gun 

it have been influ- 

an on all charges. 

e court finding on this 

his court, 

  

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FUE ET Ly ai ales Gh SE (NRO Ba Fl ii i 

FREEMAN v. STATE OF GA. 71 
   

Cite as 599 F.2d 65 (1979) 

Finally, we must consider the question of 

waiver. The state habeas court concluded 

that Freeman's failure to subpoena or at- 

tempt to secure the attendance of Darlene 

prior to the commencement of the trial, his 

failure to move for any continuance during 

the trial in order to secure her presence, 

and his failure to make use of her state- 

ment to the police constituted a waiver of 

any objection to her failure to appear. Due 

to Freeman's failure to request a continu- 

ance to subpoena Darlene or request a mis- 

trial because of her unavailability—either 

of which remedies could have allowed the 

matter to be decided on independent state 

grounds—the district court, in adopting the 

magistrate’s report, found a waiver of the 

claim which precluded federal habeas relief, 

citing Wainwright v. Sykes, 433 U.S. 72, 97 

S.Ct. 2497, 563 L.Ed.2d 594 (1977); Francis v. 

Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 

L.Ed.2d 149 (1976); Jiminez v. Estelle, 557 

F.2d 506 (5th Cir. 1971); Loud v. Estelle, 

556 F.2d 1326 (5th Cir. 1977). The state 

argues that by failing to subpoena Darlene 

and relying instead upon the state to call 

her, Freeman waived any right to a contin- 

uance or to a mistrial; thus, his knowing 

failure to subpoena her operated “as a 

waiver of a contemporaneous objection pre- 

cluding federal habeas review” under 

Sykes. We disagree. 

In Sykes, the Supreme Court held that a 

defendant who fails to comply with estab- 

lished state procedures may thereby waive 

his right to complain of a constitutional 

violation. However, this is not a typical 

waiver case. The state court does not cite 

any specific rule of state procedure which 

Freeman violated; it simply concluded that 

in the totality of the circumstances, Free- 

man should have tried harder to locate Dar- 

lene. It is not even clear that the state 

court relied on state law to reach this con- 

clusion, since it cites neither state nor fed- 

eral authority to support its position. Fur- 

ther, even if the state court applied a rule 

of state procedure to find waiver, we are 

not convinced that this is the type of state 

procedural rule that the Supreme Court re- 

quires federal courts to defer to. 

The state argues that Freeman failed to 

comply with Georgia's contemporaneous ob- 

jection rule by failing to move for a mistrial 

or continuance to try to locate Darlene, and 

that this inaction was the result of an intel- 

ligent choice among trial tactics, thus a 

deliberate waiver. 

We cannot fit the facts of this case so 

neatly into a waiver pattern. Although the 

decision not to introduce Darlene’s police 

statement may have been a calculated trial 

decision, there is no evidence of “sandbag- 

ging” by Freeman's counsel. Sykes 433 

U.S. at 89, 97 S.Ct. 2497. Based on Dar- 

lene’s police statement—which did not in- 

clude the exculpatory evidence—defense 

counsel justifiably felt that her testimony 

would not have been valuable as a defense 

witness. His intention was to cross-exam- 

ine her after she was called as a states 

witness. When she did not appear at trial, 

defense counsel said he was shocked be- 

cause he felt she was the key, if not the 

only prosecution witness; and began efforts 

to locate the witness. However, it was not 

until Darlene revealed her whereabouts 

through a newspaper reporter that defense 

counsel was able to depose her and later 

discover the exculpatory evidence. There is 

absolutely no indication that Freeman's 

counsel by his trial tactics, intended to take 

his chance on a verdict of not guilty in the 

state court knowing he had an ace in the 

pocket with a federal constitutional claim to 

employ if the initial gamble did not pay off. 

From the record before us, it appears that 

the state trial would have been the “main 

event” rather than a “tryout on the road” 

for what counsel intended would later be 

the determinative federal habeas hearing 

except that the star witness was concealed 

by the state. 

[4] Even if Freeman failed to comply 

with state procedure within the meaning of 

Francis and Sykes, he has not waived his 

federal constitutional complaint if he can 

show cause for the failure to comply and 

prejudice as a result. The “prejudice” is 

self evident. Darlene’s incomplete police 

statement and Fitzgerald's concealing her 

whereabouts was the “cause” for his failure    
 



  

72 599 FEDERAL REPORTER, 2d SERIES 

to subpoena and/or locate her. While, as 

the state contends, it was a matter of trial 

tactics that led Freeman not to subpoena 

Darlene or introduce her police statement 

because he thought it unfavorable, the state 

ignores the fact that this strategy was 

formed in reliance on Darlene’s police state- 

ment, which did not contain the exculpatory 

evidence. When a police statement mis- 

leads the defense into believing that evi- 

dence will not be favorable, the state can- 

not thereafter argue that -it was a waiver 

not to request it. A defendant cannot have 

waived more than what he knew existed. 

Freeman was not required to subpoena a 

witness whose report to the police contained 

nothing favorable to his case. Moreover, 

we cannot overlook the fact that even if he 

had tried to locate Darlene, it would have 

been futile because of her concealment. If 

the state, with all its resources, could not 

locate her, it is difficult to imagine how the 

defense counsel could have. Therefore, we 

find that Freeman's constitutional conten- 
tion was not waived. 

. For these reasons, we reverse and remand 

the case to the district court to issue the 

writ unless the state elects to retry Free- 
man promptly. 

REVERSED AND REMANDED. 

Ww 

T 

UNITED STATES of America, 

Plaintiff-Appellee, 

Vv. 

David BUSH, Defendant-Appellant. 

No. 78-5296. 

United States Court of Appeals, 

Fifth Circuit. 

July 18, 1979. 

Rehearing and Rehearing Kn Bane 

Denied Sept. 19, 1979. 

Defendant was convicted before the 

United States District Court for the South- 

  

ern District of Florida, Charles B. Fulton, 

J., of knowingly and willfully making false 

statements to insured bank for purpose of 

influencing bank to advance funds, and he 

appealed. The Court of Appeals, Thorn- 

berry, Circuit Judge, held that: (1) record 

failed to establish fatal variance between 

proof and indictment charging that book- 

keeper for home builder had submitted let- 

ter requesting payment for construction 

that had not been done in violation of con- 

struction loan disbursements schedule, not- 

- withstanding that indictment had not al- 

leged “a written disbursements schedule” 

and Government proved that checklists rep- 

resented the disbursement agreement and, 

even if there was technical variance, preju- 

dice was absent, inasmuch as Government 

had provided checklists to defense before 

trial; (2) material false statements, if any, 

violated statute, even if false statements 

had been given with knowledge, consent or 

duplicity of bank officer, and (3) refusal to 

give requested charge on ignorance of the 

law did not require reversal, inasmuch as 

court had correctly charged jury as to spe- 

cific intent and willfulness, court had given 

complete instruction on effective advice of 

counsel, the false statements of which de- 

fendant was convicted had been made be- 

fore defendant had consulted an attorney 

and defendant had been able fully to argue 

his lack of willfulness to jury. 

Affirmed. 

1. Fraud &=69(2) 

Indictment charging that bookkeeper 

for home builder had submitted letter to 

bank requesting payment for construction 

that had not been done in violation of con- 

struction loan disbursements schedule was 

sufficient to charge federal offense of 

knowingly and willfully making false state- 

ments to insured bank for purpose of influ- 

encing bank to advance funds. 18 U.S.C.A. 

§ 1014. 

2. Criminal Law e=1167(1) 

Fraud ¢=69(2) 

Record failed to establish fatal vari- 

ance between proof and indictment charg- 

£1 
Lg a 

iss
: 

  
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ing that bookk: 

submitted lett: 

construction th: 

lation of cons 

schedule, thus 

false statement 

purpose of inf 

funds, notwith: 

not alleged “a 

ule” and Gover: 

represented th 

and, even if tl 

prejudice was : 

ment had provi 

fore trial. 18 ' 

3. Criminal La: 

In prosecu 
ment to insure 

ment of funds, 

requested instr: 

fendant’s theor 

of most of req: 

given by trial j 
tions were sub 

contained judic 

version of facts 

4. Fraud &=68. 

Material f: 

lated statute j 

made to insure 

encing bank to 

statements had 

consent or duj 

U.S.C.A. § 1014 

5. Criminal La: 

In prosecut 

ment to insured 

encing bank to 

give requested 
law did not re: 

court had corre: 

cific intent and 

complete instru 

1. 18 USC. § i 

Whoever kno 

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influencing in 

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by the Fede: 

tion,



  

   
    
   

for analyzing 

4 r of Decem- 

Sm 1971. The 
fe legal dispute 

&% wrrespondence 

La of the “Parade 

# sppeared in the 

ya's “Parade of 

ed new products 

als were not 

+ which they re- 

slam. A typical 

of Progress’ col- 

.h of the product, 

se product includ- 

s of the manufac- 

in. 

.~ to Peter Dryden 

_.ading Dryden to 

place grate in his 

jumn. His first 

+ in September or 

‘uded the informa- 

FREEMAN v. STATE OF GA. 65 
Cite as 599 F. 

cient to place the product on sale. It is this 

conclusion which the appellants attack. 

[6] The trial court concluded that in or- 

der for Bergstrom’s invention to be classi- 

fied as “on sale” that: (1) the patentee 

must have had a present intent to sell, and 

(2) that intent must have been communicat- 

ed to a prospective purchaser for the pur- 

pose of eliciting a sale, and not for some 

other reason. Bergstrom v. Sears, Roebuck 

and Co., supra, at 223. We agree with the 

trial court's well-reasoned conclusions of 

law concerning the “on sale” provisions of 

§ 102(b) and their application to this case. 

Bergstrom v. Sears, Roebuck and Co., su- 

2d 65 (1979) 

District Court for the Northern District of 

Georgia, Albert J. Henderson, Jr., Chief 

Judge, denied relief and petitioner appeal- 

ed. The Court of Appeals, Tuttle, Circuit 

Judge, held that a police detective’s know- 

ingly concealing a witness amounted to 

state suppression of evidence favorable to 

the petitioner, thereby depriving him of due 

process, and the petitioner did not waive his 

right to object to the witness’ failure to 

appear by not attempting to subpoena her 

or moving for a continuance or mistrial 

when she did not appear. 

Reversed and remanded. 

pra, at 223-224. In affirming we therefore ° 

adopt the district court’s conclusions of law 

pertaining to the “on sale” provisions of 

§ 102(b) as those conclusions apply to the 
facts of this case. 

Judgment affirmed. 

1. Constitutional Law &=268(5) 

Criminal Law &=728(2) 

Police detective’s knowingly concealing 

witness amounted to state suppression of 

  

   
evidence favorable to accused, thereby de- 

priving him of due process, where evidence 

might have created reasonable doubt which 

did not otherwise exist; and accused did 

not waive his right to object to witness’ 

failure to appear by not attempting to sub- 

poena her by moving for continuance or 

mistrial when she did not appear, where 

police statement had misled defense counsel 

into believing that witness’ 

would not be favorable. 

Amend. 14. 

    

    

  

    

   

+ be obtained from 

.. 51 Jona Lane, St. ( Q 

319.95 + shipping 
4 |< h < a 

urt found, among 
: 

trom did not write 
- EE 

vo purchaser of the 

ron v. Sears, 

a 217-219. In late 

jergstrom wrote : a 

concerning his in- 

formation contained 

out-of-date by that 

ved no reply to er- 

d sent to Dryden and v2 

tion of receiving the 

‘on concerning Dry- 

4 in the “Parade of 

rgstrom’s correspon- 

‘as the only activity 

4. 1971 which could 

| as placing his inven- 

| court concluded that 

y Dryden were insuffi- 

(he trial court's findings ISS 

ning, Bergstrom's com- 

k Kelley, a publisher's 

et Magazine. 

testimony 

U.S.C.A.Const. 

Holman FREEMAN, Petitioner- 

Appellant, 

Epos fro Y. 

5k STATE OF GEORGIA, 

nfo Respondent-Appellee. ’ 

Nyad | No. 78-2871. 
i St 

Fifth Circuit. 

2. Constitutional Law ¢=268(5) 

Habeas Corpus ¢=25.1(8) 

When state deliberately conceals eye- 

witness to crime, due process has been vio- 

lated and habeas must be granted if, in 

context of entire trial, missing witness’ tes- 

timony was such as might have created 
als, reasonable doubt which would not other- 

wise have existed. U.S.C.A.Const. Amend. 

July 18, 1979. 1 A 
“ 

3. Criminal Law ¢=700 

  

   Georgia prisoner filed a petition for When investigating police officer will- 
wnt of habeas corpus. The United States fully and intentionally concealed material 

[fs Sr users 

 



    

Fi
) 

  

  

66 599 FEDERAL REVORTER, 2d SERIES 

information, regardless of his motivation 

and otherwise proper conduct of state attor- 

ney, policeman’s conduct must be imputed 

to state as part of prosecution team. 

4. Criminal Law &=728(2) 

When police statement misleads de- 

fense into believing that evidence will not 

be favorable, state cannot thereafter argue 

that accused waived right to such evidence 

by not requesting it. 

Theodore S. Worozbyt, Atlanta, Ga., for 

petitioner-appellant. 

Lewis Slaton, Dist. Atty 

Asst. Dist. Atty. Atlanta, 

dent-appellee. 

   a., 10r respon- 

Appeal from the United States District 

Court for the Northern District of Georgia. 

Before TUTTLE, GODBOLD and RU- 
BIN, Circuit Judges. 

Circuit Judge: 

This habeas appeal involves the effect of 

an investigating city homicide detective’s 

concealment of a key eyewitness. 

~ Freeman is in state custody! pursuant to 

his voluntary _manslanohier consdetion in 

the Fulton County Superior Court for 

shooting one Frank Saffles to death. He 

was indicted for two counts of murder and 

one count of aggravated assault. He was 

convicted of the murder of Ray Hill and the 

killing of Frank Saffles under the volun- 

"ary manslaughter statute, but was acquit- 

ted of aggravated assault on one of the 

eyewitnesses. He received a death sentence 

for the murder conviction and twenty years 

imprisonment for voluntary manslaughter. 

The trial court granted Freeman’s motion 

  

  

  

  

  

  

  

     

Court of Appeals, which affirmed the con- 

viction. Freeman v. State, 130 Ga.App. 718, 

204 S.E.2d 445 (1974) (not raising the 

grounds urged here). Freeman then insti- 

tuted a state habeas corpus application, 

alleging, inter alia, that he had been denied 
due process of law in violation of the 14th 

Amendment because the state had deprive 

him of a fair trial by knowingly suppressing 

exculpatory evidence. The state habeas 

court denied the writ after an evidentiary 

hearing and state review was exhausted 

when the Georgia Supreme Court refused 

to hear the appeal (both actions unreport- 

ed). Freeman filed a § 2254 petition in 

federal court, which was “dismissed” by the 

district court based on a magistrate’s rec- 

ommendation to deny the petition without 

evidentiary hearing. 

The facts present a bizarre murder-love 

story revolving™ around a mysterious Dar- 
  

  

  

for a new trial as to the murder conviction 

on discretionary grounds? but denied the 

motion as to the manslaughter conviction. 

This denial was appealed to the Georgia 

  

1. The fact that Freeman may have been re- 

leased on parole after serving a third of his 

twenty year sentence does not affect § 2254 

habeas jurisdiction since it is well-established 

that the writ may be used though the prisoner 

has been released on parole. Jones v. Cunning- 

“lene McLane (a/k/a Darlene Brooks and 
Riess] 

subsequently Darlene Fitzgerald). The 

principal characters are these: Holman 

Freeman, a sometimes non-paid employee 

of Seymour Zimmerman, the proprietor of 
an Atlanta nightclub; Darlene Brooks 

McLane, the former wife of an alleged 

pimp, Paul McLane, and present wife of 

former Atlanta homicide detective Richard 

Fitzgerald; and two ex-convicts, Ray Hill 

and Frank Saffles. 

The dime store novel scenario began 

when a former female employee of Zimmer- 

man asked to return to work at his night- 

club, having become disenchanted with 

work as a prostitute for Paul McLane. 

Zimmerman consented, thereby enraging 

McLane, who came to express his displeas- 

ure with Zimmerman face to face. To em- 

phasize his dissatisfaction, McLane came to 

Zimmerman'’s nightclub armed. Upon en- 

tering the bar, McLane was confronted by 

Freeman, who, while acting as an unpaid 

bouncer, relieved McLane of his pistol and 

beat him up in the process, thereby exacer- 

  

  

  

ham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 
(1963). 

2. Freeman was not retried on the murder 

charge and the case has been dead docketed. 

      

bating ) 

man. 

Later, 

his apar 

mermarn 

merman 

ened by 
husband 

found ¢ 

leased c 

pal.” .] 

spondin 

carcera’ 

wanted 

Darlene 

tion in 

a quick 

Zimme! 

in hops 

inform: 

“pig in 

Atlant: 

inform 

McLan 

be tru: 

help. 

A sb 

club a 

tion fi 

merm: 

Freen 

sage. 

nish « 

Freen 

Hill. 

Hill 

the m 

the e: 

Buckh 

was 

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met | 

Both 

Saffle 

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a .38 

and | 

ly th 

the g 

near! 

 



      30 Ga. App. 718, 

Tit raising the 
1 then insti- 

application, 

4 ad been denied 

don of the 14th 

gate had deprived 

wingly suppressing 

"e state habeas 

.r an evidentiary 

¢ was exhausted 

=e Court refused 

actions unreport- 

254 petition in 

dismissed” by the 
magistrate’s rec- 

petition without 

arre murder-love 

mysterious Dar- 

lene Brooks and 

‘itzgerald). The 

these: Holman 

n-paid employee 

the proprietor of 

Darlene Brooks 

‘e of an alleged 

present wife of 

detective Richard 

onvicts, Ray Hill 

scenario began 

loyee of Zimmer- 

cork at his night- 

isenchanted with 

r Paul McLane. 

thereby enraging 
press his displeas- 

to face. To em- 

. McLane came to 

rrmed. Upon en- 

vas confronted by 

ing as an unpaid 

of his pistol and 

s, thereby exacer- 

(. 373, 9 L.Ed.2d 285 

ied on the murder 

been dead docketed. 

  

FREEMAN v. STATE OF GA. 67 
“ite as 599 F.2d 65 (1979) 

bating McLane’s unhappiness with Zimmer- 

man. 

Later, McLane gathered a few cronies at 

his apartment to hatch a plot to kill Zim- 

merman and Freeman by blowing up Zim- 

merman’s nightclub. Darlene was fright- 

ened by the plan and decided to leave her 

husband. Needing someone to turn to, she 

found comfort in Ray Hill, a recently re- 

leased convict, who had been Darlene’s “pen 

pal.” Darlene and Hill had been corre- 

sponding for several years during Hill's in- 

carceration and when Hill got out of jail, he 

wanted to get to know his loyal pen pal. 

Darlene needed a friend and found protec- 

tion in Hill. Hill sensed an opportunity for 

a quick buck and arranged a meeting with 

Zimmerman to warn him of MelLane's plot, 

nN Nopes ol receiving a reward. TOF TAls 

Tnformation. Zimmerman was not buying a 

“pig in the poke” and had a “contact” at the 

Atlanta police department check out this 

information. Finding Hill's tip about 

McLane’s purchasing guns and explosives to 

be true, Zimmerman gave Hill $500 for his 
help. 

A short time later, Hill called the night- 

club asking for more money as compensa- 

tion for his life saving information. Zim- 

merman was unavailable so Hill spoke with 

Freeman, directing him to relay the mes- 

sage. Zimmerman concluded he would fur- 

nish only an additional $100, and asked 

Freeman to notify and deliver the money to 
Hill. 

Hill refused to come to the bar to pick up 

the money so a meeting was arranged for 

the early morning hours in a parking lot in 

Buckhead. Darlene picked up Hill, who 

was accompanied by SalTles—another 

recently released inmate whom Hill had 
met in prison—to attend the rendezvous. 

BSthr-mremr=had Deen drinking all evening. 
Saffles was playing with a two shot .22 cal. 

derringer that he had taken from his pocket 

and Darlene later revealed that Hill had 

a 38 cal. pistol. Darlene’s car arrived early 

and parked near the meeting place. Short- 

ly thereafter, as found by the magistrate, 

the group noticed Freeman emerge from a 

nearby car; as he approached Darlene’s car 

from the passenger’s side, Hill was sitting 

in the front passenger's seat, Saffles was 

behind Hill, and Darlene was at the wheel. 

Still, according to the magistrate, there was 

some small talk and Freeman reached into 

the car to pull a cigarette from Hill's 

mouth, as he was about to light the filter. 

At this point in the scenario, the shooting 

hegan and the theories diverge, With Free- 

man_ contending he fired in —sell-Jerehse 
only after Hill and Saffles unexpectedly 

drew their weapons and attempted to shoot 

him, whereas the state argued that Hill was 

unarmed and was shot down in cold Blood, 
with Saffles only drawing his weapon after 

Freeman started shooting. 

When the smoke cleared, Hill and Saffles 

were dead. Darlene received only a few 

scratches. Two pistols were found in Dar- 

lene’s CadilTac—the .22 derringer and a .38. 
Both had been fired, with only spent car- 

tFTdges remaining In the guns. 

At trial, the state attempted to establish 

a gangland type killing, whereby Freeman 

and Darlene plotted with others to kill Hill 

and Saffles. In support of its theory, the 

state presented the testimony of two eye- 

witnesses other than Darlene. Both testi- 

fied that several cars drove up to Darlene’s 

Cadillac, Freeman emerged from one car 

shooting a pistol into the Cadillac from the 

passenger’s side, and that only after the 

shooting started was a weaker sounding 

shot heard emanating from the car. One of 

these eyewitnesses testified that immedi- 

ately after the shooting, he looked into the 

car and saw no pistol present near Hill but 

a derringer lying near Saffles. A few min- 

utes later, the witness testified, another 

man approached from the driver's side and 

leaned into the car, and that immediately 

thereafter he again looked into the car and 

saw a pistol lying in the seat next to Hill. 

The prosecutor evidently considered this ev- 

idence that a confederate of Freeman's 

planted the .38 next to the body of Hill 
important, spending a significant portion of 

his opening and closing argument stressing 

that Hill was unarmed. Since the jury 

found only manslaughter aso Sallles but 
first degree murder as to Hill, it too must 

  

  
      

  

 



0 EL ge ; 

68 599 FEDERAL. REPORTER, 2d SERIES 

have considered this evidence significant 

because the facts surrounding the killing "of 

both men were the same except the jury 

knew Saffles was but had heard 

evidence and argument that Hill was not. 

Further, although these witnesses testified 

that Freeman fired first, the jury apparent- 

ly considered one of them at least partially 

unworthy of belief as it acquitted Freeman 

on the charge of aggravated assault on the 

witness even though the witness testified 

that Freeman had tried to shoot him. 

armed 

The appeal centers around the elusive 

DarTene and ner tanure to appear at Free- 

man's state trial. Immediately after the 

shooting, the police got an ambiguous state: 
ment from Darlene that could be read as 

consistent with both the state’s theory and 

Freeman's defense. It was subsequepbby 

recanted in part, and significantly, did “ot) 

include the testimony that Hill was armed. 

After being held briefly as a material wit- 

ness, Darlene seemed to disappear. In the 

course of attempting to prepare its case, the 

state sought to locate Darlene and even had 

a material witness arrest warrant for her. 

Agents of the district attorney could not 

find her at the address furnished. Sgt. 

Richard Fitzgerald, a city homicide detec- 

tive “Who investigated the shooting, was re- 

quested to help locate Darlene but Consisl- 

ently maintained that he didnotlcneweof 

her where: bouts. At the trial, he testified 

ander oath that Bic did not "Know exactly” 

where she had been qurmg the months pre- 

ceding the trial and that although the pros- 

ecutor had asked him for an address for 

Darlene, he had not furnished any such 

address. In fact, Fitzgerald had not only 

located Darlene but he had become her 

trusted confident. He had spoken with her 

on a monthly basis from the time of the 

shooting until the trial and had been to her 

apartment three weeks prior to trial? For 

apparently personal reasons, Fitzgerald had 

Fitzgerald's conduct in 3. Finding that Sgt. 

/ concealing Darlene’s whereabouts amounted to 

state suppression of favorable evidence in vio- 

lation of the 14th Amendment, we do not reach 

the question whether his testimony that he did 

t “know exactly where she ha[d] been’ dur- 

ing the month preceding the trial was techni- 

helped conceal Darlene in an attempt to 

shield the witness from some apprehended 

danger involving her violence prone hus- 

band or some other spurious or illogical 

reason, allegedly involving politically war- 

ring factions within the Atlanta Police De- 

partment. This close relationship developed 

into an O'Henry ending as Darlene married 

Sgt. Fitzgerald one year after the trial. 

[1] The issues thus presented in this ap- 

peal are whether the actions of detective 

Fitzgerald in knowingly concealing Darlene 

amounted to the state suppressing evidence 

favorable to the accused, thereby depriving 

him of due process in violation of the 14th 

Amendment, And Whether Freeman waived 

his right to object to Darlene’s failure to 

appear by not attempting to subpoena her 

or moving for a continuance or mistrial 

when she did not appear. The state habeas 

court denied the writ, finding no suppres- 
sion by the state of favorable evidence and 

in any event, that Freeman waived any 

objection by failing to look for Darlene. 

The district court simply dismissed the fed- 

eral petition based on the magistrate’s re- 

port. 

The state attempts to justify the district 

court's dismissal of the petition on three 

grounds. First, it argues that by failing to 

subpoena Darlene, by failing to make a 

conscientious effort to find her, and by fail- 

ing to seek any continuance or mistrial 

when she did not appear at trial—all of 

which were the result of cdlculated trial 

tactical decisions —Freeman waived any 

entitlement to federal habeas relief under 

Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 

2497, 53 L.Ed.2d 594 (1977). Even absent a 

waiver, the state contends that a dismissal 

of the petition was proper because the evi- 

dence which Freeman alleges was “hidden” 

by Lhe state was neither lavorable nor ma- 

terial Une URed States v. Agurs, 427 

cally perjury, independently requiring reversal. 

See, e. g. United States v. Carter, 566 F.2d 1265 

(5th Cir. 1978). — - 

4. By offering no evidence, applicant was grant- 

ed the closing argument during the guilt phase 

of the trial.  



  

ttempt to 

prehended 

yrone hus- 

r illogical 

cally war- 

Police De- 

» developed 

ne married 

the trial. 

in this ap- 

[ detective 

ng Darlene 

1g evidence 
y depriving 

of the 14th 

nan waived 

5 failure to 

bpoena her 

or mistrial 

‘tate habeas 

no suppres- 

vidence and 

waived any 

‘or Darlene. 

sed the fed- 

strates re- 

the district 

on on three 

by failing to 

to make a 

and by fail- 

or mistrial 

trial—all of 

culated trial 

waived any 

ju 
Conceal Cy 

, 

relief under 

72, 97 S.C 

oven absent a 

at a dismissal 

cause the evi- 

was “hidden” 

rable nor ma- 

v. Agurs, 427 

juiring reversal. 

r, 566 F.2d 1265 

(cant was grant- 

+ the guilt phase 

FREEMAN v. STATE OF GA. 
599 F.2d 65 (1979) Cite 

U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). 

Finally, the state urges that the personally 

motivated actions of Sgt Iitzoerald cannot 

be imputed to the state, so there was no 

suppression” by tne state and thus no Bra- 

dy violation, even if the testimony would 

have been favorable and the objection was 

not waived. Brady v. Maryland, 373 U.S. 

83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). 

We reject these contentions and find 

Freeman's allegations sufficient to rebut 

the presumptive correctness of the state 

court’s findings. We are not bound by th 

decision of a state court on federal constitu- 

tional questions in habeas proceedings. 28 

U.S.C. § 2254(d). Our study of the record 

convinces us that Freeman has established a 

due process violation and that the contrary 

decision of the Georgia court cannot stand. 

ar 7] If the state deliberately conceals an 

eyewitness to a crime, due process has been 

violated and habeas must be granted if, in 

the context of the entire trial, the missing 

witness’ testimony was such as might have 

created a reasonable doubt which would not 

otherwise have existed. See United States 

v. Agurs, 427 U.S. 97, 112 n. 21, 96 S.Ct. 

2392, 49 L.Ed.2d 342 (1976); Lockett v. 

Blackburn, 571 F.2d 309, 314 (5th Cir. 1978), 

cert. denied 439 U.S. 873, 99 S.Ct. 207, 58 

L.Ed.2d 186 (1979). There is no dispute, as 

the state habeas court specifically found, 

that Sgt. Fitzgerald deliberately concealed 

Darlene, a key eyewitness to the double- 

Kings However, because the court found 
Fitzgerald's motivation to be personal, not 

in anyway an official attempt to prejudice 

8. The state habeas court found: 

Ti ‘evidence at the resent habeas corpus 

proceedings revealed that contrary to the 

comments made by Sgt. Fitzgerald, he was 

aware of where this particular witness lived 

and as a matter of fact during the interval 

between the time of indictment and the time 

of the trial had been to her place of residence 

on at least one occasion and had communi- 

cated with her on several occasions. He was |, 

aware of the precise location of the apart- 

ment and the name she was using. (Appart 

ently during this time interval she ha 

changed her name and was going under som, 

other name.) 

The evidence in this case is clear that not- 

withstanding the repeated efforts of the Dis- 

/ attributable to the state regardless of his 

      

   

    

     

69 

the case against the defendant, and, in any 

event, lacking any possible material preju- 

dicial effect on the defendant, the court 

was unwilling to set aside what it con- 
sidered to have been a fair trial and a just 

result. Additionally, the court found that 
the defendant’s failure to subpoena or oth- 
erwise attempt to secure the attendance of | i 

Darlene constituted a- “Waiver of a Ss 

tion due to her failure to appear. We fing : 

however, that Sgt. Fitzgerald's conduct, is 

motivation, that his admittedly willful and 
intentional efforts to conceal this witness 

prejudiced the defense, and that under the CC 
rcumstances of this case, there was ne 

  

[3] First, we cannot accep* the state's 

reasoning that because Sgt. Fitzgerald's ac- 

tions were personally motivated and the 
other state officers’ conduct was proper, 

Fitzgerald's actions cannot be imputed to 

the state. [We feel that when an investEETT™ 
ing police officer willfully and intentionally \ 
conceals material information, regardless of 
his motivation and the otherwise proper /} 

conduct of the state attorney, the police- 
man’s conduct must be imputed to the state{ 
as part of the prosecution team. Smith v. 
Florida, 410 F.2d 1349, 1351 (5th Cir. 1969). | 
Smith relied on Barbee v. Warden, 331 F.2d | 
842 (4th Cir. 1964), where the Fourth Cir- i 

cuit Court of Appeals stated: } 

The police are also part of the prosecu- 
tion, and the taint on the trial is no less if_ -— : 
they, rather than the State’s Attorney, go 
were > guilty of the nondisclosure. 

——— 

trict Attorney to elicit the whereabouts of 

this witness from Sgt. Fitzgerald and not- 

withstanding the efforts of the District Attor- 

ney’s Office to locate this witness, Sgt. Fitz- 

gerald willfully and intentionally withheld 

his informatio, TT — 

ction and conduct oy Sgt. Fitzgeralc 

in a i Case war Temes PEPYERENTIDle- 
and gross act of misconguer by an Thvestigat- 

ing police officer that It nas ever been the 
misfortune of the undersigned to be volved 

in. Sgt. Fitzgerald's conduct was Calculated 

and intentional and without any justification | 

or excuse, A / 

asis added) 

E
e
 
—
.
—
.
 

  

   



) (INF 

NA 7 

2d 
- 

70 

The duty to disclosure is that of the 

state, which ordinarily acts through the 

prosecuting attorney; but if he too is the 

victim of police suppression of the materi- 

al information, the state’s failure is not 

on that account excused. 

See Schneider v. Estelle, 552 F.2d 593 (5th 

Cir. 1971); Jackson v. Wainwright, 390 F.2d 

288, 296 (5th Cir. 1968); Curran v. State of 

Del., 259 F.2d 707, 713 (3rd Cir. 1958) (opin- 

ion below 154 F.Supp. 27); cf. Fitzgerald v. 

Estelle, 505 F.2d 1334, 1336 (5th Cir. 1975) 

(en banc). 

Even if Sgt. Fitzgerald concealed the 

whereabouts of Darlene and his actions are 

attributable to the state, the rule of Brady 

v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 

L.Ed.2d 215 (1963), is violated only if favor- 

able evidence is suppressed by the state. 

The state habeas court and the magistrate 

found that Darlene’s testimony would not 

have been favorable to Freeman. Both rea- 

soned that Freeman had available to him in 

substance what the testimony of Darlene 

would have been had she testified, in the 

form of her written statement taken by the 

police shortly after the shootings occurred. 

While we agree that in some respects Dar- 

lene’s subsequent habeas testimony was not 

enlightening or favorable, both the district 

court and the magistrate overlooked the 

significance of her habeas testimony that 

ill came to the meeting armed. This evi- 

lence was not included in Darlene’s original 

ment to the police and therefore was 

not available in any form to Freeman at the 

PN Darlene would have testified that on the 

night of the shootings, Hill had in his pos- 

session the .38 revolver found beside his 

body, had drawn the gun while waiting for 

Freeman to arrive, and had placed it on the 

seat beside him. 

Z 

She also would have testi- 

fied that Freeman and a single unknown 

companion were in the parking lot in a 

single car—rather than several cars with an 

army of assassins—and that Freeman ap- 

proached the car alone, on foot, with no 

6. The state habeas court purported to make a 

fact finding that no prejudice to Freeman oc- 

curred. The question of prejudice is a question 

599 FEDERAL REPORTER, 2d SERIES 

weapon in hand, and engaged in friendly 

conversation prior to the sudden eruption of 

gun fire. This testimony would have refut- 

ed a major prosecution argument that Hill 

was unarmed and would have given color to 

Freeman's self-defense claim. This evi- 

dence was obviously favorable to Freeman 

and it was clearly erroneous to hold other- 

wise. 

Nevertheless, even if the state suppressed 
favorably eviden®e, Freeman 1s not entitled 

To habeas reliel unless he was prejudiced.’ 
The degree of prejudice a defendant must 

prove when the state suppresses favorable 

evidence varies according to whether the 

defendant™ specifically sought the sup- 

pressed evidence before trial. United 
States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 

49 L.Ed.2d 342 (1976). Here, Freeman did 

not make any effort to locate Darlene prior 

to trial so unless the failure to search could 

be considered to be the state's fault, Free- 

man must prove that Darlene’s testimony 

was such as might have created a reasona- 

ble doubt which did not otherwise exist. 

We feel it did, 
Many key facts in this case were in dis- 

pute. The jury evidently disbelieved a sub- 

stantial portion of the prosecution’s evi- 

dence since it acquitted Freeman on the 

aggravated assault charge and convicted 

him only of manslaughter with respect to 

Saffles even though he was indicted for 

first degree murder as to both Hill and 

Saffles. As stated earlier, the facts sur- 

rounding the killing of both were the same 

except that the jury knew Saffles was arm- 

ed but had heard evidence and argument 

tending to show Hill was not. Therefore, it 

appears that the jury considered the evi- 

dence that Hill was unarmed and that the 

discharged .38 was planted near his body by 

Freeman's confederate very important and, 

in this context, it scems quite possible that 

if the jury had heard Darlene’s testimony 

that Hill was in fact armed, with the gun 

beside him, they might have been influ- 

enced to acquit Freeman on all charges. 

of law, therefore, the state court finding on this 

point is not binding on this court.  



  

in friendly 

1 eruption of 

| have refut- 

nt that Hill 

ven color to 

This evi- 
to Freeman 

hold other- 

e suppressed 

not entitled 

prejudiced.® 
ndant must 

os favorable 

whether the 

the sup- 

al. United 

$ S.Ct. 2392, 

“reeman did 

)arlene prior 

search could 

fault, Free- 

's testimony 

d a reasona- 

rwise exist. 

were in dis- 

ileved a sub- 

cution’s evi- 

man on the 

ad convicted 

th respect to 

indicted for 
th Hill and 

ie facts sur- 

ere the same 

‘les was arm- 

id argument 
Therefore, it 

sred the evi- 

and that the 

r his body by 

portant and, 
possible that 

¢'s testimony 

with the gun 

+ been influ- 

. all charges. 

finding on this 
rt. 

    

FREEMAN v. STATE OF GA. 71 
Cite as 599 F.2d 85 (1979) 

Finally, we must consider the question of 

waiver.__The state habeas court concluded 
that Freeman's failure to subpoena or at- 

tempt to secure the attendance of DAFiThe 

prior to the commencement of the trial, his 

failure to move for any continuance during 

the trial in order to secure her presence, 

and his failure to make use of her state- 

ment to the police constituted a waiver of 

any objection to her failure to appear. Due 
to Freeman's failure to request a continu- 
ance to subpoena Darlene or request a mis- 

trial because of her unavailability—either 

of which remedies could have allowed the 

matter to be decided on independent state 

grounds—the district court, in adopting the 

magistrate’s report, found a waiver of the 

claim which precluded federal habeas relief, 
citing Wainwright v. Sykes, 433 U.S. 72, 97 
S.Ct. 2497, 53 L.Ed.2d 594 (1977); Francis v. 
Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 

L.Ed.2d 149 (1976); Jiminez v. Estelle, 557 

F.2d 506 (5th Cir. 1971); Loud v. Estelle, 

556 F.2d 1326 (5th Cir. 1977). The state 

argues that by failing to subpoena Darlene 

and relying instead upon the state to call 

her, Freeman waived any right to a contin- 

uance or to a mistrial; thus, his knowing 
Tailire to subpoena” her operated “as a 
waiver of a contemporaneous objection pre- 
cluding federal habeas review” under 
Sykes. We disagree. 

In Sykes, the Supreme Court held that a 
defendant who fails to comply with estab- 
lished state procedures may thereby waive 
his right to complain of a constitutional 
violation. However, this is not a typical 
waiver case. The state court does not cite 
any specific rule ol State procedure which 
Freeman violated; it simply concluded that 
in the totality of the circumstances, Free- 
man should have tried harder to locate Dar- 
lene. It is not even clear that the state 
court relied on state Taw To reach this con- 
clusion, since it cites neither state nor fed- 
eral authority to support its position. Fur- 
ther, even if the state court applied a rule 
of state procedure to find waiver, we are 
not convinced that this is the type ofҤiate 
procedural rule that the Supreme Court re- 
quires federal courts to defer to. 

     

   

   

            

   
   

    

   

   

    
   

    

     

    

   

    
    
      

   

   
   

   

    
   
   

   

    

   

   
     

   

   
    

     
    

    

      

  

The state argues that Freeman failed to 

comply with Georgia's contemporaneous ob- 
Jection rule by failing to move for a mistrial 

or continuance to try to locate Darlene, and 

that this inaction was the result of an intel- 

ligent choice among trial tactics, thus a 
deliberate waiver. 

We cannot fit the facts of this case so 

neatly into a waiver pattern. Although the 

decision not to introduce Darlene’s police 

statement may have been a calculated trial 

decision, there is no evidence of “sandbag- 

ging” by Freeman's counsel. Sykes 433 

USat™89, 97 S.Ct. 2497. Based on Dar- 

lene’s police statement—which did not in- 

clude the exculpatory evidence—defense 

counsel justifiably felt that her testimony 

would not have been valuable as a defense~"¢ 
witness. His intention was to cross-exam- 1)'% 

ine her after she was called as a state's 

witness. When she did not appear at trial, baw Ji 
defense counsel said he was shocked be- aonb! 

et = 

  

cause he felt she was the key, if not the 

only prosecution witness; and began efforts 

to locate the witness. However, it was not 

until Darlene revealed her whereabouts : 
through a newspaper reporter that defense i 

counsel was able to depose her and later 

discover the exculpatory evidence. There is 

absolutely no indication that Freeman's 

counsel by his trial tactics, intended to take 

his chance on a verdict of not guilty in the 

state court knowing he had an ace in the 

pocket with a federal constitutional claim to 

employ if the initial gamble did not pay off. 

From the record before us, it appears that 

the state trial would have been the “main 

event” rather than a “tryout on the road” 

for what counsel intended would later be 

the determinative federal habeas hearing 

except that the star witness was concealed 
by the state. 

                

[4] Even if Freeman failed to comply 
with state procedure within the meaning of 

Francis and Sykes, he has not waived his 

federal constitutional complaint if he can 

show cause for the failure to comply and 

prejudice as a result. The “prejudice” is 

self evident. Darlene’s incomplete police 

statement and Fitzgerald's concealing her 

whereabouts was the “cause” for his failure 

  

  

  

  

  

  

                    

  

    

  



72 

to subpoena and/or locate her. While, as 

the state contends, it was a matter of trial 

tactics that led Freeman not to subpoena 

Darlene or introduce her police statement 

because he thought it unfavorable, the state 

ignores the fact that this strategy was 

formed in reliance on Darlene’s police state- 

ment, which did not contain the exculpatory 

evidence. When—a police statement mis- 

leads the defénsc into believing that evi- 

dence—will not be favorable, the state can= 

ot thereafter argue that it v was a waiver 

o request iL. 1A defendant cannot have 

aived more than what he knew existed) 

‘Freeman was not required to subpoena a 

witness whose report to the police contained 

i g is case. Moreover, 

we Cannot overlook the fact that even if he 
had tried to locate Darlene, it would have 

beenAfutile because of her concealment. If 

the state, with all its resources, could not 

: er, it 1s difficult to imagine how th 

defense couns Id have. Therefol 

find that Freeman's constifufional conten- 

tion was not waived. 

  

  

  

  

For these reasons, we reverse and remand 

the case to the district court to issue the 

writ unless the state elects to retry Free- 

man promptly. 

REVERSED AND REMANDED. 

O & KEY NUMBERSYSTEM 

UNITED STATES of America, 

Plaintiff-Appellee, 

Vv. 

David BUSH, Defendant-Appellant. 

No. 78-5296. 

United States Court of Appeals, 

Fifth Circuit. 

July 18, 1979. 

Rehearing and Rehearing En Bane 

Denied Sept. 19, 1979. 

Defendant was convicted before the 

United States District Court for the South- 

599 FEDERAL REPORTER, 2d SERIES 

ern District of Florida, Charles B. Fulton, 

J., of knowingly and willfully making false 

statements to insured bank for purpose of 

influencing bank to advance funds, and he 

appealed. The Court of Appeals, Thorn- 

berry, Circuit Judge, held that: (1) record 

failed to establish fatal variance between 

proof and indictment charging that book- 

keeper for home builder had submitted let- 

ter requesting payment for construction 

that had not been done in violation of con- 

struction loan disbursements schedule, not- 

withstanding that indictment had not al- 

leged “a written disbursements schedule” 

and Government proved that checklists rep- 

\resented the disbursement agreement and, 

even if there was technical variance, preju- 

ice was absent, inasmuch as Government 

had provided checklists to defense before 

trial; (2) material false statements, if any, 

violated statute, even if false statements 

had been given with knowledge, consent or 

duplicity of bank officer, and (3) refusal to 

give requested charge on ignorance of the 

law did not require reversal, inasmuch as 

court had correctly charged jury as to spe- 

cific intent and willfulness, court had given 

complete instruction on effective advice of 

counsel, the false statements of which de- 

fendant was convicted had been made be- 

fore defendant had consulted an attorney 

and defendant had been able fully to argue 

his lack of willfulness to jury. 

Affirmed. 

1. Fraud &=69(2) 

Indictment charging that bookkeeper 

for home builder had submitted letter to 

bank requesting payment for construction 

that had not been done in violation of con- 

struction loan disbursements schedule was 

sufficient to charge federal offense of 

knowingly and willfully making false state- 

ments to insured bank for purpose of influ- 

eneing bank to advance funds. 18 U.S.C.A. 

§ 1014. 

2. Criminal Law &=1167(1) 

Fraud ¢=69(2) 

Record failed to establish fatal vari- 

ance between proof and indictment charg-  



  

53 LW 5084 The United States LAW WEEK 6-25-85 
  

No. 84-48 

  

UNITED STATES, PETITIONER wu 
HUGHES ANDERSON BAGLEY 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE NINTH CIRCUIT 

Syllabus 

No. 84-48. Argued March 20, 1985—Decided July 2, 1985 

Respondent was indicted on charges of violating federal narcotics and fire- 
arms statutes. Before trial, he filed a discovery motion requesting, in- 

ter alia, “any deals, promises or inducements made to [Government] wit- 

nesses in exchange for their testimony.” The Government's response 

did not disclose that any “deals, promises or inducements” had been 

made to its two principal witnesses, who had assisted the Bureau of Al- 

cohol, Tobacco and Firearms (ATF) in conducting an undercover investi- 

gation of respondent. But the Government did produce signed affida- 

vits by these witnesses recounting their undercover dealing with 

respondent and concluding with the statement that the affidavits were 

made without any threats or rewards or promises of reward. Respond- 

ent waived his right to a jury trial and was tried before the District 

Court. The two principal Government witnesses testified about both 
the firearms and narcotics charges, and the court found respondent 
guilty on the narcotics charges but not guilty on the firearms charges. 
Subsequently, in response to requests made pursuant to the Freedom of 

Information Act and the Privacy Act, respondent received copies of ATF 

contracts signed by the principal Government witnesses during the un- 

dercover investigation and stating that the Government would pay 

money to the witnesses commensurate with the information furnished. 

Respondent then moved to vacate his sentence, alleging that the Gov- 

ernment’s failure in response to the discovery motion to disclose these 

contracts, which he could have used to impeach the witnesses, violated 
his right to due process under Brady v. Maryland, 373 U. S. 83, which 

held that the prosecution’s suppression of evidence favorable to an ac- 

cused upon request violates due process where the evidence is material 

either to guilt or punishment. The District Court denied the motion, 

finding beyond a reasonable doubt that had the existence of the ATF 
contracts been disclosed to it during trial, the disclosure would not have 
affected the outcome, because the principal Government witnesses’ testi- 

mony was primarily devoted to the firearms charges on which respond- 

ent was acquitted, and was exculpatory on the narcotics charges. The 

Court of Appeals reversed, holding that the Government's failure to dis- 
close the requested impeachment evidence that respondent could have 

used to conduct an effective cross-examination of the Government's prin- 

cipal witnesses required automatic reversal. The Court of Appeals also 

stated that it “disagree{d]” with the District Court's conclusion that the 

nondisclosure was harmless beyond a reasonable doubt, noting that the 

witnesses’ testimony was in fact inculpatory on the narcotics charges: 

Held: The judgment is reversed, and the case is remanded. 

718 F. 2d 1462, reversed and remanded. 

JUSTICE BLACKMUN delivered the opinion of the Court with respect to 

Parts I and II, concluding that the Court of Appeals erred in holding that 

the prosecutor’s failure to disclose evidence that could have been used 
effectively to impeach important Government witnesses requires auto- 

matic reversal. Such nondisclosure constitutes constitutional error and 

requires reversal of the conviction only if the evidence is material in the 

sense that its suppression might have affected the outcome of the trial. 

JUSTICE BLACKMUN, joined by JUSTICE O’CONNOR, delivered an opin- 

ion with respect to Part III, concluding that the nondisclosed evidence at 

issue is material only if there is a robapility that, had the 

g¥idence been disclosed to the defense, the result din 

A “reasonable probability” is a probability 

ermine confidence in the outcome. standard of ma- 

teriality is sufficiently flexible to cover cases of prosecutorial failure to 

disclose evidence favorable to the defense regardless of whether the de- 
fense makes no request, a general request, or a specific request. Al- 

though the prosecutor’s failure to respond fully to a specific request may 

impair the adversary process by having the effect of representing to the 

defense that certain evidence does not exist, this possibility of impair- 

ment does not necessitate a different standard of materiality. Under 

  

       
     

    

         

the standard stated above, the reviewing court may consider directly 
any adverse effect that the prosecutor’s failure to respond might have 

had on the preparation of presentation of the defendant's case. 

JUSTICE WHITE, joined by TRE CHIEF JUSTICE and JUSTICE REEN- 

QUIST, being of the view that there is no reason to elaborate on the rele- 

vance of the specificity of the defense’s request for disclosure, either 

generally or with respect to this case, concluded that reversal was man- 
dated simply because the Court of Appeals failed to apply the “reason- 
able probability” standard of materiality to the nondisclosed evidence in / 
question. / 

BLACKMUN, J., announced the judgment of the Court and delivered the 

opinion of the Court with respect to Parts I and II, in which BURGER, 

C. J., and WHITE, REHNQUIST, and O'CONNOR, JJ., joined, and an opinion 

with respect to Part III, in which O'CONNOR, J., joined. WHITE, J., filed 

an opinion concurring in part and concurring in the judgment, in which 

‘BURGER, C. J., and REBENQUIST, J., joined. MARSHALL, J., filed a dis- 

senting opinion, in which BRENNAN, J., joined. STEVENS, J., filed a dis- 

senting opinion. POWELL, J., took no part in the decision of the case. 

JUSTICE BLACKMUN announced the judgment of the Court 
and delivered an opinion of the Court except as to Part III. 

In Brady v. Maryland, 373 U. S. 83, 87 (1963), this Court 
held that “the suppression by the prosecution of evidence 
favorable to an accused upon request violates due process 
where the evidence is material either to guilt or punish- 
ment.” The issue in the present case concerns the standard 
of materiality to be applied in determining whether a convic- 
{fon SHOUT BE YEVErTEq DeCTiRe The prosecutor failed to di ral 
close requested evidence that co ave been used to Im- 
{—— . 
peach Government witnesses. 

I 

In October 1977, respondent Hughes Anderson Bagley was 
indicted in the Western District of Washington on 15 charges 
of violating federal narcotics and firearms statutes. On No- 
vember 18, 24 days before trial, respondent filed a discovery 
motion. The sixth paragraph of that motion requested: 

“The names and addresses of witnesses that the gov- 
ernment intends to call at trial. Also the prior criminal 
records of witnesses, and any deals, promises or induce- 

ments made to witnesses Tor Ther ett 
mony.” App. 13.! 

The Government's two principal witnesses at the trial were 
James ¥. O'Connor and Donald E. Mitchell. O’Connor and 
Mitchell Were state law-enforcement officers employed by 
the Milwaukee RZIF0aa as private security guards. Be- 
tween April and June 1977, they assisted the federal Bureau 
of Alcohol, Tobacco and Firearms (ATF) in conducting an un- 

dercover invest igationtyf respondent. 
/ se to the discovery motion did 

not disclose that any “deals, promises or inducements” had 
been made to O'Connor or i In apparent reply to a 
request in the motion’s ninth paragraph for “[cJopies of all’ 
Jencks Act material,”? the Government produced a series of 
affidavits that O'Connor and Mitchell had stémned between 
April 12 and May 4, 1977, while the undercover investigation 
was in progress. These affidavits recounted in detail the un- 
dercover dealings hat O'Connor and Mitchell were having at 
the time with respondent. Each affidayj d with the 
statement, “I made this statement freely and voluntarily 
without any threafs S, OT promises of rewar 

ing been made to me in return for it.”’ 

  

  

  

  

  

  

1. nav- 

'In addition, §10(b) of the motion requested “[plromises or representa- 

tions made to any persons the government intends to call as witnesses at 
trial, including but not limited to promises of no prosecution, immunity, 

lesser sentence, etc.,” and ¥11 requested “{a]ll information which would 

establish the reliability of the Milwaukee Railroad Employees in this case, 

whose testimony formed the basis for the search warrant.” App. 18-18. 

*The Jencks Act, 18 U. S. C. §3500, requires the prosecutor to dis- 
close, after direct examination of a Government witness and on the defend- 

ant’s motion, any statement of the witness in the Government's possession 

that relates to the subject matter of the witness’ testimony. 
! Excerpt of Record (filed in the Court of Appeals) 65, 66,:70, 72, 74, 77, 

78, 82, 4. 

 



  

E
I
F
S
   

(ate 

charg 

6-25-85 The United States LAW WEEK 53 LW 5085 
    

Respondent waived his right to a jury trial and was tried 
before the court in December 1977. At the trial, O'Connor 

and Mitchell testified about both the firearms and the narcot- 
ics charges. On December 23, the court found respondent 
guilty on the narcotics charges, but not guilty on the firearms 
charges. 

In mid-1980, respondent filed requests for information pur- 
suant to the F a of Information Act and to the Privacy 

ACT oT TIT, 5 US. C5550 and 52a. He received j 
response copies of ATF form contracts that O'Connor and 
CET Ha pet on Way 3. TO Eh form ver 
“Comtract Tor Pifchase of Information and Payment of Lump 
Sum eior. e printed portion of the form stated te! 

the vendor “will provide” information to ATF and that 
ormation by the‘Regional Director, mow 

of Alcohol, Tobacco and Firearms, or his representative, and 
upon the accomplishment of the objective sought to be ob- 
tained by the use of such information to the satisfaction of 
said Regional Director, the United States will id 
vendor a sum commensurate With services and information 
rendered.” App. 22 and 23. Each form contained the fol- 
lowing typewritten description of services: 

“That he will provide information regarding T-I and 
other violations committed by Hughes A. Bagley, Jr; 
that he will purchase evidence for ATF; that he will cut 
[sic] in an undercover capacity for ATF; that he will as- 
sist ATF in gathering of evidence and testify against the 
violator in federal court.” Ibid. 

The figure “$300.00” was handwritten in each form on a line 
entitled “Sum to Be Paid to Vendor.” 

Because these contracts had n to respond- 
ent In response to his pretrial discovery motion,‘ respondent 
moved under 28 U. S. C. §2255 to vacate his sentence. He 

that the Government’s failure to disclose the con- 
tracts, which he could have used to impeach O'Connor and 
Mitchell, violated his right to due process under Brady v. 
Maryland, supra. 

The motion came before the same District Judge who had 
presided at respondent's bench trial. An evidentiary ear- 
ing WAS Held before a Magistrate The=Magistrate fi 
that the printed form contracts werd blank Jvhen 0’Connor 
ahd Mitchell signed them and were not sigried by an ‘ 

FEpresentative until after the trial. He also found that on 
January 4, 1978, following the trial and decision in respond- 
ent’s case, ATF payments of $300 to both O’Connor and 

Mitchell pursuant to the contracts ATTRoUgh the ATF cas 
agent who dealt with O'Connor and Mitchell testified seas 
these payments were compensation for expenseg, the Magis- 
Te Found chat ThE TrarcteT oT TI ot borne out by 
the record. There was no documentation for expenses in 

   

    

  

these amounts; Mitchell testified that his payment was _got 
for expenses, and the orms authorizing the payments 

ated them as rewards. 
The District Court adopted each of the Magistrate's find- 

ings except for the last one to the effect that “[njeither 

O'Connor nor Mitchell expected to receive the payment of 

‘The Assistant United States Attorney who prosecuted respondent 

stated in stipulated testimony that he had not known that the contracts 

existed and that he would have furnished them to respondent had he 
known of them. See App. to Pet. for Cert. 13a. 

*The Magistrate found, too, that ATF paid O'Connor and Mitchell, re- 

spectively, $90 and $80 in April and May 1977 before trial, but concluded 
that these payments were intended to reimburse O'Connor and Mitchell for 

expenses, and would not have provided a basis for impeaching O’Connor’s 

and Mitchell's trial testimony. The District Court adopted this finding 

and conclusion. App. to Pet. for Cert. 7a, 13a. 

$300 or any payment from the United States for their testi- 
mony.” App. to Pet. for Cert. 7a, 12a, 14a. Instead, the 

put fond that was ranhalien Lal Lomer an leh 
ell expected to receive compensation, i dition to their 

expenses, ok pe a A heir assistance, though(Derhapd.not for their 
testimony.” at a. istrict Court also expressly 
rejected, ibid., the Magistrate's conclusion, id., at 14a, that: 

“Because neither witness was promised or expected 
payment for his testimony; the United States did not 
withhold, during pretrial discovery, information as to 
any ‘deals, promises or inducements’ to these witnesses. 

Nor did the United States suppress evidence favorable 
to the defendant, in violation of Brady v. Maryland, 373 
U. S. 83 (1963).” 

The 
ever, that had the 
to it during trial, the disclosure would have had po effect 

upon its finding that the Government had proved beyond a 
reasonable doubt that respondent was guilty of the offenses 
for which he had been convicted. Id., at 8a. The District 
Court reasoned: Almost all of the testimony of both witne 

eyond a reasonable doubt, how- 

      

testimony of O'Connor reve Mitchel concerning the narcotics 
charges was relatively very brief. On cross-examination, re- 
spondent’s counsel Th not seek to discredit their testimony 
as to the facts of distribution but rather sought to show that 
the controlled substances in question came from supplies that 
had been prescribed for respondent’s personal use. The an- 
swers of O'Connor and Mitchell to this line of cross-examina- 
tion tended to be favorable to respondent. Thus, the 
claimed impeachment evidence would not have been helpful 
to respondent and would not have affected the outcome of the 
trial. Accordingly, the District Court denied respondent’s 
motion to vacate his sentence. 

The United States Court of Appeals for the Ninth Circyit 
reversed. Bagley v. Lumpkin, 719 F. 2d 1462 (1983). The 
Court of Appeals began by noting that, according to 
precedent in the Circuit, prosecutorial failure to respond to a 
specific Brady request is $ property analyzed as error, and a 

  

     To OK who had presided ¢ over the pench trial con- 
luded beyond a reasonable doubt that disclosure of the ATF 

eement would not have affected the outcome. The Court 
f Appeals, however, stated that it “disagree{d]” with this 
onclusion. Id., at 1464. In particular, it disagreed with 

the Government’s—and the District Court’s—premise that 
the testimony of O'Connor and Mitchell was exculpatory on 
the narcotics charges, and that respondent therefore would 
ot have sought to impeagh “his own witness.” Id., at 14 

    

    

      

   
  

The Court of Appeals apparently based its reversal, how- 
ever, on the theory that the Government's failure to disclose 
the requested Brady information that respondent could have 
used to conduct an effective cross-examination impaired re- 
spondent’s right to confront adverse witnesses. The court 
noted: “In Davis v. Alaska, . . . the Supreme Court held that 
the denial of the Tight of effective cross-examination’ was 
“‘constitutional error of the first magnitude’ ” requiring auto- 
matic reversal.” 719 F. 2d, at 1464 (quoting Dawis v. 
Alaska, 415 U. S. 308, 318 (1974)) (emphasis added by Court 
of Appeals). In the last sentence of its opinion, the Court of 
Appeals concluded: “we hold that the government’s failure to 
provide requested Brady information to Bagley so that he 
could effectively cross-examine two important government 

  
    



  

53 LW 5086 
  

The United States LAW WEEK 6-25-85 
  

witnesses requires an automatic reversal.” 719 F. 2d, at 
1464. 
We granted certiorari, —— U.S. —— (1984), and we 

now reverse. 
II 

The holding in Brady v. Maryland requires disclosure only 
of evidence that is both favorable to the accused and “mate- 
rial either to guilt or punishment.” 373 .U. S., at 87. See 
also Moore v. Illinois, 408 U. S. 786, 794-795 (1972). The 
Court explained in United States v. Agurs, 427 U. S. 97, 104 
(1976): “A fai i ing. indi that 
implicit in the requirement of materiality is a concern that 

e su ssed evidence might have affected the outcome o 
trial.” The evidence suppressed in Brady would have 

been admissible only on the issue of punishment and not on 
the issue of guilt, and therefore could have affected only Bra- 
dy’s sentence and not his conviction. Accordingly, the Court 
affirmed the lower court's restriction of Brady's new trial to 
the issue of punishment. 

The Brady rule is based on the requirement of due process. 
SE PETE TT Te Tioes the adversary STII ThE T. 
mary means by which truth is uncovered, but to ensure that a 

miscarriage of justice does not occur.® Thus, the prosecutor 
is not required to deliver his entire file to defense counsel,’ 
but only to disclose evidence favorable to the accused that, if 
suppressed, would deprive the defendant of a fair trial: 

“For unless the omission deprived the defendant of a fair 
trial, there was no constitutional violation requiring that 
the verdict be set aside; and absent a constitutional vi- 

olation, there was no breach of the prosecutor’s constitu- 
tional duty to disclose. . . . : 

“, .. But to reiterate a critical point, the prosecutor 
will not have violated his constitutional duty of disclo- 
sure unless his omission is of sufficient significance to re- 
sult in the denial of the defendant's right to a fair trial.” 
427 U. S., at 108. 

In Brady and Agurs, the prosecutor failed to disclose ex- 

culpatory evidence. In the present case, the prosecutor 
failed to disclose evidence that the defense might have used 
to impeach the Government's witnesses by showing bias or 
interest. Jmpeachment evidence, however as well as excul- 

—patory evidence, Tals within the Brady rule See Giglio v. 
United States, 405 U. S. 150, 154 (1972). Such evidence is 
“evidence favorable to an accused,” Brady, 373 U. S., at 87, 

so that, if disclosed and used effectively, it may make the dif- 

ference between conviction and acquittal. Cf. Napue v. Illi- 
nots, 360 U. S. 264, 269 (1959) (“The jury’s estimate of the 

  

¢ By requiring the prosecutor to assist the defense in making its case, 

the Brady rule represents a limited departure from a pure adversary 

model. The Court has recognized, however, that the prosecutor’s role 

transcends that of an adversary: he “is the representative not of an ordi- 

nary party to a controversy, but of a sovereignty . . . whose interest. . . In 

a criminal prosecution is not that it shall win a case, but that.justice shall be 

done.” Berger v. United States, 235 U. S. 78, 88 (1935). See Brady v. 

Maryland, 373 U. S., at 87-88. 

"See United States v. Agurs, 427 U. S. 97, 106, 111 (1876); Moore v. 
Illinois, 408 U. S. 786, 795 (1972). See also California v. Trombetia, 

U.S. ——, —, n. 8 (1984) (slip op. 9, n. 8). An interpretation of Brady 
to create a broad, constitutionally required right of discovery “would 

entirely alter the character and balance of our present systems of criminal 

justice.” Giles v. Maryland, 386 U. S. 66, 117 (1967) (dissenting opinion). 
Furthermore, a rule that the prosecutor commits error by any failure to 

dislose evidence favorable to the accused, no matter how insignificant, 

would impose an impossible burden on the prosecutor and would under- 

mine the interest in the finality of judgments. 

  

truthfulness and reliability of a given witness may well be de- 
terminative of guilt or innocence, and it is upon such subtle 

factors as the possible interest of the witness in testifying 
falsely that a defendant’s life or liberty may depend”). 

The Court of Appeals treated impeachment evidence as 
constitutionally different from exculpatory evidence. c- 
cording to that court, failure to disclose impeacliment evi- 
dence is “even more egregious” than failure to disclose excul- 
patory evidence “because it threatens the defendant's right 

719 F. 2d, at 1464. Rely- 

  

to confront adverSe witnesses. 
ing on Davis v. Alaska, 415 U. S. 308 (1974), the Court of 

Appeals held that the Government's failure to disclose re- 
quested impeachment evidence that the defense could use to 
conduct an effective cross-examination of important prosecu- 
tion witnesses constitutues “ ‘constitutional error of the first 
magnitude’” requiring automatic reversal. 719 F. 2d, at 
1464 (quoting Davis v. Alaska, supra, at 318). 

This Court has rejected any such distinction between im- 
peachment evidence and exculpatory evidence. I 10 V 

mited Stated, supra, the Government failed to disclose 
impeachment evidence similar to the evidence at issue in the 
present case, that is, a promise made to the key government 
witness that he would not be prosecuted if he testified for the 
Government. This Court said: 

“When the Teliability of a given witness may well be 
determinative of guilt or innocence,’ nondisclosure of evi- 

dence affecting credibility falls within the general rule 
[of Brady]. We do not, however, automatically require 
a new trial whenever ‘a combing of the prosecutors’ files 
after the trial has disclosed evidence possibly useful to 
the defense but not likely to have changed the verdict 

’ A finding of materiality of the evidence is re- 
quired under Brady. . . . 
false testi ] 

  

   

  

    

  

U. S., at 154 (citations omitted). 

Thus, the Court of Appeals’ holding is inconsistent with our 
precedents. 

Moreover, the court’s reliance on Davis v. Alaska for its 

“automatic reversal” rule is misplaced. In Davis, the 
defense sought to cross-examine a crucial prosecution wit- 
ness concerning his probationary status as a juvenile delin- 
quent. The defense intended by this cross-examination to 
show that the witness might have made a faulty identification 
of the defendant in order to shift suspicion away from himself 
or because he feared that his probationary status would be 
jeopardized if he did not satisfactorily assist the police and 

prosecutor in obtaining a conviction. Pursuant to a state 
rule of procedure and a state statute making juvenile adjudi- 
cations inadmissible, the trial judge prohibited the defense 
from conducting the cross-examination. This Court re- 
versed the defendant’s conviction, ruling that the direct re- 

striction on the scope of cross-examination denied the defend- 
ant “the right of effective cross-examination which “ ‘would 
be constitutional error of the first magnitude and no amount 
of showing of want of prejudice would cure it.” Brookhart v. 
Jamis, 384 U. S. 1,3.” 415 U. S., at 318 (quoting Smith v. 
Illinois, 390 U. S. 129, 131 (1968). See also United States 
v. Cronic, 0-8 : (1984) (slip op. 11). 

The present case, in contrast, does not involve any direct 
restriction on the scope of cross-examination. The defense 
was free to cross-examine the witnesses on any relevant sub- 
ject, including possible bias or interest resulting from induce- 
ments made by the Government. The constitutional error, if 

      

any, in this case was the Government's failure to assist the 

 



  

arges 

6-25-85 The United States LAW WEEK 53 LW 5087 
  

defense by disclosing information that might have been help- 
ful in conducting the cross-examination. As discussed 
above, such suppression of evidence amounts to a constitu- 
tional violation only if it deprives the defendant of a fair trial. 
Consistent with “our overriding concern with the justice of 

the finding of guilt,” United States v. Agurs, 427 U. S., at 

112, a constitutional error occurs, and the conviction must be 

reversed, only if the evidence is material in the sense that its 
suppression undermines confidence in the outcome of the 
trial. 

III 

A 

It remains to determine the standard of materiality appli- 
cable to the nondisclosed evidence at issue in this case. Our 
starting point is the framework for evaluating the materiality 
of Brady evidence established in United States v. Agurs. 
The Court in Agurs distinguished three situations involving 
the discovery, after trial, of information favorable to the ac- 
cused that had been known to the prosecution but unknown 
to the defense. The first situation was the prosecutor’s 
knowing use of perjured testimony or, equivalently, the pros- 
ecutor’s knowing failure to disclose that testimony used to 
convict the defendant was false. The Court noted the well- 
established rule that “a conviction obtained by the knowing 
use of perjured testimony is fundamentally unfair, and must 
be set aside if there is any reasonable likelihood that the false 
testimony could have affected the judgment of the jury.” 
427 U. S., at 103 (footnote omitted).® Although this rule is 

stated in terms that treat the knowing use of perjured testi- 

mony as error subject to harmless-error review,’ it may as 

easily be stated as a materiality standard under which the 

*In fact, the Brady rule has its roots in a series of cases dealing with 

convictions based on the prosecution’s knowing use of perjured testimony. 
In Mooney v. Holohan, 294 U. S. 103 (1935), the Court established the rule 

that the knowing use by a state prosecutor of perjured testimeny to obtain 

a conviction and the deliberate suppression of evidence that would have im- 

peached and refuted the testimony constitutes a denial of due process. 

The Court reasoned that “a deliberate deception of court and jury by the 

presentation of testimony known to be perjured” is inconsistent with “the 

rudimentary demands of justice.” Id., at 112. The Court reaffirmed this 

principle in broader terms in Pyle v. Kansas, 317 U. S. 213 (1942), where 

it held that allegations that the prosecutor had deliberately suppressed evi- 

dence favorable to the accused and had knowingly used perjured testimony 

were sufficient to charge a due process violation. 

The Court again reaffirmed this principle in Napue v. Illinois, 360 U. S. 
264 (1959). In Napue, the principal witness for the prosecution falsely tes- 

tified that he had been promised no consideration for his testimony. The 

Court held that the knowing use of false testimony to obtain a conviction 
violates due process regardless of whether the prosecutor. solicited the 

false testimony or merely allowed it to go uncorrected when it appeared. 

The Court explained that the principle that a State may not knowingly use 

false testimony to obtain a conviction—even false testimony that goes only 

to the credibility of the witness—is “implicit in any concept of ordered lib- 

erty.” Id., at 263. Finally, the Court held that it was not bound by the 

state court’s determination that the false testimony “could not in any rea- 

sonable likelihood have affected the judgment of the jury.” Id., at 271. 

The Court conducted its own independent examination of the record and 

concluded that the false testimony “may have had an effect on the outcome 
of the trial.” Id., at 272. Accordingly, the Court reversed the judgment 
of conviction. 

*The rule that a conviction obtained by the knowing use of perjured tes- 

timony must be set aside if there is any reasonable likelihood that the false 

testimony could have affected the jury’s verdict derives from Napue v. [1li- 

nos, 360 U. S., at 271. See n. 8, supra. See also Gigiio v. United 
States, 405 U. S. 150, 154 (1972) (quoting Napue, supra, at 271). Napue 
antedated Chapman v. California, 386 U. S. 18 (1967), where the “harm- 

less beyond a reasonable doubt” standard was established. The Court in 

Chapman noted that there was little, if any, difference between a rule for- 

mulated, as in Napue, in terms of “ ‘whether there is a reasonable possibil- 

ity that the evidence complained of might have contributed to the convic- 

tion,”” and a rule “ ‘requiring the beneficiary of a constitutional error to 

prove beyond a reasonable doubt that the error complained of did not con- 

    

fact that testimony is perjured is considered material unless 
failure to disclose it would be harmless beyond a reasonable 
doubt. The Court in Agurs justified this standard of materi- 
ality on the ground that the knowing use of perjured testi- 
mony involves prosecutorial misconduct and, more impor- 
tantly, involves “a corruption of the truth-seeking function of 

the trial process.” Id., at 104. 
At the other extreme is the situation in Agurs itself, where 

the defendant does not make a Brady request and the pros- 
ecutor fails to disclose certain evidence favorable to the ac- 
cused. The Court rejected a harmless-error rule in that 
situation, because under that rule every nondisclosure is 
treated as error, thus imposing on the prosecutor a constitu- 
tional duty to deliver his entire file to defense counsel.” Id., 
at 111-112. At the same time, the Court rejected a standard 
that would require the defendant to demonstrate that the ev- 
idence if disclosed probably would have resulted in acquittal. 
Id., at 111. The Court reasoned: “If the standard applied to 

the usual motion for a new trial based on newly discovered 
evidence were the same when the evidence was in the State’s 
possession as when it was found in a neutral source, there 
would be no special significance to the prosecutor’s obligation 
to serve the cause of justice.” Ibid. The standard of ma- 
teriality applicable in the absence of a specific Brady request 
is therefore stricter than the harmless-error standard but 
more lenient to the defense than the newly discovered evi- 
dence standard. 

The third situation identified by the Court in Agurs is 
where the defense makes a specific request and the prosecu- 
tor fails to disclose responsive evidence.” The Court did not 
define the standard of materiality applicable in this situa- 
tion, but suggested that the standard might be more lenient 
to the defense than in the situation in which the defense 
makes no request or only a general request. Id., at 106. 
The Court also noted: “When the prosecutor receives a spe- 
cific and relevant request, the failure to make any response is 
seldom, if ever, excusable.” Ibid. 

The Court has relied on and reformulated the Agurs stand- 
ard for the materiality of undisclosed evidence in two subse- 
quent cases arising outside the Brady context. In neither 
case did the Court’s discussion of the Agurs standard distin- 
guish among the three situations described in Agurs. In 
United States v. Valenzuela-Bermal, 458 U. S. 858, 874 
(1982), the Court held that due process is violated when testi- 
mony is made unavailable to the defense by Government de- 

portation of witnesses “only if there is a reasonable likelihood 

  

  

tribute to the verdict obtained.’” 386 U. S., at 24 (quoting Fahy v. Con- 

necticut, 375 U. S. 85, 86-87 (1963)). It is therefore clear, as indeed peti- 

tioner concedes, see Brief for United States 20, and 36-38, that this Court’s 

precedents indicate that the standard of review appiicable to the knowing 

use of perjured testimony is equivalent to the Chapman harmless-error 
standard. e 

“This is true only if the nondisclosure is treated as error subject to 

harmless-error review, and not if the nondisclosure is treated as error only 

if the evidence is material under a not-“harmiess beyond a reasonable 
doubt” standard. 

"The Court in Agurs identified Brady as a case in which specific in- 

formation was requested by the defense. 427 U. S., at 106. The request 

in Brady was for the extrajudicial statements of Brady's accomplice. See 

373 U. S., at &4. 

2 The Court in Agurs noted: “A fair analysis of the holding in Brady indi- 
cates that implicit in the requirement of materiality is a concern that the 

suppressed evidence might have affected the outcome of the trial.” 427 

U. S., at 104. Since the Agurs Court identified Brady as a “specific re- 
quest” case, see n. 11, supra, this language might be taken as indicating 

the standard of materiality applicable in such a case. [tis clear, however, 

that the language merely explains the meaning of the term “materiality.” 

It does not establish a standard of materiality because it does not indicate 

what quantum of likelihood there must be that the undisclosed evidence 

would have affected the outcome.



  

53 LW 5088 The United States LAW WEEK 6-25-85 
_   

that the testimony could have affected the judgment of the 
trier of fact.” And in Strickland v. Washington, — U. S. 
—— (1984), the Court held that a new trial must be granted 
when evidence is not introduced because of the incompetence 
of counsel only if “there is a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceed- 
ing would have been different.” Id., at — (slip op. 24)." 
The Strickland Court defined a “reasonable probability” as “a 
probability sufficient to undermine confidence in the out- 
come.” Ibid. — 

Ww the Strickland formulation of the Agurs test for 
Br a 
“EEE TEES IT SPEC itic request” cases of prosecuto- 
rial failure to disclose evidence favorable to the accused: 
evidence is mater: ere 1s a reasonable probability 
that, had the evidence been disclosed to the defense, the re- 

    

  

   

   P 1s a probability sufficient to undermine 
confidence in the outcome. 

   
   

    

  

| 
  

mt-SUgTests that a materiality standard 
more favorable to the defendant reasonably might be adopted 
in specific request cases. “See Brief for United States 31. 
The Government notes that an incomplete response to a spe- 
cific request not only deprives the defense of certain evi- 

dence, but has the effect of representing to the defense that 
the evidence does not exist. In reliance on this misleading 
representation, the defense might abandon lines of independ- 
ent investigation, defenses, or trial strategies that it other- 
wise would have pursued. Ibid. 

We agree that the prosecutor’s failure to respond fully to a 

Brady request may impair the adversary process in this man- 
ner. And the more specincally the defense requests certain 
evidence, thus Si the ST of its value, 

the more reasonable it 1s for the defense to assume from the 

NORATSCIOSUTE that Lhe evidence does not exist, ang To make 
pretrial and CFTAYETISIONT On Lhe Dass of this assumption. 
This possibility of impairment does not necessitate a different 
rr of materiality, howe¥er, 10T Under the Strickland 

formulation the reviewing court may consider directly any 

Cini al the prosecutor’s failure to respond might 

have he preparation or presentation of the defend- 
assess the possibility 

at such effect might have occurred in light of the totality of 
the circumstances and with an awareness of the difficulty of 
reconstructing in a post-trial proceeding the course that the 
defense and the trial would have taken had the defense not 

en misled by the prosecutor’s incomplete response. 

  

  

      

    

   

B 

In the present case, we think that there is a significant 
likelihood that the prosecutor’s response to respondent’s dis- 
covery motion misleadingly induced defense counsel to be- 
lieve that O’Connor and Mitchell could not be impeached on 
the basis of bias or interest arising from inducements offered 
by the Government. Defense counsel asked the prosecutor 
to disclose any inducements that had been made to witnesses, 
and the prosecutor failed to disclose that the possibility of a 
reward had been held out to O’Connor and Mitchell if the in- 
formation they supplied led to “the accomplishment of the ob- 
jective sought to be obtained . . . to the satisfaction of [the 
Government].” App. 22 and 23. This possibility of a re- 

¥ In particular, the Court explained in Strickland: “When a defendant 

challenges a conviction, the question is whether there is 2 reasonable prob- 

ability that, absent the errors, the factfinder would have had a reasonable 

doubt respecting guilt.” —— U. S., at (slip op. 25).   

   

     
    

ward gave O'Connor and Mitchell a direct, persona 
respondent’s conviction 
guarantee gir¥ promise or binding contract, but was 

expressly contingent on the Government's satisfaction with 
the end result, served only to strengthen any incentive to 

    

  

uaraleen 

   prosecutor conse: at 0’Connor and 
Mitchell received no promises of reward in return for provid- 
ing information in the affidavits implicating respondent in 
criminal activity. In fact, O'Connor and Mitchell signed the 
last of these affidavits the very day after they signed the 
ATF contracts. While petitioner is technically correct that 
the blank contracts did not constitute a “promise of reward,” 
the natural effect of these affidavits would be misleadingly to 
induce defense counsel to believe that O’Connor and Mitchell 
provided the information in the affidavits, and ultimately 
their testimony at trial recounting the same information, 
without any “inducements.” 

The District Court, nonetheless, found beyond a reason- 

able doubt that, had the information that the Government 
held out the possibility of reward to its witnesses been dis- 
closed, the result of the criminal prosecution would not have 
been different. If this finding were sustained by the Court 
of Appeals, the information would be immaterial even under 
the standard of materiality applicable to the prosecutor’s 
knowing use of perjured testimony. Although the express 
holding of the Court of Appeals was that the nondisclosure in 
this case required automatic reversal, the Court of Appeals 
also stated that it “disagreed” with the District Court’s find- 
ing of harmless error. In particular, the Court of Appeals 
appears to have disagreed with the factual premise on which 
this finding expressly was based. The District Court rea- 
soned that O’Connor’s and Mitchell's testimony was exculpa- 
tory on the narcotics charges. The Court of Appeals, how- 
ever, concluded, after reviewing the record, that O’Connor’s 

and Mitchell's testimony was in fact inculpatory on those 
charges. 719 F. 2d, at 1464, n. 1. Accordingly, we reverse 
the judgment of the Court of Appeals and remand the case to 
that court for a determination whether there is a reasonable 
probability that, had the inducement offered by the Govern- 
ment to O'Connor and Mitchell been disclosed to the defense, 
the result of the trial would have been different. 

It is so ordered. 

JUSTICE POWELL took no part in the decision of this case. 

JUSTICE WHITE, with whom THE CHIEF JUSTICE and JUS- 
TICE REHNQUIST join, concurring in part and concurring in 
the judgment. 

I agree with the Court that respondent is not entitled to 
have his conviction overturned unless he can show that the 
evidence withheld bw the Government was “material,” and I 

therefore join Parts I and II of the Court's opinion. I also 
agree with JUSTICE BLACKMUN that for purposes of this in- 
quiry; “evidence is material only if there is a reasonable prob- 
ability that, had the evidence been disclosed to the defense, 
the result of the proceeding would have been different.” 
Ante, at 14. As the Justice correctly observes, this standard 
is “sufficiently flexible” to cover all instances of prosecutorial 
failure to disclose evidence favorable to the accused. Id. 
Given the flexibility of the standard and the inherently fact- 
bound nature of the cases to which it will be applied, how- 
ever, I see no reason to attempt to elaborate on the relevance 

to the inquiry of the specificity of the defense’s request for 
disclosure, either generally or with respect to this case. I 

would hold simply that the proper standard is one of reason- 

ST IR EER TRS ITE, Sh BS RR Rl I Ee        

   

 



  

Marg 

6-25-85 The United States LAW WEEK 

  

   53 LW 5089 
    

able probability and that the Court of Appeals’ failure to 
apply this standard necessitates reversal. I therefore con- 
cur in the judgment. 

  

JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, 
dissenting. 

When the Government withholds from a defendant evi- 
dence that might impeach the prosecution’s only witnesses, 
that failure to disclose cannot be deemed harmless error. 
Because that is precisely the nature of the undisclosed evi- 
dence in this case, I would affirm the judgment of the Court 
of Appeals and would not remand for further proceedings. 

I 

The federal grand jury indicted the respondent, Hughes 
Anderson Bagley, on charges involving possession of fire- 
arms and controlled substances with intent to distribute. 
Following a bench trial, Bagley was found not guilty of the 
firearms charges, guilty of two counts of knowingly and in- 
tentionally distributing Valium, and guilty of several counts 
of a lesser included offense of possession of controlled sub- 
stances. He was sentenced to six months’ imprisonment and 
a special parole term of five years on the first count of distri- 
bution, and to three years of imprisonment, which were sus- 

pended, and five years’ probation, on the second distribution 

count. He received a suspended sentence and five years’ 
probation for the possession convictions. 

The record plainly demonstrates that on the two counts for 
which Bagley received sentences of imprisonment, the Gov- 
ernment’s entire case hinged on the testimony of two private 
security guards who aided the Bureau of Alcohol, Tobacco 

and Firearms (BATF) in its investigation of Bagley. In 1977 
the two guards, O'Connor and Mitchell, worked for the Mil- 

waukee Railroad; for about three years, they had been social 
acquaintances of Bagley, with whom they often shared coffee 
breaks. 7 Tr. 2-3; 8 Tr. 2a-3a. At trial, they testified that 

on two separate occasions they had visited Bagley at his 
home, where Bagley had responded to O’Connor’s complaint 
that he was extremely anxious by giving him Valium pills. 
In total, Bagley received $8 from O'Connor, representing the 
cost of the pills. At trial, Bagley testified that he had a pre- 
scription for the Valium because he suffered from a bad back, 

14 Tr. 963-964. No testimony to the contrary was intro- 
duced. O'Connor and Mitchell each testified that they had 
worn concealed transmitters and body recorders at these 
meetings, but the tape recordings were insufficiently clear to 
be admitted at trial and corroborate their testimony. 

Before trial, counsel for Bagley had filed a detailed dis- 
covery motion requesting, among other things, “any deals, 
promises or inducements made to witnesses in exchange for 
their testimony.” App. 17-19. Inresponse to the discovery 
request, the Government had provided affidavits sworn by 
O’Connor and Mitchell that had been prepared during their 
investigation of Bagley. Each affidavit recounted in detail 
the dealings the witnesses had had with Bagley and closed 
with the declaration, “I made this statement freely and vol- 

untarily without any threats or rewards, or promises of re- 

ward having been made to me in return for it.” Memoran- 
dum of Points and Authorities in Support of Pet. for Writ of 
Habeas Corpus, CV 80-3592-RJK(M) (CAS) Exhibits 1-9. 
Both of these agents testified at trial thereafter, and the Gov- 
ernment did not disclose the existence of any deals, promises 

or inducements. Counsel for Bagley asked O'Connor on 
cross examination whether he was testifying in response to 
pressure or threats from the Government about his job, and 

O'Connor said he was not. 7 Tr. 8-90. In light of the affi- 

davits, as well as the prosecutor’s silence as to the existence 

of any promises, deals or inducements, counsel did not pur- 

sue the issue of bias of either guard. 
As it turns out, however, in May 1977, seven months prior 

to trial, O’Connor and Mitchell each had signed an agreement 
providing that BATF would pay them for information they 
provided. The form was entitled “Contract for Purchase of 
Information and Payment of Lump Sum Therefore,” and pro- 
vided that the Bureau would, “upon the accomplishment of 

the objective sought to be obtained . . . pay to said vendor a 
sum commensurate with services and information rendered.” 
App. 22-23. It further invited the Bureau's special agent in 

charge of the investigation, Agent Prins, te recommend an 
amount to be paid after the information received had proved 
“worthy of compensation.” Agent Prins had personally pre- 
sented these forms to O'Connor and Mitchell for their signa- 
tures. The two witnesses signed the last of their affidavits, 
which declared the absence of any promise of reward, the day 
after they signed the BATF forms. After trial, Agent Prins 
requested that O'Connor and Mitchell each be paid $500, but 
the Bureau reduced these “rewards” to $300 each. App. to 
Pet. for Cert. 14a. The District Court Judge concluded that 
‘lt appears probable to the Court that O'Connor and Mitchell 
did expect to receive from the United States some kind of 
compensation, over and above their expenses, for their as- 

sistance, though perhaps not for their testimony.” Id., 

at 7a. 
Upon discovering these BATF forms through a Freedom of 

Information Act request, Bagley sought relief from his con- 
viction. The District Court Judge denied Bagley’'s motion to 
vacate his sentence stating that because he was the same 
judge who had been the original trier of fact, he was able to 
determine the effect the contracts would have had on his de- 
cision, more than four years earlier, to convict Bagley. The 
judge stated that beyond a reasonable doubt the contracts, if 
disclosed, would have had no effect upon the convictions: 

“The Court has read in their entirety the transcripts of 
the testimony of James P. O'Connor and Donald E. 
Mitchell at the trial . . . . Almost all of the testimony 
of both of those witnesses was devoted to the firearm 
charges in the indictment. The Court found the defend- 
ant not guilty of those charges. With respect to the 
charges against the defendant of distributing controlled 
substances and possessing controlled subtances with the 
intention of distributing them, the testimony of O’Con- 
nor and Mitchell was relatively very brief. With re- 
spect to the charges relating to controlled substances 
cross-examination of those witnesses by defendant's 

counsel did not seek to discredit their testimony as to the 
facts of distribution but rather sought to show that the 
controlled substances in question came from supplies 
which had been prescribed for defendant’s own use. As 
to that aspect of their testimony, the testimony of 

O’Connor and Mitchell tended to be favorable to the de- 
fendant.” Id., at 8a. 

The foregoing statement, as to which the Court remands 
for further consideration, is seriously flawed on its face. 

First, the testimony that the court describes was In fact the 
only inculpatory testimony in the case as to the two counts 
for which Bagley received a sentence of imprisonment. If, 
as the judge claimed, the testimony of the two information 

“vendors” was “very brief” and in part favorable to the 
defendant, that fact shows the weakness of the prosecutor's 
case, not the harmlessness of the error. If the testimony 

that might have been impeached is weak and also cumulative, 
corroborative or tangential, the failure to disclose the im- 
peachment evidence could conceivably be held harmless. i 

¥ 

 



  

53 LW 5090 The United States LAW WEEK 6-25-85 
  

But when the testimony is the start and finish of the prosecu- 
tion’s case, and is weak nonetheless, quite a different conclu- 
sion must necessarily be drawn. 

Second, the court’s statement that Bagley did not attempt 

to discredit the witnesses’ testimony, as if to suggest that 
impeachment evidence would not have been used by the de- 
fense, ignores the realities of trial preparation and strategy, 

and is factually erroneous as well. Initially, the Govern- 
ment’s failure to disclose the existence of any inducements to 

its witnesses, coupled with its disclosure of affidavits stating 
that no promises had been made, would lead all but the most 
careless lawyer to step wide and clear of questions about 
promises or inducements. The combination of nondisclosure 
and disclosure would simply lead any reasonable attorney to 
believe that the witness could not be impeached on that basis. 
Thus, a firm avowal that no payment is being received in re- 
turn for assistance and testimony, if offered at trial by a 
witness who is not even a Government employee, could be 
devastating to the defense. A wise attorney would, of ne- 
cessity, seek an alternative defense strategy. 

Moreover, counsel for Bagley in fact did attempt to dis- 
credit O'Connor, by asking him whether two BATF agents 
had pressured him or had threatened that his job might be in 
jeopardy, in order to get him to cooperate. 7 Tr. 89-90. 
But when O'Connor answered in the negative, ibid., counsel 
stopped this line of questioning. In addition, counsel for 
Bagley attempted to argue to the District Court, in his clos- 
ing argument, that O'Connor and Mitchell had “fabricated” 
their accounts, 14 Tr. 1117, but the court rejected the 

proposition: 

“Let me say this to you. I would find it hard to be- 
lieve really that their testimony was fabricated. I think 
they might have been mistaken. You know, it is possi- 
ble that they were mistaken. I really did not get the im- 
pression at all that either ome or both of those men were 
trying at least in court here to make a case against the 
defendant.” Id., at 1117-1118. (Emphasis added.) 

The District Court, in so saying, of course had seen no evi- 

dence to suggest that the two witnesses might have any mo- 
tive for “mak{ing] a case” against Bagley. Yet, as JUSTICE 
BLACKMUN points out, the possibility of a reward, the size of 
which is directly related to the Government’s success at trial, 
gave the two witnesses a “personal stake” in the conviction 
and an “incentive to testify falsely in order to secure a convic- 
tion.” Ante, at 15. 

Nor is this case unique. Whenever the Government fails, 
in response to a request, to disclose impeachment evidence 
relating to the credibility of its key witnesses, the truth-find- 
ing process of trial is necessarily thrown askew. The failure 
to disclose evidence affecting the overall credibility of wit- 
nesses corrupts the process to some degree in all instances, 
see Giglio v. United States, 405 U. S. 150 (1972); Napue Vv. 

Illinois, 360 U. S. 264 (1959); United States v. Agurs, 427 

U. S. 97, 121 (1976) (MARSEALL, J., dissenting), but when 
“[t]he reliability of a given witness may well be determi- 
native of guilt or innocence,” Giglio, supra, at 154 (quoting 
Napue, supra, at 269), and when “the Government's case de- 
pend(s] almost entirely on” the testimony of a certain wit- 
ness, 405 U. S., at 154, evidence of that witness’ possible bias 

simply may not be said to be irrelevant, or its omission harm- 
less. As THE CHIEF JUSTICE said in Giglio v. United States, 
in which the Court ordered a new trial in a case in which a 

promise to a key witness was not disclosed to the jury, 

“[Wilithout [Taliento’s testimony] there could have 

been no indictment and no evidence to carry the case to 
the jury. Taliento’s credibility as a witness was there- 

fore an important issue in the case, and evidence of any 

understanding or agreement as to a future prosecution 
would be relevant to his credibility and the jury was en- 
titled to know of it. 

“For these reasons, the due process requirements 
enunciated in Napue and other cases cited earlier re- 
quire a new trial.” Id., at 154-155. 

Here, too, witnesses O'Connor and Mitchell were crucial to 

the Government's case. Here, too, their personal credibility 
was potentially dispositive, particularly since the allegedly 
corroborating tape recordings were not audible. It simply 
cannot be denied that the existence of a contract signed by 
those witnesses, promising a reward whose size would de- 
pend “on the Government's satisfaction with the end result,” 
ante, at 18, might sway the trier of fact, or cast doubt on the 

truth of all that the witnesses allege. In such a case, the 
trier of fact is absolutely entitled to know of the contract, and 
the defense counsel is absolutely entitled to develop his case 
with an awareness of it. Whatever the applicable standard 
of materiality, see infra, in this instance it undoubtedly is 
well met. 

Indeed, Giglio essentially compels this result. The simi- 

larities between this case and that one are evident. In both 

cases, the triers of fact were left unaware of Government in- 

ducements to key witnesses. In both cases, the individual 
trial prosecutors acted in good faith when they failed to 
disclose the exculpatory evidence. See Giglio, supra, at 
151-153; App. to Pet. for Cert. 13a (magistrate’s finding that 
Bagley prosecutor would have disclosed information had he 
known of it). The sole difference between the two cases lies 
in the fact that in Giglio, the prosecutor affirmatively stated 
to the trier of fact that no promises had been made. Here, 
silence in response to a defense request took the place of an 
affirmative error at trial—although the prosecutor did make 
an affirmative misrepresentation to the defense in the affida- 
vits. Thus, in each case, the trier of fact was left unaware of 

powerful reasons to question the credibility of the witnesses. 
“[TThe truth-seeking process is corrupted by the withholding 
of evidence favorable to the defense, regardless of whether 
the evidence is directly contradictory to evidence offered by 
the prosecution.” Agurs, supra, at 120 (MARSHALL, J., dis- 

senting). In this case, as in Giglio, a new trial is in order, 

and the Court of Appeals correctly reversed the District 

Court’s denial of such relief. 

II 

Instead of affirming, the Court today chooses to reverse 

and remand the case for application of its newly stated stand- 
ard to the facts of this case. While I believe that the evi- 
dence at issue here, which remained undisclosed despite a 
particular request, undoubtedly was material under the 
Court’s standard, I also have serious doubts whether the 
Court’s definition of the constitutional right at issue ade- 
quately takes account of the interests this Court sought to 
protect in its decision in Brady v. Maryland, 373 U. S. 83 

(1963). 

A 

I begin from the fundamental premise, which hardly bears 
repeating, that “[t]he purpose of a trial is as much the acquit- 
tal of an innocent person as it is the conviction of a guilty 
one.” Application of Kapatos, 208 F. Supp. 833, 888 (SDNY 
1962); see Giles v. Maryland, 386 U. S. 66, 98 (1967) (Fortas, 

J., concurring in judgment) (“The State’s obligation is not to 
convict, but to see that, so far as possible, truth emerges”). 

When evidence favorable to the defendant is known to exist, 

disclosure only enhances the guest for truth; it takes no di- 
rect toll on that inquiry. Moreover, the existence of any 

 



  

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6-25-85 The United States LAW WEEK 53 LW 5091 
  

small piece of evidence favorable to the defense may, in a par- 
ticular case, create just the doubt that prevents the jury from 
returning a verdict of guilty. The private whys and where- 
fores of jury deliberations pose an impenetrable barrier to 
our ability to know just which piece of information might 
make, or might have made, a difference. 

When the State does not disclose information in its posses- 
sion that might reasonably be considered favorable to the de- 
fense, it precludes the trier of fact from gaining access to 
such information and thereby undermines the reliability of 
the verdict. Unlike a situation in which exculpatory evi- 
dence exists but neither the defense nor the prosecutor has 
uncovered it, in this situation the State already has, resting 
in its files, material that would be of assistance to the defend- 

ant. With a minimum of effort, the State could improve the 

real and apparent fairness of the trial enormously, by assur- 
ing that the defendant may place before the trier of fact fa- 
vorable evidence known to the Government. This proposi- 
tion is not riew. We have long recognized that, within the 
limit of the State’s ability to identify so-called exculpatory 
information, the State’s concern for a fair verdict precludes 

it from withholding from the defense evidence favorable to 
the defendant’s case in the prosecutor’s files. See, e. g., 

Pyle v. Kansas, 317 U. S. 213, 215-216 (1942) (allegation 

that imprisonment resulted from perjured testimony and de- 
liberate suppression by authorities of evidence favorable to 
him “charge a deprivation of rights guaranteed by the Fed- 
eral Constitution”). 

This recognition no doubt stems in part from the fre- 
quently considerable imbalance in resources between most 
criminal defendants and most prosecutors’ offices. Many, 
perhaps most, criminal defendants in the United States are 
represented by appointed counsel, who often are paid mini- 
mal wages and operate on shoestring budgets. In addition, 
unlike police, defense counsel generally is not present at the 
scene of the crime, or at the time of arrest, but instead comes 
into the case late. Moreover, unlike the Government, de- 

fense counsel is not in the position to make deals with wit- 
nesses to gain evidence. Thus, an inexperienced, unskilled, 
or unaggressive attorney often is unable to amass the factual 
support necessary to a reasonable defense. When favorable 
evidence is in the hands of the prosecutor but not disclosed, 
the result may well be that the defendant is deprived of a fair 
chance before the trier of fact, and the trier of fact is de- 

prived of the ingredients necessary to a fair decision. This 
grim reality, of course, poses a direct challenge to the tradi- 
tional model of the adversary criminal process,’ and perhaps 

' As early as 1807, this Court made clear that prior to trial a defendant 

must have access to impeachment evidence in the Government's posses- 

sion. Addressing defendant Aaron Burr’s claim that he should have ac- 

cess to the letter of General Wilkinson, a key witness against Burr in his 
trial for treason, Chief Justice Marshall wrote: 

“The application of that letter to the case is shown by the terms in which 

the communication was made. It is a statement of the conduct of the ac- 

cused made by the person who is declared to be the essential witness 

against him. The order for producing this letter is opposed: 

“First, because it is not material to the defense. It is a principle, uni- 

versally acknowledged, that a party has a right to oppose to the testimony 
of any witness against him, the declarations which that witness has made 

at other times on the same subject. If he possesses this right, he must 

bring forward proof of those declarations. This proof must be obtained 

before he knows positively what the witness will say; for if he waits until 

the witness has been heard at the trial, it is too late to meet him with his 

former declarations. Those former declarations, therefore, constitute a 

mass of testimony, which a party has a right to obtain by way of precau- 

tion, and the positive necessity of which can only be decided at the trial.” 

United States v. Burr, 25 Fed. Cas. 30, 36 (No. 14,692d) (CC Va. 1807). 

*See Fortas, The Fifth Amendment: Nemo Tenetur Prodere Seipsum, 

25 Clev. B. A. J. 91, 98 (1954) (“The state and [the defendant] could meet, 

as the law contemplates, in adversary trial, as equals—strength against 

a a a 2 Es A 

because this reality so directly questions the fairness of our 
longstanding processes, change has been cautious and halt- 
ing. Thus, the Court has not gone the full road and ex- 

pressly required that the State provide to the defendant ac- 
cess to the prosecutor’s complete files, or investigators who 
will assure that the defendant has an opportunity to discover 
every existing piece of helpful evidence. But cf. Ake v. 
Oklahoma, 470 U. S. —— (1985) (access to assistance of psy- 
chiatrist constitutionally required on proper showing of 
need). Instead, in acknowledgment of the fact that impor- 
tant interests are served when potentially favorable evidence 
is disclosed, the Court has fashioned a compromise, requiring 
that the prosecution identify and disclose to the defendant 
favorable material that it possesses. This requirement is 
but a small, albeit important; step toward equality of 
justice.® 

B 

Brady v. Maryland, 373 U. S. 83 (1963), of course, estab- 
lished this requirement of disclosure as a fundamental ele- 
ment of a fair trial by holding that a defendant was denied 
due process if he was not given access to favorable evidence 
that is material either to guilt or punishment. Since Brady 
was decided, this Court has struggled, in a series of deci- 

sions, to define how best to effectuate the right recognized. 
To my mind, the Brady decision, the reasoning that underlay 

it, and the fundamental interest in a fair trial, combine to 

give the criminal defendant the right to receive from the 
prosecutor, and the prosecutor the affirmative duty to turn 
over to the defendant, all information known to the govern- 
ment that might reasonably be considered favorable to the 
defendant’s case. Formulation of this right, and imposition 
of this duty, are “the essence of due process of law. It is the 
State that tries a man, and it is the State that must insure 
that the trial is fair.” Moore v. Illinois, 408 U. S. 786, 
809-810 (1972) (MARSHALL, J., concurring in part and dis- 
senting in part). If that right is denied, or if that duty is 
shirked, however, I believe a reviewing court should not 

automatically reverse but instead should apply the harmless 
error test the Court has developed for instances of error af- 
fecting constitutional rights. See Chapman v. California, 
386 U. S. 18 (1967). 
My view is based in significant part on the reality of crimi- 

nal practice and on the consequently inadequate protection to 
the defendant that a different rule would offer. To imple- 
ment Brady, courts must of course work within the confines 

of the criminal process. Our system of criminal justice is 
animated by two seemingly incompatible notions: the adver- 
sary model, and the State’s primary concern with justice, not 
convictions. Brady, of course, reflects the latter goal of jus- 
tice, and is in some ways at odds with the competing model of 
a sporting event. Our goal, then, must be to integrate the 
Brady right into the harsh, daily reality of this apparently 
discordant criminal process. : 

At the trial level, the duty of the state to effectuate Brady 
devolves into the duty of the prosecutor; the dual role that 

  

  

strength, resource against resource, argument against argument”); see 

also Babcock, Fair Play: Evidence Favorable to an Accused and Effective 

Assistance of Counsel, 34 Stan. L. Rev. 1133, 1142-1145 (1982) (discussing 
challenge Brady poses to traditional adversary model). 

Indeed, this Court's recent decision stating a stringent standard for 

demonstrating ineffective assistance of counsel makes an effective Brady 
right even more crucial. Without a real guarantee of effective counsel, the 

relative abilities of the state and the defendant become even more skewed, 
and the need for a minima! guarantee of access to potentially favorable in- 

formation becomes significantly greater. See Strickiand v. Washington, 

466 U. S. (1984): id., at (MARSHALL, J., dissenting); Babcock, 

supra, at 1163-1174 {discussing the interplay between the right to Brady 
material and the right to effective assistance of counsel). : 

    

a A BE A BE 3 EY eT) 

 



   
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i a SEE Rs ri re Se rN 

6-25-85 
  

the prosecutor must play poses a serious obstacle to imple- 
menting Brady. The prosecutor is by trade, if not necessity, 
a zealous advocate. He is a trained attorney who must ag- 
gressively seek convictions in court on behalf of a victimized 
public. At the same time, as a representative of the State, 
he must place foremost in his hierarchy of interests the de- 
termination of truth. Thus, for purposes of Brady, the pros- 
ecutor must abandon his role as an advocate and pore 
through his files, as objectively as possible, to identify the 
material that could undermine his case. Given this obviously 
unharmonious role, it is not surprising that these advocates 
oftentimes overlook or downplay potentially favorable evi- 

dence, often in cases in which there is no doubt that the fail- 
ure to disclose was a result of absolute good faith. Indeed, 
one need only think of the Fourth Amendment's requirement 
of a neutral intermediary, who tests the strength of the 
policeman-advocate’s facts, to recognize the curious status 

Brady imposes on a prosecutor. One telling example, of- 
fered by Judge Newman when he was a United States Attor- 
ney, suffices: 

“I recently had occasion to discuss /Brady/ at a PLI 
Conference in New York City before a large group of 
State prosecutors. . . . I put to them this case: You are 
prosecuting a bank robbery. You have talked to two or 
three of the tellers and one or two of the customers at 
the time of the robbery. They have all taken a look at 
your defendant in a line-up, and they have said, ‘This is 
the man.” In the course of your investigation you also 
have found another customer who was in the bank that 
day, who viewed the suspect, and came back and said, 
“This is not the man.’ 

“The question I put to these prosecutors was, do you 
believe you should disclose to the defense the name of 
the witness who, when he viewed the suspect, said ‘that 

is not the man’? In a room of prosecutors not quite as 
large at this group but almost as large, only two hands 
went up. There were only two prosecutors in that 
group who felt they should disclose or would disclose 
that information. Yet I was putting to them what I 
thought was the easiest case—the clearest case for dis- 
closure of exculpatory information!” J. Newman, A 
Panel Discussion before the Judicial Conference of the 
Second Judicial Circuit (Sept. 8, 1967), reprinted in 
Discovery in Criminal Cases, 44 F. R. D. 481, 500-501 

(1968). 

While familiarity with Brady no doubt has increased since 
1967, the dual role that the prosecutor must play, and the 
very real pressures that role creates, have not changed. 

The prosecutor surely greets the moment at which he must 
turn over Brady material with little enthusiasm. In perus- 
ing his files, he must make the often difficult decision as to 
whether evidence is favorable, and must decide on which side 

to err when faced with doubt. In his role as advocate, the 
answers are clear. In his role as representative of the State, 
the answers should be equally clear, and often to the con- 
trary. Evidence that is of doubtful worth in the eyes of the 
prosecutor could be of inestimable value to the defense, and 
might make the difference to the trier of fact. 

Once the prosecutor suspects that certain information 
might have favorable implications for the defense, either be- 
cause it is potentially exculpatory or relevant to credibility, I 
see no reason why he should not be required to disclose it. 

ter all, favorable evidence indisputably enhances the truth- 
seeking process at trial. And it is the job of the defense, not 

the prosecution, to decide whether and in what way to use 

arguably favorable evidence. In addition, to require dis- 
closure of all evidence that might reasonably be considered 

favorable to the defendant would have the precautionary ef- 
fect of assuring that no information of potential consequence 
is mistakenly overlooked. By requiring full disclosure of fa- 
vorable evidence in this way, courts could begin to assure 
that a possibly dispositive piece of information is not withheld 
from the trier of fact by a prosecutor who is torn between the 
two roles he must play. A clear rule of this kind, coupled 
with a presumption in favor of- disclosure, also would facili- 

tate the prosecutor’s admittedly difficult task by removing a 
substantial amount of unguided discretion. 

If a trial will thereby be more just, due process would seem 
to require such a rule absent a countervailing interest. I see 
little reason for the Government to keep such information 
from the defendant. Its interest in nondisclosure at the trial 
stage is at best slight: the Government apparently seeks to 
avoid the administrative hassle of disclosure, and to prevent 
disclosure of inculpatory evidence that might result in wit- 
ness intimidation and manufactured rebuttal evidence. 
Neither of these concerns, however, counsels in favor of a 
rule of nondisclosure in close or ambiguous cases. To the 
contrary, a rule simplifying the disclosure decision by defini- 
tion does not make that decision more complex. Nor does 
disclosure of favorable evidence inevitably lead to disclosure 
of inculpatory evidence, as might an open file policy, or to the 
anticipated wrong-doings of defendants and their lawyers, if 
indeed such fears are warranted. We have other mecha- 
nisms for disciplining unscrupulous defense counsel; ham- 
stringing their clients need not be one of them. I simply do 
not find any state interest that warrants withholding from a 
presumptively innocent defendant, whose liberty is at stake 
in the proceeding, information that bears on his case and that 
might enable him to defend himself. 

Under the foregoing analysis, the prosecutor’s duty is 
quite straightforward: he must divulge all evidence that rea- 
sonably appears favorable to the defendant, erring on the 
side of disclosure. 

C 

The Court, however, offers a complex alternative. It de- 

fines the right not by reference to the possible usefulness of 
the particular evidence in preparing and presenting the case, 
but retrospectively, by reference to the likely effect the evi- 
dence will have on the outcome of the trial. Thus, the Court 

holds that due process does not require the prosecutor to 
turn over evidence unless the evidence is “material,” and the 

Court states that evidence is “material” “only if there is a 
reasonable probability that, had the evidence been disclosed 
to the defense, the result of the proceeding would have been 
different.” Ante, at 14, ——. Although this looks like a 
post-trial standard of review, see, e. g., Strickland v. Wash- 

ington, 466 U. S. —— (1984) (adopting this standard of re- 
view), it is not. Instead, the Court relies on this review 

standard to define the contours of the defendant’s constitu- 
tional right to certain material prior to trial. By adhering to 
the view articulated in United States v. Agurs, 427 U. S. 97 

(1976)—that there is no constitutional duty to disclose evi- 
dence unless nondisclosure would have a certain impact on 
the trial—the Court permits prosecutors to withhold with im- 
punity large amounts of undeniably favorable evidence, and it 

imposes on prosecutors the burden to identify and disclose 
evidence pursuant to a pretrial standard that virtually defies 
definition. 

‘See J. Newman, 4 F. R. D., at 499 (describing the “serious” problem 
of witness intimidation that arises from prosecutor’s disclosure of wit- 
nesses). But see Brennan, The Criminal Prosecution: Sporting Event or 

Quest for Truth?, 1963 Wash. U. L. Q. 279, 289-290 (disputing a similar 
argument). 

 



  

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6-25-85 The United States LAW WEEK 53 LW 5093 
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The standard for disclosure that the Court articulates 
today enables prosecutors to avoid disclosing obviously excul- 
patory evidence while acting well within the bounds of their 
constitutional obligation. Numerous lower court cases pro- 
vide examples of evidence that is undoubtedly favorable but 
not necessarily “material” under the Court’s definition, and 
that consequently would not have to be disclosed to the de- 
fendant under the Court’s view. See, ¢. g., United States v. 
Sperling, 726 F. 2d 69, 71-72 (CA2 1984) (prior statement 
disclosing motive of key Government witness to testify), cert. 
denied, — U. S. —— (1984); King v. Ponte, 717 F. 2d 635 
(CA1 1983) (prior inconsistent statements of Government 
witness); see also United States v. Ozman, 740 F. 2d 1298, 
1311 (CA3 1984) (addressing. “disturbing” prosecutorial tend- 

ency to withhold information because of later opportunity to 
argue, with the benefit of hindsight, that information was not 
“material”), cert. pending sub mom. United States v. 
Pflaumer, No. 84-1033. The result is to veer sharply away 
from the basic notion that the fairness of a trial increases 
with the amount of existing favorable evidence to which the 
defendant has access, and to disavow the ideal of full 
disclosure. 

The Court's definition poses other, serious problems. Be- 
sides legitimizing the nondisclosure of clearly favorable evi- 
dence, the standard set out by the Court also asks the pros- 
ecutor to predict what effect various pieces of evidence will 
have on the trial. He must evaluate his case and the case of 
the defendant—of which he presumably knows very little— 
and perform the impossible task of deciding whether a certain 
piece of information will have a significant impact on the. trial, 
bearing in mind that a defendant will later shoulder the heavy 
burden of proving how it would have affected the outcome. 
At best, this standard places on the prosecutor a responsibil- 
ity to speculate, at times without foundation, since the pros- 
ecutor will not normally know what strategy the defense will 
pursue or what evidence the defense will find useful: At 
worst, the standard invites a prosecutor, whose interests are 
conflicting, to gamble, to play the odds, and to take a chance 

that evidence will later turn out not to have been potentially 
dispositive. One Court of Appeals has recently vented its 
frustration at these unfortunate consequences: 

“It seems clear that those tests [for materiality] have a 
tendency to encourage unilateral decision-making by 
prosecutors with respect to disclosure. . . . [T]he root 
of the problem is the prosecutor’s tendency to adopt a 
retrospecive view of materiality. Before trial, the pros- 
ecutor cannot know whether, after trial, particular evi- 

dence will prove to have been material. . . . Following 
their adversarial instincts, some prosecutors have deter- 
mined unilaterally that evidence will not be material and, 
often in good faith, have disclosed it neither to defense 
counsel nor to the court. If and when the evidence 
emerges after trial, the prosecutor can always argue, 
with the benefit of hindsight, that it was not material.” 
United States v. Orman, supra, at 1310. 

The Court’s standard also encourages the prosecutor to as- 
sume the role of the jury, and to decide whether certain evi- 
dence will make a difference. In our system of justice, that 
decision properly and wholly belongs to the jury. The pros- 
ecutor, convinced of the guilt of the defendant and of the 
truthfulness of his witnesses, may all too easily view as ir- 
relevant or unpersuasive evidence that draws his own judg- 
ments into question. Accordingly he will decide the evi- 
dence need not be disclosed. But the ideally neutral trier of 
fact, who approaches the case from a wholly different per- 
spective, is by the prosecutor’s decision denied the opportu- 
nity to consider the evidence. The reviewing court, faced 

with a verdict of guilty, evidence to support that verdict, and 
pressures, again understandable, to finalize criminal judg- 

ments, is in little better position to review the withheld 
evidence than the prosecutor. 

I simply cannot agree with the Court that the due process 
right to favorable evidence recognized in Brady was intended 
to become entangled in prosecutorial determinations of the 
likelihood that. particular information would affect the out- 
come of trial. Almost a decade of lower court practice with 
Agurs convinces me that courts and prosecutors have come 
to pay “too much deference to the federal common law policy 
of discouraging discovery in criminal cases, and too little 
regard to due process of law for defendants.” United States 
v. Ozman, supra, at 1310-1311. Apparently anxious to as- 
sure that reversals are handed out sparingly, the Court has 
defined a rigorous test of materiality. Eager to apply the 
“materiality” standard at the pre-trial stage, as the Court 
permits them to do, prosecutors lose sight of the basic princi- 
ples underlying the doctrine. I would return to the original 
theory and promise of Brady and reassert the duty of the 
prosecutor to disclose all evidence in his files that might rea- 
sonably be considered favorable to the defendant's case. No 
prosecutor can know prior to trial whether such evidence wil 
be of consequence at trial; the mere fact that it might be, 
however, suffices to mandate disclosure.® 

s Brady not only stated the rule that suppression by the prosecution of 

evidence favorable to the defendant “violates due process where the evi- 

dence is material either to guilt or to punishment,” 373 U. S,, at 87, but 
also observed that two decisions of the Court of Appeals for the Third Cir- 

cuit “state the correct constitutional rule.” Id., at 86. Neither of those 

decisions limited the right only to evidence that is “material” within the 
meaning that the Court today articulates. Instead, they provide strong 

evidence that Brady might have used the word in its evidentiary sense, to 
mean, essentially, germane to the points at issue. 

In United States ex rel. Almeida v. Baldi, 195 F. 2d 815 (CA3 1952), 
cert. denied, 345 U. S. 904 (1953), the appeals court granted a petition for 

habeas corpus in a case in which the State had withheld from the defendant 

evidence that might have mitigated his punishment. After describing the 

withheld evidence as “relevant” and “pertinent,” id., at 819, the court con- 

cluded: “We think that the conduct of the Commonwealth as outlined in the 

instant case is in conflict with our fundamental principles of liberty and jus- 

tice. The suppression of evidence favorable to Almeida was a denial of due 

process.” Id., at 820. Similarly, in United States ex rel. Thompson v. 

Dye, 221 F. 2d 763, 765 (CA3 1955), cert. denied, 350 U. S. 875 (1955), the 
District Court had denied a petition for habeas corpus after finding that 
certain evidence of defendant's drunkenness at the time of the offense in 

question was not “vital” to the defense and did not require disclosure. 123 

F. Supp. 759, 762 (WD Pa. 1954). The Court of Appeals reversed, observ- 
ing that whether or not the jury ultimately would credit the evidence at 

issue, the evidence was substantial and the State’s failure to disclose it can- 

not “be held as a matter of law to be unimportant to the defense here.” 

21 PF. 24, at 767. 
It is clear that the term “material” has an evidentiary meaning quite dis- 

tinet from that which the Court attributes to it. Judge Weinstein, for ex- 

ample, defines as synonymous the words “ultimate fact,” “operative fact,” 

“material fact,” and “consequential fact,” each of which, he states, means 

“a ‘fact that is of consequengg to the determination of the action.’” 1J. 

Weinstein, M. Berger, Weinstein’s Evidence 140103], n. 1 (1982) (quoting 

Rule 401). Similarly, another treatise on evidence explains that there are 

two components to relevance—materiality and probative value. “Materi- 

ality looks to the relation between the propositions for which the evidence 

is offered and the issues in the case. If the evidence is offered to help 

prove a proposition which is not a matter in issue, the evidence is immate- 

rial.” E. Cleary, McCormick on Evidence § 185 (3d ed. 1984). “Probative 

value” addresses the tendency of the evidence to establish a “material” 

proposition. Ibid. See also 1 J. Wigmore, Evidence §2 (P. Tillers rev. 

1982). There is nothing in Brady to suggest that the Court intended any- 

thing other than a rule that favorable evidence need only relate to a propo- 
sition at issue in the case in order to merit disclosure. 

Even if the Court did not use the term “material” simply to refer to 
favorable evidence that might be relevant, however, I still believe that due 

process requires that prosecutors have the duty to disclose all such evi- 

dence. The inherent difficulty in applying, prior to trial, a definition that 

relates to the outcome of the trial, and that is based on speculation and not 

 



  

53 LW 5094 The United States LAW WEEK 6-25-85 
  

D 

In so saying, I recognize that a failure to divulge favorable 
information should not result in reversal in all cases. It may 

be that a conviction should be affirmed on appeal despite the 

prosecutor’s failure to disclose evidence that reasonably 

might have been deemed potentially favorable prior to trial. 

The State’s interest in nondisclosure at trial is minimal, and 

should therefore yield to the readily apparent benefit that full 

disclosure would convey to the search for truth. After trial, 

however, the benefits of disclosure may at times be tempered 

by the State’s legitimate desire to avoid retrial when error 

has been harmless. However, in making the determination 

of harmlessness, I would apply our normal constitutional 

error test and reverse unless it is clear beyond a reasonable 

doubt that the withheld evidence would not have affected the 

outcome of the trial. See Chapman v. California, 386 U. S. 

18.(1967); see also Agurs, 427 U. S., at 119-120 (MARSHALL, 

J., dissenting). 
Any rule other than automatic reversal, of course, dilutes 

the Brady right to some extent and offers the prosecutor an 
incentive not to turn over all information. In practical ef- 
fect, it might be argued, there is little difference between the 

rule I propose—that a prosecutor must disclose all favorable 

evidence in his files, subject to harmless error review—and 

the rule the Court adopts—that the prosecutor must disclose 

only the favorable information that might affect the outcome 
of the trial. According to this argument, if a constitutional 
right to all favorable evidence leads to reversal only when the 
withheld evidence might have affected the outcome of the 
trial, the result will be the same as with a constitutional right 

only to evidence that will affect the trial outcome. See 

Capra, Access to Exculpatory Evidence: Avoiding the Agurs 

Problems of Prosecutorial Discretion and Retrospective Re- 
view, 53 Ford. L. Rev. 391, 409-410, n. 117 (1984). For sev- 

eral reasons, however, I disagree. First, I have faith that a 

prosecutor would treat a rule requiring disclosure of all in- 
formation of a certain kind differently from a rule requiring 
disclosure only of some of that information. Second, persist- 

ent or egregious failure to comply with the constitutional 
duty could lead to disciplinary actions by the courts. Third, 
the standard of harmlessness I adopt is more protective of 
the defendant than that chosen by the Court, placing the bur- 
den on the prosecutor, rather then the defendant, to prove 

the harmlessness of his actions. It would be a foolish pros- 
ecutor who gambled too glibly with that standard of review. 
And finally, it is unrealistic to ignore the fact that at the 
appellate stage the State has an interest in avoiding retrial 
where the error is harmless beyond a reasonable doubt. 
That interest counsels against requiring a new trial in every 

case. 
Thus, while I believe that some review for harmlessness is 

in order, I disagree with the Court’s standard, even were it 

  

  

knowledge, means that a considerable amount of potentially consequential 

material might slip through the Court’s standard. Given the experience of 

the past decade with Agurs, and the practical problem that inevitably ex- 

ists because the evidence must be disclosed prior to trial to be of any use, I 
can only conclude that all potentially favorable evidence must be disclosed. 

Of course, I agree with courts that have allowed exceptions to thisruleon a 
showing of exigent circumstances based on security and law enforcement 

needs. 
‘In a case of deliberate prosecutorial misconduct, automatic reversal 

might well be proper. Certain kinds of constitutional error so infect the 

system of justice as to require reversal in all cases, such as discrimination 

in jury selection. See, e. g., Peters v. Kiff, 407 U. S. 493 (1972). A delib- 

erate effort of the prosecutor to undermine the search for truth clearly is in 

the category of offenses anathema to our most basic vision of the role of the 

State in the criminal process. 

merely a standard for review and not a definition of “materi- 
ality.” First, I see no significant difference for truth-seek- 
ing purposes between the Giglio situation and this one; for 
the same reasons I believe the result must therefore be the 
same here as in Giglio, see supra at —, I also believe the 
standard for reversal should be the same. The defendant’s 
entitlement to a new trial ought to be no different in the two 
cases, and the burden he faces on appeal should also be the 
same. Giglio remains the law for a class of cases, and I reaf- 
firm my belief that the same standard applies to this case as 
well. See Agurs, 427 U. S., at 119-120 (MARSHALL, J., 

dissenting). 
Second, only a strict appellate standard, which places on 

the prosecutor a burden to defend his decisions, will remove 
the incentive to gamble on a finding of harmlessness. Any 
lesser standard, and especially one in which the defendant 
bears the burden of proof, provides the prosecutor with am- 
ple room to withhold favorable evidence, and provides a re- 
viewing court with a simple means to affirm whenever in its 
view the correct result was reached. . This is especially true 
given the speculative nature of retrospective review: 

“The appellate court’s review of ‘what might have been’ 
is extremely difficult in the context of an adversarial sys- 
tem. Evidence is not introduced in a vacuum; rather, it 

is built upon. The absence of certain evidence may thus 
affect the usefulness, and hence the use, of other evi- 

dence to which defense counsel does have access. In- 
deed, the absence of a piece of evidence may affect the 
entire trial strategy of defense counsel.” Capra, supra, 
at 412. 

As a consequence, the appellate court no less than the pros- 
ecutor must substitute its judgment for that of the trier of 
fact under an inherently slippery test. Given such factors as 
a reviewing court’s natural inclination to affirm a judgment 
that appears “correct” and that court’s obvious inability to 
know what a jury ever will do, only a strict and narrow test 
that places the burden of proof on the prosecutor will begin to 
prevent affirmances in cases in which the withheld evidence 
might have had an impact. 

Even under the most protective standard of review, how- 
ever, courts must be careful to focus on the nature of the 

evidence that was not made available to the defendant and 
not simply on the quantity of the evidence against the defend- 
ant separate from the withheld evidence. Otherwise, as the 
Court today acknowledges, the reviewing court risks over- 
looking the fact that a failure to disclose has a direct effect on 
the entire course of trial. 

Without doubt, defense counsel develops his trial strategy 
based on the available evidence. A missing piece of informa- 
tion may well preclude the attorney from pursuing a strategy 
that potentially would be effective. His client might conse- 
quently be convicted even though nondisclosed information 
might have offered an additional or alternative defense, if not 
pure exculpation. Under such circumstances, a reviewing 
court must be sure not to focus on the amount of evidence 
supporting the verdict to determine whether the trier of fact 
reasonably would reach the same conclusion. Instead, the 
court must decide whether the prosecution has shown beyond 
a reasonable doubt that the new evidence, if disciosed and de- 

veloped by reasonably competent counsel, would not have af- 
fected the outcome of trial.” 

"For example, in United States ex rel. Butler v. Maroney, 319 F. 2d 

622 (CA3 1963), the defendant was convicted of first-degree murder. 
Trial counsel based his defense on temporary insanity at the time of the 

During trial, testimony suggested that the shooting might have murder. 

 



    
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6-25-85 The United States LAW WEEK 53 LW 5095 
  

In this case, it is readily apparent that the undisclosed 
information would have had an impact on the defense pre- 
sented at trial, and perhaps on the judgment. Counsel for 
Bagley argued to the trial judge that the Government's two 
key witnesses had fabricated their accounts of the drug dis- 
tributions, but the trial judge rejected the argument for lack 
of any evidence of motive. See supra, at ——. These key 
witnesses, it turned out, were each to receive monetary re- 

wards whose size was contingent on the usefulness of their 
assistance. These rewards “served only to strengthen any 
incentive to testify falsely in order to secure a conviction.” 
Ante, at 15. To my mind, no more need be said; this nondis- 

closure could not have been harmless. I would affirm the 
judgment of the Court of Appeals. 

JUSTICE STEVENS, dissenting. 

This case involves a straightforward application of the rule 
announced in Brady v. Maryland, 373 U. S. 83 (1963), a case 
involving nondisclosure of material evidence by the prosecu- 
tion in response to a specific request from the defense. I 
agree that the Court of Appeals misdescribed that rule, see 
ante, at 6-10, but I respectfully dissent from the Court’s un- 
warranted decision to rewrite the rule itself. 

As the Court correctly notes at the outset of its opinion, 
ante, at 6, the holding in Brady was that “the suppression by 
the prosecution of evidence favorable to an accused upon re- 
quest violates due process where the evidence is material 
either to guilt or punishment.” 373 U. S., at 87. We noted 

in United States v. Agurs, 427 U. S. 97, 103 (1976), that the 

rule of Brady arguably might apply in three different situa- 
tions involving the discovery, after trial, of evidence that had 
been known prior to trial to the prosecution but not to the 
defense. Our holding in Agurs was that the Brady rule ap- 
plies in two of the situations, but not in the third. 

The two situations in which the rule applies are those dem- 
onstrating the prosecution’s knowing use of perjured testi- 

  

  

been the accidental result of a struggle, but defense counsel did not develop 

that defense. It later turned out that an eyewitness to the shooting had 

given police a statement that the victim and Butler had struggled prior to 

the murder. If defense counsel had known before trial what the eyewit- 

ness had seen, he might have relied on an additional defense, and he might 

have emphasized the struggle. See Note, The Prosecutor’s Constitutional 

Duty to Reveal Evidence to the Defendant, 74 Yale L. J. 136, 145 (1964). 

Unless the same information already was known to counsel before trial, the 

failure to disclose evidence of that kind simply cannot be harmless because 

reasonably competent counsel might have utilized it to yield a different out- 

come. No matter how overwhelming the evidence that Butler committed 

the murder, he had a right to go before a trier of fact and present his best 

available defense. 

Similarly, in Ashley v. Texas, 319 F. 2d 80 (CAS 1963), cert. denied, 375 

U. S. 931 (1963), the defendant was sentenced to death for murder. The 

prosecutor disclosed to the defense a psychiatrist's report indicating that 

the defendant was sane, but he failed to disclose the reports of a psychia- 

trist and a psychologist indicating that the defendant was insane. The 

nondisclosed information did not relate to the trial defense of self-defense. 

But the failure to disclose the evidence clearly prevented defense counsel 

from developing the possibly dispositive defense that he might have devel- 
oped through further psychiatric examinations and presentation at trial. 

The nondisclosed evidence obviously threw off the entire course of trial 

preparation, and a new trial was in order. In such a case, there simply is 

no need to consider—in light of the evidence that actually was presented 

and the quantity of evidence to support the verdict returned—the possible 

effect of the information on the particular jury that heard the case. In- 

deed, to make such an evaluation would be to substitute the reviewing 

court's judgment of the facts, including the previously undisclosed evi- 

dence, for that of the jury, and to do so without the benefit of competent 

counsel's development of the information. 
See also Field, Assessing the Harmlessness of Federal Constitutional 

Error—A Process in Need of a Rationale, 125 U. Pa. L. Rev. 15 (1976) 

(discussing application of harmless error test). 

mony, exemplified by Mooney v. Holohan, 294 U. S. 103 
(1935), and the prosecution’s suppression of favorable evi- 
dence specifically requested by the defendant, exemplified by 
Brady itself. In both situations, the prosecution’s deliberate 
nondisclosure constitutes constitutional error—the conviction 
must be set aside if the suppressed or perjured evidence was 
“material” and there was “any reasonable likelihood” that it 
“could have affected” the outcome of the trial. 427 U. S., at 

103.! See Brady, supra, at 88 (“would tend to exculpate”); 
accord, United States v. Valenzuela-Burnal, 458 U. S. 858, 
874 (1982) (“reasonable likelihood”); Giglio v. United States, 
405 U. S. 150, 154 (1972) (“reasonable likelihood”); Napue v. 

Illinois, 360 U. S. 264, 272 (1959) (“may have had an effect on 
the outcome”). The combination of willful prosecutorial sup- 
pression of evidence and, “more importantly,” the potential 
“corruption of the truth seeking function of the trial process” 
requires that result. 427 U. S., at 104, 106.’ 

In Brady, the suppressed confession was inadmissible as 
to guilt and “could not have affected the outcome” on that 
issue. 427 U.S, at 106. However, the evidence “could 
have affected Brady's punishment,” and was, therefore, “ma- 

terial on the latter issue but not on the former.” Ibid. Ma- 
teriality was thus used to describe admissible evidence that 
“could have affected” a dispositive issue in the trial. 

The question in Agurs was whether the Brady rule should 
be extended, to cover a case in which there had been neither 

perjury nor a specific request—that is, whether the prosecu- 
tion has some constitutional duty to search its files and dis- 
close automatically, or in response to a general request, all 
evidence that “might have helped the defense, or might have 
affected the outcome.” 427 U. S., at 110.* Such evidence 

would, of course, be covered by the Brady formulation if it 
were specifically requested. We noted in Agurs, however, 
that because there had been no specific defense request for 

‘1 do not agree with the Court's reference to the “constitutional error, if 

any, in this case,” see ante, at 10 (emphasis added), because I believe a 

violation of the Brady rule is by definition constitutional error. Cf. United 

States v. Agurs, 427 U. 8. 97, 112 (1976) (rejecting rule making “every 

nondisclosure . . . automatic error” outside the Brady specific request or 

perjury contexts). As written, the Brady rule states that the Due Process 

Clause is violated when favorable evidence is not turned over “upon re- 

quest” and “the evidence is material either to guilt or punishment.” 

Brady v. Maryland, 373 U. S. 83, 87 (1963). As JUSTICE MARSHALL'S ex- 

plication of the record in this case demonstrates, ante, at 1-7, the sup- 

pressed evidence here was not only favorable to Bagley, but also unques- 

tionably material to the issue of his guilt or innocence. The two witnesses 

who had signed the undisclosed “Contract[s] for Purchase of Information” 
were the only trial witnesses as to the two distribution counts on which 

Bagley was convicted. On cross-examination defense counsel attempted 
to undercut the witnesses’ credibility, obviously a central issue, but had 

little factual basis for so doing. When defense counsel suggested a lack of 
credibility during final argument in the bench trial, the trial judge de- 
murred, because “I really diffi not get the impression at all that either one 

or both of these men were trying at least in court here to make a case 

against the defendant.” A finding that evidence showing that the wit- 
nesses in fact had a “direct, personal stake in respondent’s conviction,” 

ante, at 15, was nevertheless not “material” would be eggregiously errone- 
ous under any standard. 

“A prosecution that withholds evidence on demand of an accused 
which, if made available, would tend to exculpate him or reduce the penalty 
helps shape a trial that bears heavily on the defendant. That casts the 

prosecutor in.the role of an architect of a proceeding that does not comport 

with standards of justice . . . .” Brady, supra, at 87-88. 
*“{Wle conclude that there is no significance difference between cases in 

which there has been merely a general request for exculpatory matter and 

cases, like the one we must now decide, in which there has been no request 
atalls 

“We now consider whether the prosecutor has any constitutional duty to 
volunteer exculpatory matter to the defense, and if so, what standard of 
materiality gives rise to that duty.” 427 U. S., at 107. 

 



  

53 LW 5096 The United States LAW WEEK 6-25-85 
  

the later-discovered evidence, there was no notice to the 

prosecution that the defense did not already have that evi- 
dence or that it considered the evidence to be of particular 
value. Id., at 106-107. Consequently, we stated that in the 
absence of a request the prosecution has a constitutional duty 
to volunteer only “obviously exculpatory evidence.” Id., at 
107. Because this constitutional duty to disclose is different 
from the duty described in Brady, it is not surprising that we 
developed a different standard of materiality in the Agurs 
context. Necessarily describing the “inevitably imprecise” 
standard in terms appropriate to post-trial review, we held 
that no constitutional violation occurs in the absence of a spe- 
cific request unless “the omitted evidence creates a reason- 
able doubt that did not otherwise exist.” [Id., at 108, 112. 

What the Court ignores with regard to Agurs is that its 
analysis was restricted entirely to the general or no-request 
context. The “standard of materiality” we fashioned for 

the purpose of determining whether a prosecutor’s failure to 
volunteer exculpatory evidence amounted to constitutional 
error was and is unnecessary with regard to the two catego- 
ries of prosecutorial suppression already covered by the 
Brady rule. The specific situation in Agurs, as well as the 
circumstances of United States v. Valenzuela-Burnal, 458 
U. S. 858 (1982) and Strickland v. Washington, — U. S. 

—— (1984), simply fall “outside the Brady context.” Ante, 
at 13. 

But the Brady rule itself unquestionably applies to this 
case, because the Government failed to disclose favorable evi- 
dence that was clearly responsive to the defendant’s specific 
request. Bagley's conviction therefore must be set aside if 
the suppressed evidence was “material”—and it obviously 
was, see n. 1, supra—and if there is “any reasonable likeli- 
hood” that it could have affected the judgment of the trier 
of fact. Our choice, therefore, should be merely whether to 

affirm for the reasons stated in Part I of JUSTICE MAR- 
SHALL's dissent, or to remand to the Court of Appeals for fur- 
ther review under the standard stated in Brady. I would 
follow the latter course, not because I disagree with JUSTICE 
MARSHALL's analysis of the record, but because I do not be- 

lieve this Court should perform the task of reviewing trial 

‘“The proper standard of materiality must reflect our overriding con- 

cern with the justice of the finding of guilt. Such a finding is permissible 

only if supported by evidence establishing guilt beyond a reasonable doubt. 

It necessarily follows that if the omitted evidence creates a reasonable 

doubt that did not otherwise exist, constitutional error has been commit- 
ted.” Id., at 112. 

We also held in Agurs that when no request for particular information is 

made, post-trial determination of whether a failure voluntarily to disclose 

exculpatory evidence amounts to constitutional error depends on the “char- 

acter of the evidence, not the character of the prosecutor.” 427 U. S., at 

110. Nevertheless, implicitly acknowledging the broad discretion that 

trial and appellate courts must have to ensure fairness in this area, we 

noted that “the prudent prosecutor will resolve doubtful questions in favor 
of disclosure.” Id., at 108. Finally, we noted that the post-trial deter- 

mination of reasonable doubt will vary even in the no-request context, de- 

pending on all the circumstances of each case. For example, “if the ver- 

dict is already of questionable validity, additional evidence of relatively 

minor importance might be sufficient to creat a reasonable doubt.” Id., 
at 113. 

*See ante, at 8 (“Our starting point is the framework for evaluating the 
materiality of Brady evidence established in United States v. Agurs™; id., 

at 13 (referring generally to “the Agurs standard for the materiality of un- 

disclosed evidence”); ante, at 15 (MARSHALL, J., dissenting) (describing 

Agurs as stating a general rule that “there is no duty to disclose evidence 

unless nondisclosure would have a certain impact on the trial”). But see 

Babcock, Fair Play: Evidence Favorable to An Accused and Effective As- 

sistance of Counsel, 34 Stan. L. Rev. 1133, 1148 (1982) (Agurs “distin- 

guished” between no-request situations and the other two Brady contexts 
“where a pro-defense standard . . . would continue”). 

transcripts in the first instance. See United States v. Hast- 
ing, 461 U. S. 499, 516-517 (1983) (STEVENS, J., concurring 
in judgment). I am confident that the Court of Appeals 
would reach the appropriate result if it applied the proper 
standard. 

The Court, however, today sets out a reformulation of the 

Brady rule in which I have no such confidence. Even though 
the prosecution suppressed evidence that was specifically re- 
quested, apparently the Court of Appeals may now reverse 
only if there is a “reasonable probability” that the suppressed 
evidence “would” have altered “the result of the trial.” 
Ante, at 14, 16. According to the Court this single rule is 
“sufficiently flexible” to cover specific as well as general or 
no-request instances of nondisclosure, ante, at 14, because, at 

least in the view of JUSTICE BLACKMUN and JUSTICE O’CON- 
NOR, a reviewing court can “consider directly” under this 

standard the more threatening effect that nondisclosure in 
response to a specific defense request will generally have on 
the truth-seeking function of the adversary process. Ante, 
at 15 (opinion of JUSTICE BLACKMUN).* 

I cannot agree. The Court’s approach stretches the con- 
cept of “materiality” beyond any recognizable scope, trans- 
forming it from merely an evidentiary concept as used in 
Brady and Agurs, which required that material evidence be 
admissible and probative of guilt or innocence in the context 
of a specific request, into a result-focused standard that 
seems to include an independent weight in favor of affirming 
convictions despite evidentiary suppression. Evidence fa- 
vorable to an accused and relevant to the dispositive issue of 
guilt apparently may still be found not “material,” and hence 
suppressible by prosecutors prior to trial, unless there is a 
reasonable probability that its use would result in an acquit- 
tal. JUSTICE MARSHALL rightly criticizes the incentives 
such a standard creates for prosecutors “to gamble, to play 
the odds, and to take a chance that evidence will later turn 
out not to have been potentially dispositive.” Ante, at 17. 

Moreover, the Court’s analysis reduces the significance of 

deliberate prosecutorial suppression of potentially exculpa- 
tory evidence to that merely of one of numerous factors that 
“may” be considered by a reviewing court. Ante, at 15 
(opinion of BLACKMUN, J.). This is not faithful to our state- 

ment in Agurs that “[wlhen the prosecutor receives a specific 
and relevant request, the failure to make any response is sel- 
dom, if ever, excusable.” 427 U. S., at 106. Such suppres- 
sion is far more serious than mere nondisclosure of evidence 
in which the defense has expressed no particular interest. A 
reviewing court should attach great significance to silence in 
the face of a specific request, when responsive evidence is 
later shown to have been in the Government's possession. 
Such silence actively misleads in the same way as would an 
affirmative representation that exculpatory evidence does 
not exist when, in fast, it does (i. e., perjury)—indeed, the 
two situations are aptly described as “sides of a single coin.” 
Babcock, Fair Play: Evidence Favorable to An Accused and 
Effective Assistance of Counsel, 34 Stan. L. Rev. 1133, 1151 
(1982). 

Accordingly, although I agree that the judgment of the 
Court of Appeals should be vacated and that the case should 
be remanded for further proceedings, I disagree with the 

‘I of course agree with JUSTICE BLACKMUN, ante, at 11-12, n. 9, and 16, 
and JUSTICE MARSHALL, ante, at 21, that our long line of precedents estab- 

lishing the “reasonable likelihood” standard for use of perjured testimony 
remains intact. I also note that the Court plainly envisions that reversal 

of Bagley’s conviction would be possible on remand even under the new 
standard formulated today for specific-request cases. See ante, at 18. 

 



  

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6-25-85 The United States LAW WEEK 53 LW 5097 
  

Court's statement of the correct standard to be applied. I 
therefore respectfully dissent from the judgment that the 
case be remanded for determination under the Court’s new 
standard. 

DAVID A. STRAUSS, Assistant to the Solicitor General (REX E. LEE, Sol. 
Gen., STEPHEN S. TROTT, Asst. Atty. Gen., and ANDREW L. FREY, 
Dpty. Sol. Gen., with him on the brief) for petitioner; THOMAS W. HIL- 
LIER 11, Seattle, Wash. (MICHAEL G. MARTIN, with him on the brief) for 
respondent. 

Nos. 84-776 AND 84-835 

PHILIP S. CARCHEMAN, MERCER COUNTY 
PROSECUTOR, PETITIONER * 

84-776 0A 

RICHARD NASH 

NEW JERSEY DEPARTMENT OF CORRECTIONS,. 
PETITIONER 

84-835 V. 

RICHARD NASH 

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE THIRD CIRCUIT 

Syllabus 

No. 84-776. Argued April 22, 1985—Decided July 2, 1985* 

Article III of the Interstate Agreement on Detainers (Agreement), a con- 

gressionally sanctioned interstate compact, establishes a procedure by 
which a prisoner incarcerated in one State (the sending State) may de- 
mand the speedy disposition of “any untried indictment, information or 

complaint” that is the basis of a detainer lodged against him by another 

State (the receiving State). If the prisoner makes such a demand, Art. 

III requires the authorities in the receiving State to bring him to trial 

within 180 days or the court must dismiss the indictment, information, or 

complaint, and the detainer will cease to be of any force or effect. Re- 

spondent was convicted on criminal charges in New Jersey Superior 

Court, which imposed prison sentences and a 2-year term of probation to 

follow imprisonment. Thereafter, while on probation, respondent was 

charged with criminal offenses in Pennsylvania and was convicted and 

sentenced to prison there. While he was awaiting trial in Pennsylvania, 
the New Jersey authorities notified the New Jersey Superior Court that 

he had violated his probation by committing offenses in Pennsylvania, 

and that court issued an arrest warrant, which was lodged as a detainer 

with the corrections officials in Pennsylvania. Although respondent re- 

quested New Jersey officials to make a final disposition of the probation- 

violation charge, that State failed to bring him to trial within 180 days. 

Respondent then brought a habeas corpus petition in Federal District 

Court seeking dismissal of the probation-violation charge on the basis of 

New Jersey's noncompliance with Art. III. The District Court stayed 

respondent’s federal action pending exhaustion of state court remedies. 

After the New Jersey courts denied respondent relief under the Agree- 

ment, revoked his probation, and resentenced him to a term of imprison- 

ment, the District Court granted respondent’s petition for a writ of ha- 

beas corpus. The Court of Appeals affirmed, holding that an outstand- 

ing probation-violation charge is an “untried indictment, information or 

complaint” within the meaning of Art. III. 

Held: Article III does not apply to detainers based on probation-violation 

charges. 

(a) The language of the Agreement indicates that Art. III applies 

solely to detainers based on outstanding criminal charges. Article III 

by its terms applies to detainers based -on an “indictment,” “informa- 

tion,” or “complaint.” The most natural interpretation of these terms is 

that they refer to documents charging an individual with having commit- 
ted a criminal offense. This interpretation is reinforced by the adjective 

“untried,” by the requirement that the prisoner promptly be “brought to 

trial,” and by the limitation that the receiving State obtains custody 

“only for the purpose of permitting prosecution” on the charges. A pro- 

bation-violation charge does not accuse an individual with having com- 

mitted a criminal offense in the sense of initiating a prosecution. Al- 

=Together with No. 84-835, New Jersey Department of Corrections v. 

Nask, also on certiorari to the same court. 

though such a charge might be based bn the commission of a criminal 
offense, it does not result in the probationer’s being “prosecuted” or 

“brought to trial” for that offense. Nor does it result in the probation- 

er’s being “prosecuted” or “brought to trial” on the offense for which he 

initially was sentenced to probation, since he already will have been tried 

and convicted of that offense. Accordingly, a detainer based on a proba- 

tion-revocation charge does not come within the plain language of the 

Agreement. 

(b) The legislative history created by the Council of State Govern- 

ments, the drafter of the Agreement, does not directly address the issue 

in this case and does not support the inference that the Council intended 

Art. III to apply to detainers based on probation-viclation charges. 

And the congressional history indicates that Congress, which adopted 

the Agreement, considered it to apply oniy to detainers based on untried 

criminal charges. 

(e) The purposes of the Agreement, including the purpose of enabling 

prisoners to obtain prompt disposition of charges underlying detainers in 

order to protect them from the adverse consequences that detainers 

have on their treatment and rehabilitation, do not compel the conclusion 

that, contrary to the Agreement’s plain language, Art. III was intended 

to apply to probaticn-violation detainers. Such purposes are signifi- 

cantly less directly advanced by application of Art. III to probation- 

violation detainers than by its appication to criminal-charge detainers. 

739 F.2d 878, reversed. 

BLACKMUN, J., delivered the opinion of the Court, in which BURGER, 

C.J., and WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. 

BRENNAN, J., filed a dissenting opinion, in which MARSHALL and STE- 
VENS, JJ., joined. 

JUSTICE BLACKMUN delivered the opinion of the Court. 

Article III of the Interstate Agreement on Detainers gives 
a prisoner incarcerated in one State the right to demand the 
speedy disposition of “any untried indictment, information or 
complaint” that is the basis of a detainer lodged against him 
by another State. These cases present the issue whether 
Art. III applies to detainers based on probation-violation 
charges. 

I 

The Interstate Agreement on Detainers (Agreement) is a 
compact among 48 States, the District of Columbia, Puerto 
Rico, the Virgin Islands, and the United States. The Agree- 
ment was drafted in 1956 by the Council of State Govern- 

ments and was adopted in 1958 by the State of New Jersey, 

where it is now codified as N. J. Stat. Ann. §§2A:159A-1 et 
seq. (West 1971). The Agreement is a congressionally sanc- 
tioned interstate compact within the Compact Clause, U. S. 
Const., Art. I, §10, cl. 3, and thus is a federal law subject to 

federal construction. Cuyler v. Adams, 449 U. S. 433, 
438-442 (1981). 

A detainer is a request filed by a criminal justice agency 
with the institution in which a prisoner is incarcerated, ask- 
ing the institution either to hold the prisoner for the agency 
or to notify the agency when release of the prisoner is immi- 
nent. See id., at 436, a. 3 (citing and quoting H. R. Rep. 
No. 91-1018, p. 2 (1970), and S. Rep. No. 91-1356, p. 2 

(1970)); United States v. Mauro, 436 U. S. 340, 359 (197%); 
Moody v. Daggett, 429 U. S. 78, 80-81, n. 2 (1976); Council of 
State Governments, Suggested State Legislation, Program 
for 1957, p. 74 (1956). Detainers generally are based on out- 

standing criminal charges, outstanding parole or probation 
violation charges, or additional sentences already imposed 

against the prisoner. See Dauber, Reforming the Detainer 
System: A Case Study, 7 Crim. L. Bull. 669, 676 (1971). See 

generally L.. Abramson, Criminal Detainers (1979). 
The Agreement is based on a legislative finding tha 

“charges outstanding against a prisoner, detainers based on 
untried indictments, informations or complaints, and difficul- 
ties in securing speedy trial of persons already incarcerated 

 



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U.S. SUPREME COURT REPORTS 49 L Ed 2d 

[427 US 97] 

UNITED STATES, Petitioner, 

v 

LINDA AGURS 

427 US 97, 49 1. Ed 2d 342, 96 S Ct 2392 

[No. 75-491] 

Argued April 28, 1976. Decided June 24, 1976. 

SUMMARY 

Three months after an accused had been convicted of second-degree 
murder in a jury trial in the United States District Court for the District of 
Columbia, defense counsel moved for a new trial. Defense counsel asserted 

that (1) the murder victim had a prior criminal record that would have 
further evidenced the victim’s violent character, thus supporting the defense 
argument that the accused had acted in self-defense, (2) the prosecutor had 
failed to disclose the victim’s record to the defense, and (3) there was recent 
authority that such evidence was admissible even if not known to the 
defendant. The District Court denied the new trial motion, but rejected the 
government's argument that there was no duty to tender the victim’s 
criminal record to the defense in the absence of an appropriate request, 
holding that even if it were assumed that the evidence was admissible, 
nevertheless it was not sufficiently material. The United States Court of 
Appeals for the District of Columbia reversed (167 App DC 28, 510 F2d 
1249). 

On_certiorari, the United States Supreme Court reversed. In an opinion 
by{StEVENS, J) expressing the view of{seven/members of the court, it was 
held that (1) for purposes of an accused’s right to a fair trial under the due 
process clause of the Fifth Amendment for federal criminal trials and under 
the due process clause of the Fourteenth Amendment for state criminal 
trials, a prosecutor had the constitutional duty to volunteer exculpatory 
matter to the defense, which duty was governed by a standard under which 
constitutional error would be committed if evidence omitted by a prosecutor 
created a reasonable doubt about guilt, and (2) in the case at bar, the 
prosecutor’s failure to inform the defense counsel about the victim’s crimi- 
nal record did not deprive the accused of a fair trial under the due process 
clausc of the Fifth Amendment, since (a) the victim’s criminal record had 

Briefs of Counsel, p 1337, infra 

342  



  
4 of second-degree 
t for the District of 
# counsel asserted 
4 that would have 
porting the defense 
the prosecutor had 
ji there was recent 
not known to the 
n, but rejected the 
nder the victim’s 
ppropriate request, 
e was admissible, 
d States Court of 
n» DC 28, 510 Fad 

sed. In an opinion 
[ the court, it was 

rial under the due 
il trials and under 
for state criminal 
inteer exculpatory 
dard under which 
ed by a prosecutor 

. case at bar, the 
the victim’s crimi- 
er the due process 
iminal record had 

UNITED STATES v AGURS 
427 US 97, 49 L Ed 2d 342, 96 S Ct 2392 

not been requested and did not arguably give rise to any inference of 

perjury, (b) the trial judge, after considering the omitted evidence in the 
context of the entire record, had remained convinced of the accused’s guilt 
beyond a reasonable doubt, and (c) the trial judge’s firsthand appraisal of 
the record was thorough and entirely reasonable. 

MARSHALL, J., joined by BRENNAN, dJ., dissented on the ground that the 
accused in the case at bar had the burden of demonstrating only that there 
was a significant chance that the withheld evidence, developed by skilled 

counsel, would have induced a reasonable doubt in the minds of enough 
jurors to avoid a conviction. 

  

HEADNOTES 

Classified to U. S. Supreme Court Digest, Lawyers’ Edition 

Constitutional Law § 840 — due proc- provide defense counsel with information 

ess — fair trial — prosecutor’s regarding the murder victim’s arrest rec- 

disclosure of evidence ord, which information would have 

la, 1b. A prosecutor’s failure, in a tended to support the defense argument 

federal murder trial before a jury, to that the accused acted in self-defense, 

  

TOTAL CLIENT-SERVICE LIBRARY® REFERENCES 

16 Am Jur 2d, Constitutional Law §578; 21 Am Jur 2d, 
Criminal Law § 225; 63 AM Jur 2d, Prosecuting Attorneys 
§ 27 

8 AM Jur PL & Pr Forms (Rev ed), Criminal Procedure, 

Forms 281 et seq. 

7 AM Jur TriaLs 477, Homicide 

USCS, Constitution, 5th and 14 Amendments 

US L Eb Digest, Constitutional Law § 840 

ALR DicEests, Constitutional Law § 669.5 

L Ep INpEx TO ANNOS, District Attorneys; Due Process of 
Law; Fair Tnal 

ALR Quick INDEX, District and Prosecuting Attorneys; Due 

Process of Law; Fair Trial 

FeEpErRAL Quick INDEX, District and Prosecuting Attorneys; 

Fair Trial; United States Attorneys 

ANNOTATION REFERENCES 

Accused’s right to counsel under the Federal Constitution. 93 L.Ed 137, 2 L Ed 

2d 1644, 9 1. Ed 2d 1260, 18 LL Ed 2d 1420. 

Conviction on testimony known to prosecution to be perjured as denial of due 

process 2 LL Ed 2d 1575; 3 L Ed 2d 1991. 

Withholding or suppression of evidence by prosecution in criminal case as 

vitiating conviction. 34 ALR3d 16.     
  

343 

 



t Ee 
5 Vg 

4 } 
Ee ¥i 
Eo . 

i 

’ 3 

  

  

U.S. SUPREME COURT REPORTS 

does not deprive the accused of a fair 
trial as guaranteed by the due process 

clause of the Fifth Amendment, where 
(1) the arrest record had not been re- 

quested by the defense and did not argu- 

ably give rise to any inference of per- 
jury, (2) after considering it in the con- 

text of the entire record, the trial judge 

had remained convinced of the accused’s 
guilt beyond a reasonable doubt, and (3) 
the trial judge’s firsthand appraisal of 
the record was thorough and entirely 

reasonable. 

Criminal Law § 46.4 — representation 

by defense counsel — failure to 
obtain arrest record 

2a, 2b. The failure of defense counsel 

in a murder prosecution to obtain the 

criminal record of the murder victim 

because of his belief that the record was 

"inadmissible does not demonstrate that 

such counsel's representation of the ac- 

cused was ineffective. 

Constitutional Law § 840 — due proc- 

ess — fair trial — prosecutor’s 
disclosure to defense counsel 

3. With respect to an accused’s due 
process right to a fair trial, a prosecutor 

has no duty to provide defense counsel 
with unlimited discovery of everything 
known by the prosecutor, but if the sub- 
ject matter of a defense counsel’s request 

for information from a prosecutor is ma- 
terial, or if a substantial basis for claim- 
ing materiality exists, it is reasonable to 

require the prosecutor to respond either 
by furnishing the information or by sub- 

mitting the problem to the trial judge; 
when the prosecutor receives a specific 
and relevant request, the failure to 

make any response is seldom, if ever, 
excusable. : 

Constitutional Law § 840 — due proc- 
ess — fair trial — duty of prose- 

cutor to disclose 
4. For purposes of an accused’s right to 

a fair trial under the due process clause 
of the Fifth Amendment wit! respect to 
federal trials, and under the due process 
clause of the Fourteenth Amendment 

344 

49 L Ed 2d 

with respect to state trials, a prosecutor 

has a constitutional duty to volunteer 

exculpatory matter to the defense; a 
prosecutor does not violate his constitu- 
tional duty of disclosure unless his omis- 

sion is of sufficient significance to result 
in the denial of the defendant’s right to 
a fair trial. 

Constitutional Law § 840 — due proc- 
ess — prosecutor’s duty to dis- 

close to defense — extent 
5. The United States Constitution does 

not demand that a prosecutor allow com- 

plete discovery of his files to the defense 
as a matter of routine practice in dis- 
charging his constitutional duty of dis- 
closure for purposes of an accused’s due 
process right to a fair trial. 

Constitutional Law § 840 — due proc- 

ess — prosecutor’s duty of disclo- 
sure to defense — materiality 

6. For purposes of a prosecutor’s con- 
stitutional duty to volunteer exculpatory 

matter to the defense in connection with 
an accused’s due process right to a fair 
trial, and the standard of materiality 
which gives rise to that duty, the mere 

possibility that an item of undisclosed 
information might have helped the de- 
fense, or might have affected the out- 
come of the trial, does not establish “ma- 
teriality” in the constitutional sense. 

Constitutional Law § 840 — due proc- 
ess — prosecutor's duty to dis- 

close — willfulness of prosecutor 

7. The constitutional duty of a prose- 
cutor to volunteer exculpatory matter to 

the defense for purposes of the accused’s 
due process right to a fair trial is not 
measured by the moral culpability, or 
the willfulness of the prosecutor; if a 
prosecutor’s nondisclosure of evidence to 

the defense results in constitutional er- 

ror, it is because of the character of the 
evidence, not the character of the prose- 

cutor. 

Constitutional Law § 840 — due proc- 
ess — prosecutor's duty to dis- 
close — request of defense 

8. For purposes of a prosecutor’s con-



   
49 L Ed 2d « 

i a prosecutor 

gy to volunteer” 

the defense; a 
ste his constitu- 
snless his omis- 
fcance to result 

adant’s right to 

{0 — due proc- 
i duty to dis- 

xtent 

nstitution does 
ator allow. com- 

: to the defense 
practice in dis- 

al duty of dis- 
1 accused’s due 

L. 

) — due proc- 

luty of disclo- 

rateriality 
osecutor’s con- 

cer exculpatory 
onnection with 

right to a fair 
of materiality 
duty, the mere 
‘of undisclosed 
helped the de- 
ected the out- 

establish “ma- 
onal sense. 

) — due proc- 

duty to dis- 

of prosecutor 
uty of a prose- 
itory matter to 
f the accused’s 
dr trial 1s not 
culpability, or 

rosecutor; if a 
. of evidence to 
nstitutional er- 

haracter of the 

r of the prose- 

0 — due proc- 
duty to dis- 

lefense 
rosecutor’s con- 

UNITED STATES v AGURS 
427 US 97, 49 L Ed 2d 342, 96 S Ct 2392 

stitutional duty to volunteer exculpatory 
matter to the defense so as to avoid 
denial of the accused’s due process right 

to a fair trial, evidence may be obviously 
of such substantial value to the defense 
that elementary fairness will require it 

to be disclosed even without the defense 
making a specific request. 

District and Prosecuting Attorneys 
§ 3 — duties 

9. Although an attorney for the sover- 
eign must prosecute the accused with 

earnestness and vigor, he must always 

be faithful to his client’s overriding in- 
terest that justice shall be done; such 

attorney is the servant of the law, the 
twofold aim of which is that guilt shall 

not escape nor innocence suffer. 

Constitutional Law § 840 — due proc- 

ess — prosecutor’s duty of disclo- 
sure — burden for constitutional 
error 

10. In determining whether a prosecu- 
tor’s supression of evidence results in 

constitutional error for purposes of a 
prosecutor’s duty to disclose exculpatory 
matter to the defense in connection with 
the accused’s due process right to a fair 
trial, a defendant does not have to sat- 

isfy the severe burden of demonstrating 
that the newly discovered suppressed 
evidence probably would have resulted 
in acquittal. 

New Trial § 10 — prosecutor’s nondis- 

closure to defense — harmless 
error 

11. Every nondisclosure of information 

by a prosecutor to defense counsel can- 
not be treated as though it were error, 

and a judge should not order a new trial 
upon the discovery of the nondisclosure 
every time he is unable to characterize a 

nondisclosure as harmless under the cus- 
tomary harmless error standard. 

Appeal and Error § 1514 — harmless 
error standard ; 

12. Under the harmless error stan- 

dard, when error is present in the rec- 

ord, the reviewing judge must set aside 

the verdict and judgment unless his con- 

viction is sure that the error did not 
influence the jury, or had but only slight 
affect. 

Constitutional Law § 840 — due proc- 

ess — prosecutor’s nondisclosure 
to defense — standard in deter- 

mining error 
13a, 13b. In determining whether a 

prosecutor’s nondisclosure of information 
to the defense is of sufficient significance 

to result in the denial of the defendant’s 

due process right to a fair trial, the 

standard is not one focusing on the im- 

pact of the undisclosed evidence on the 
defendant’s ability to prepare for trial, 
but rather is one reflecting an overriding 
concern with the justice of the finding of 

guilt, and such a finding is permissible 

only if supported by evidence establish- 
ing guilt beyond a reasonable doubt; 

thus, if the omitted evidence creates a 
reasonable doubt that did not otherwise 

exist, constitutional error has been com- 

mitted, and such means that the omis- 
sion must be evaluated in the context of 
the entire record. 

Constitutional Law §831.5 — due 

process — notice 
14a, 14b. The notice component of due 

process refers to the charge rather than 

the evidentiary support for the charge. 

New Trial § 10 — prosecutor’s nondis- 

closure to defense — reasonable 

doubt about guilt 

15. Where a prosecutor does not dis- 

close information to defense counsel and 
the accused is found guilty, if there is no 

reasonable doubt about guilt, whether or 
not the undisclosed additional evidence 

is considered, there is no justification for 

a new trial upon discovery of the nondis- 

closure, but if the verdict is already of 
questionable validity, additional evi- 

dence of relatively minor importance 
might be sufficient to create a reasonable 

doubt. 

345 

 



U.S. SUPREME COURT REPORTS 49 L Ed 2d 

SYLLABUS BY REPORTER OF DECISIONS 

Respondent was convicted of second- 

degree murder for killing one Sewell 

with a knife during a ficht. Evidence at 

the trial disclosed, inter alia, that Se- 

well, just before the killing, had been 

carrying two knives, including the one 

with which respondent stabbed him, that 

he had been repeatedly stabbed, but that 

respondent herself was uninjured. Subse- 
quently, respondent’s counsel moved for 

a new trial, asserting that he had discov- 

ered that Sewell had a prior criminal 

record (including guilty pleas to charges 

of assault and carrying a deadly weapon, 

apparently a knife) that would have 

tended to support the argument that 

respondent acted in self-defense, and 

that the prosecutor had failed to disclose 

this information to the defense. The Dis- 

trict Court denied the motion on the 

ground that the ‘evidence of Sewell’s 

criminal record was not material, be- 

cause it shed no light on his character 

that was not already apparent from the 

uncontradicted evidence, particularly the 

fact that he had been carrying two 

knives, the court stressing the inconsist- 

ency between the self-defense claim and 
the fact that Sewell had been stabbed 

repeatedly while respondent was un- 

scathed. The Court of Appeals reversed, 
holding that the evidence of Sewell’s 

criminal recora was material and that 

its nondisclosure required a new trial 

because the jury might have returned a 

different verdict had the evidence been 

received. feld: The prosecutor’s failure 

to tender Sewell’s criminal record to the 

defense did not deprive respondent of a 

fair trial as guaranteed by the Due Proc- 

ess Clause of the Fifth. Amendment, 

where it appears that the record was not 

requested by defense counsel and gave 

rise to no inference of perjury, that the 

trial judge remained convinced of re- 

spondent’s guilt beyond a reasonable 

doubt after considering the criminal rec- 

ord in the context of the entire record, 

and that the judge’s firsthand appraisal 

of the entire record was thorough and 
entirely reasonable. Mooney v Holohan, 

294 US 103, 79 L Ed 791, 55 S Ct 340, 98 

ALR 406; Brady v Maryland, 373 US 83, 

10 L Ed 2d 215, 83 S Ct 1194, distin- 

guished. 

(a) A prosecutor does not violate the 

constitutional duty of disclosure unless 

his omission is sufficiently significant to 

result in the denial of the defendant’s 

right to a fair trial. 

(b) Whether or not procedural rules 

authorizing discovery of everything that 

might influence a jury might be desira- 

ble, the Constitution does not demand 

such broad discovery; and the mere pos- 
sibility that an item of undisclosed infor- 

mation might have aided the defense, or 

might have affected the outcome of the 

trial, does not establish “materiality” in 

the constitutional sense. 

(c) Nor is the prosecutor's constitu- 

tional duty of disclosure measured by his 

moral culpability or willfulness; if the 

suppression of evidence results in consti- 
tutional error, it is because of the char- 

acter of the evidence, not the character 

of the prosecutor. 

(d) The proper standard of materiality 

of undisclosed evidence, and the stan- 

dard applied by the trial judge in this 

case, is that if the omitted evidence cre- 

ates a reasonable doubt of guilt that did 
not otherwise exist, constitutional error 

has been committed. 
167 US App DC 28, 510 F2d 1249, re- 

versed. 

Stevens, J., delivered the opinion of 

the Court, in which Burger, C. J., and 

Stewart, White, Blackmun, Powell, and 

Rehnquist, JJ., joined. Marshall, J., filed 

a dissenting opinion, in which Brennan, 

J., joined, post, p 114, 49 LL Ed 2d, p 356. 

APPEARANCES OF COUNSEL 

Andrew L. Frey argued the cause for petitioner. 

Edwin J. Bradley argued the cause for respondent. 

Briefs of Counsel, p 1337, infra.  



    

  

   
   

  

   

      

       

  

inal rec- 
aire record, 

ad appraisal 
Borough and 
a v Holohan, 

8 8 Ct 340, 98 

of 373 US 83, 
A 1194, distin- 

Bt violate the 

$dnclosure unless 
Sly significant to 

W the defendant’s 

§ procedural rules 

¥ everything that 
4 wight be desira- 

does not demand 

yad the mere pos- 

{undisclosed infor- 
&d the defense, or 

se outcome of the 

& “materiality” in 

8. 

secutor’s constitu- 
-« measured by his 
willfulness; if the 

» results in consti- 

cause of the char- 

not the character 

ard of materiality 

e, and the stan- 

rial judge in this 

itted evidence cre- 

t of guilt that did 

nstitutional error 

510 ¥2d 1249, re- 

»d the opinion of 
Burger, C. J., and 

‘mun, Powell, and 

Marshall, J., filed 

in which Brennan, 

19 L Ed 2d, p 356. 

UNITED STATES v AGURS 
427 US 97, 49 L Ed 2d 342, 96 S Ct 2392 

OPINION OF THE COURT 

Mr. Justice Stevens delivered the 

opinion of the Court. 

[1a] After a brief interlude in an 

inexpensive motel room, respondent 

repeatedly stabbed James “Sewell, 

causing his death. She was convicted 

of second-degree murder. The ques- 
tion before us is whether the prose- 
cutor’s failure 

[427 US 99] 

to provide defense 
counsel with certain background in- 
formation about Sewell, which would 
have tended to support the argu- 
ment that respondent acted in self- 
defense, deprived her of a fair trial 
under the rule of Brady v Maryland, 
373 US 83. 10 L.Ed 24 215, 83 S Ct 
1194. 

  

The answer to the question de- 
pends on (1) a review of the facts, (2) 
the significance of the failure of de- 
fense counsel to request the mate- 
rial, and (3) the standard by which 
the prosecution’s failure to volunteer 
exculpatory material should be 
judged. 

I 

At about 4:30_p.m. on September 
24, 1971, respondent, who had been 
there before, and Sewell, registered 
in a motel as man and wife. They 
were assigned a room without a 
bath. Sewell was wearing..a..kowie 

knife in a sheath, and carried an- 

other Knife in his-pocket. Less than 
two hours earlier, according to the 

testimony of his estranged wife, he 
had had $360 in cash on his person. 

  

  

  

About 15 minutes later three mo- 
tel employees heard respondent 
screaming for help. A forced entry 
into their room disclosed Sewell on 
top of respondent struggling for pos- 

session of the bowie knife. She was 
holding the knife; his bleeding hand 

grasped the blade; according to one 
witness he was trying to jam the 

blade into her chest. The employees 
separated the two and summoned 
the authorities. Respondent departed 
without comment before they ar- 
rived. Sewell was dead on arrival at 

the hospital. 

Circumstantial evidence indicated 
that the parties had completed an 

act of intercourse, that Sewell had 
then gone to the bathroom down the 
hall, and that the struggle occurred 
upon his return. The contents of his 
pockets were in disarray on the dres- 
ser and no money was found; the, 
jury m SpOR- 
dent took Sewell’s money and_that 
the fight started when Sewell re-en- 

tered the room and saw what she 
was doing. 

  

[427 US 100] 
On the following morning respon- 

dent surrendered to the police. She 
was given a physical examination 

which revealed no cuts or bruises of 
any kind, except needle marks on 
her upper arm. An autopsy of Sewell 

disclosed that he had several deep 
stab wounds in his chest and _ahdo- 
men, and a number of slashes on his 

  

=#fms and hands, characterized by 
the pathologist as ‘‘defensive 

wounds.” 

Respondent offered no evidence. 
Her sole defense was the argument 
made by her attorney that Sewell 
had initially attacked her with the 
knife, and that her actions had all 

been directed toward saving her own 
life. The support for this self-defense 
  

1. The alcohol level in Sewell’s blood was 

slightly below the legal definition of intoxica- 
tion. 

347 

 



U.S. SUPREME COURT REPORTS 

theory was based on the fact that 
she had screamed for help. Sewell 
was on top or her when help arrived, 
and his possession of two knives in- 

dicated that he was a violence-prone 
person.’ It took the jury about 25 
minutes to elect a foreman and re- 

turn a verdict. 

  

Three months later defense coun- 

sel filed a motion for a new trial 
asserting that he had discovered (I) 
that Sewell had a prior criminal 

record that would have further evi- 

denced his violent character; (2) that 
the prosecutor had failed to disclose 
this information to the defense; and 

(3) that a recent opinion of the 
United States Court of Appeals for 
the District of Columbia Circuit 

made it clear that such evidence was 
admissible even if not known to the 
defendants” Sewell’s prior record in- 
cluded a plea of guilty to a charge of 

assault and carrying 
[427 US 101] 

a deadly 

weapon in 1963,Jand another guilty 
plea to a charge of carrying a deadly 
weapon in 1971.) Apparently both 

Weapons were knives. 

49 L Ed 2d 

The Government opposed the mo- 
tion, arguing that there was no duty 
to tender Sewell’s prior record to the 

defense in the absence olf an appro- 
priate request; that the evidence was 
readily discoverable in advance of 
trial and hence was not the kind of 

“newly discovered” evidence justify- 
ing a new trial; and that, in all 

events, it was not material, 

The District Court denied the mo- 
tion. It rejected the Government’s 

argument that there was no duty to 

disclose material evidence unless re- 
quested to do so,* 

[427 US 102] 
assumed that the 

evidence was admissible, but held 
that it was not sufficiently material. 
The District Court expressed the 
opinion that the prior conviction 

shed no light on Sewell’s character 
that was not already apparent from 
the uncontradicted evidence, particu- 
larly the fact that he carried two 
knives; the court stressed the incon- 
sistency between the claim of self- 
defense and the fact that Sewell had 
been stabbed repeatedly while re- 
spondent was unscathed. 
  

2. Moreover, the motel clerk testified that 

Sewell’s wife had said he “would use a knife’; 
however, Mrs. Sewell denied making this 
statement. There was no dispute about the 

fact that Sewell carried the bowie knife when 
he registered. 

3. See United States v Burks, 152 US App 
DC 284, 286, 470 F2d 432, 434 (1972). 

4. "THE COURT: What are you saying? 

How can you request that which you don’t 
know exists. That is the very essence of 

Brady. 

“THE COURT: Are you arguing to the 

Court that the status of the law is that if you 
have a report indicating that fingerprints 
were taken and that the fingerprints on the 
item . .. which the defendant is alleged to 

have assaulted somebody turn out not to be 

the defendant’s, that absent a specific request 

for that information, you do not have any 
obligation to defense counsel? 

348 

  

“MR. CLARKE: No, Your Honor. There is 

another aspect which comes to this, and that 

is whether or not the Government knowingly 

puts on perjured testimony. It has an obliga- 
tion to correct that perjured testimony. 

“THE COURT: I am not talking about per- 

jured testimony. You don’t do anything about 

it. You say nothing about it. You have got the 
report there. You know that possibly it could 

be exculpatory. Defense counsel doesn’t know 
about it. TTe has been misinformed about it. 

Suppose he doesn’t know about it. And be: 

cause he has made no specific request for that 

information, you say that the status of the 
law under Brady is that you have no obliga- 

tion as a prosecutor to open your mouth? 

“MR. CLARKE: No. Your Honor. ... . 

“But as the materiality of the items be- 

comes less to the point where it is not mate- 

rial, there has to be a request, or else the 

Government, just like the defense, is not on 
notice.” App 147-149. 

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UNITED STATES v AGURS 
427 US 97, 49 L Ed 2d 342, 96 S Ct 2392 

  

2a] The Court of Appeals! re- 
Cony The Court found no lack of 
diligence on the part of the defense 
and no misconduct by the prosecutor 
in this case. It held 
the evidence(was) 
its nondis sure ed new 
trial because the jury might have 
returned a different verdict if the 
evidence had been received. 

The decision of the Court of Ap- 
peals represents a significant depar- 
ture from this Court’s prior holding; 
because we believe that that court 
has incorrectly interpreted the con- 
stitutional requirement of due proc- 
ess, we reverse. 
Sm 

  

   

   
     

[427 US 103] 
II 

The rule of Brady v Maryland, 373 

5. [2b] —— US App DC -, 510 F2d 1249 
(1975). The opinion of the Court of Appeals 
disposed of the direct appeal filed after re- 
spondent was sentenced as well as the two 
additional appeals taken from the two orders 
denying motions for new trial. After the de- 
nial of the first motion, respondent’s counsel 
requested leave to withdraw in order to ena- 
ble substitute counsel to file a new motion for 
a new trial on the ground that trial counsels 
representation had been ineffective because 
he did not request Sewell’s criminal record for 
the reason that he incorrectly believed that it 
was inadmissible. The District Court denied 
that motion. Although that action was chal- 
lenged on appeal, the Court of Appeals did 
not find it necessary to pass on the validity of 
that ground. We think it clear, however, that 
counsel’s failure to obtain Sewell’s prior crim- 
inal record does not demonstrate ineffective- 
ness. 

  

  

  

6. Although a majority of the active judges 
of the Circuit, as well as one of the members 
of the panel, expressed doubt about the valid- 
ity of the panel’s decision, the court refused to 
rehear the case en banc. 

7. In Mooney it was alleged that the pe- 
titioner’s conviction ...is based on perjured 
testimony “which was knowingly used by the 
prosecuting authorities in order to obtain that 

  

   ferent situations. Each involves the 
discovery, after trial, of information 
which had been Enown’ to the prose- 
cution but Anknownjto the defense. 

In_the first situation, typified by 
ooney v Holohan, 294 US 103, 79 

LL Ed 791, 55S Ct 340, 98 ALR 406, 
the undisclosed evidence demon- 
strates that the prosecution’s case 
includes perjured testimony and that 
the prosecufi new, or should 
have known, of the perjury.” In a 
series of subsequent cases, the Court 
has consistently held that a convic- 
tion obtained by the knowing use of 
hi testimony is fundamental! 
L , and must be set aside (i) 
there is any reasonable Lay 
that the false testimony could have 

  

  

  

  

  

  

  

conviction, and also that these authorities 
deliberately suppressed evidence which would 
have impeached and refuted the testimony 
thus given against him.” 294 US, at 110, 79 L 
Ed 791, 55 S Ct 340, 98 ALR 406. 

The Court held that such allegations, if 
true, would establish such fundamental un- 
fairness as to justify a collateral attack on 
petitioner’s conviction. : 
“It is a requirement that cannot be deemed to 
be satisfied by mere notice and hearing if a 
State has contrived a conviction through the 
pretense of a trial which in truth is but used 
as a means of depriving a defendant of liberty 
through a deliberate deception of court and 
jury by the presentatien of testimony known 
to be perjured. Such 3 contrivance by a State 
to procure the conviction and imprisonment 
of a defendant is as inconsistent with the 
rudimentary demands of justice as is the 
obtaining of a like result by intimidation.” Id., 
at 112, 79 L Ed 791, 55 S Ct 340, 98 ALR 406. 

8. Pyle v Kansas, 317 US 213, 87 L Ed 214, 
63 S Ct 177; Alcorta v Texas, 355 US 28, 2 L 
Ed 2d 9, 78 S Ct 103; Napue v Illinois, 360 US 
264, 3 L. Ed 2d 1217, 79 S Ct 1173; Miller v 
Pate, 386 US 1, 17 L Ed 2d 690, 87 S Ct 785; 
Giglio v United States, 405 US 150, 31 L Ed 
2d 104, 92 S Ct 763; Donnelly v DeChristoforo, 
416 US 637, 40 L Ed 2d 431, 94 S Ct 1868. 

349 

3 

i) 

Prosecpe sonsn) 
or Should ha 
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2 U.S. SUPREME COURT REPORTS 

affected the judgment of the jury. It 
is this Tine of cases on which the 

[427 US 104] 
Court of Appeals placed primary re- 
liance. In those cases the Court has 
applied a strict standard of material- 
ity, not just because they involve 
prosecutorial misconduct, but more 
importantly because they involve a 
corruption of the truth-seeking func- 
tion of the trial process.{Since) this 
case. involves no miscondWCt, and 
sinég there 1s no reason to question 
the veracity of any of the prosecu- 
tion witnesses, the test of material- 

ity TolTowed in the Mooney line of 
cases 1s not necessarily applicable to 
this case. 

The second situation, illustrated 
by the Brady case itself, is charac- 
terized by a pretrial request for spe- 
cific evidence. In that case defense 
counsel had requested the extrajudi- 
cial statements made by Brady’s ac- 
complice, one Boblit. This Court held 
that the suppression of one of Bob- 
lit’s statements deprived Brady of 
due process, noting specifically that 
the statement had been requested 
and that it was “material.” A fair 
analysis of the holding in Brady in- 
dicates that implicit in the require- 
ment of materiality isa concern that 
the suppressed evidence might have 
affected the outcome of the trial. 

Brady was found guilty of murder 
in the first degree. Since the jury did 
not add the words “without capital 

9. See Giglio, supra, at 154, 31 LI Ed 2d 104, 
92 S Ct 763, quoting from Napue, supra, at 

271,31. Ed 2d 1217, 79 S Ct 1173. 

10. “We now hold that the suppression by 

the prosecution of evidence avoTable to an 
accused upon request vi ates due process 

where the evidence is material either to guilt 
oto punishment, irrespective of “the good 

faith or bad [Aith of the prosecution.” Brady v 

Maryleind, 373 US 83, 87, 10 L. Ed 2d 215, 83 

S Ct 1194. Although in Mooney the Court had 

been primarily concerned with the willful 

49 L Ed 2d 

punishment” to the verdict, he was 
sentenced to death, At his trial 
Brady did not deny his involvement 
in the deliberate killing, but testified 
that it was his accomplice, 

[427 US 105] 

Boblit, 

rather than he, who had actually 
strangled the decedent. This version 
of the event was corroborated by one 
of several confessions made by Boblit 
but not given to Brady’s counsel 
despite an admittedly adequate re- 
quest. 

After his conviction and sentence 
had been affirmed on appeal," Brady 
filed a motion to set aside the judg- 
ment, and later a post-conviction 
proceeding, in which he alleged that 
the State had violated his constitu- 
tional rights by suppressing the Bob- 
lit confession. The trial judge denied 
relief largely because he felt that 
Boblit’s confession would have been 
inadmissible at Brady’s trial. The 
Maryland Court of Appeals disa- 
greed;'? it ordered a new trial on the 
issue of punishment. It held that the 
withholding of material evidence, 

even ‘without guile,” was a denial of 
due process and that there were 
valid theories on which the confes- 
sion might have been admissible in 

Brady’s defense. 

This Court granted certiorari to 
consider Brady’s contention that the 
violation of his constitutional right 
to a fair trial vitiated the entire 

  

misbehavior of the prosecutor, in Brady the 

Court focused on the harm to the defendant 
resulting from nondisclosure. See discussions 

of this development in Note, The Prosecutor’s 

Constitutional Duty to Reveal Evidence to the 

Defendant, 74 Yale 1.J 136 (1964); and Com- 

ment, Brady v Maryland and The Prosecu- 
tor’s Duty to Disclose, 40 U Chi L Rev 112 
(1972). 

11. 220 Md 454, 154 A2d 434 (1959). 

12. 226 Md 422, 174 A2d 167 (1961).  



  

lvement 

testified 

a 
; Boblit, 

wd actually 
{his version 
rated by one 
«Je by Boblit 
v's counsel 
sdequate re- 

nd sentence 

eal," Brady 
le the judg- 
t-conviction 
alleged that 
iis constitu- 
ng the Bob- 
udge denied 
e felt that 
| have been 

trial. The 
peals disa- 
trial on the 
eld that the 
| evidence, 

; a denial of 
there were 
the confes- 
imissible in 

ertiorari to 
ion that the 
tional right 
the entire 

in Brady the 

» the 

See discussions 

he Prosecutor’s 

Jvidence to the 
64); and Com- 

| The Prosecu- 

hi. Rev 112 

(1959) 

(1961). 

defendant 

proceeding.” The holding that the 
suppression of exculpatory evidence 
violated Brady’s right to due process 
was affirmed, as was the separate 

holding that he should receive a new 
trial on the issue off punishment but 

Sa Nad wssilbriot on the issue of guilt” or inno- 
of gulf cence. The Court interpreted the 

Maryland Court 
[427 US 106] 

of Appeals opinion 
as ruling that the confession was 

inadmissible on that issue. For that 
reason, the confession could not 

have affected the outcome on the 

issue of guilt but could have affected 
Brady’s punishment. It was material 

A on the latter issue but not the for- 

| mer. And since it was not material 
4 on the issue of guilt, the entire trial 
| was not lacking in due process. 

The test of materiality in a case 
like Brady in which specific informa- 

tion has been requested by the de- 
fense 1s not necessarily the same as 
in a case in which no such request 
has been made." Indeed, this Court 
has hot yet decided whether the 
prosecutor has any obligation to pro- 
vide defense counsel with exculpa- 
tory information when no request 

has been made. Before addressing 

that question, a brief comment on 
the function of the request is appro- 
priate. 

  

  

  

  

  

  

  

[3] In Brady the request was spe- 
cific. It gave the prosecutor notice of 

éxactly what the defense desired. 
Although there is, of course, no duty 
to provide defense counsel with un- 

  

  

UNITED STATES v AGURS 
427 US 97, 49 L Ed 2d 342, 96 S Ct 2392 

known by the prosecutor, if the sub- 

ject matter of such a request is ma- 
terial, or indeed if a substantial ba- 
sis_for claiming materiality exists, it 

is.reasonable to require the prosecu- 
tor to respond either by furnishing 
the information or by submittin 
problem to the trial judge 

or receives a specific and 
relevant request, the failure to make 

any response is seldom, if ever, ex- 
cusable. 

  

  

  

  

  

  

  

  

    

   

   

    

   

  

  

I ases, however, exculpa- 

tory information in the possession of 
the prosecutor may be unknown to 
defense counsel. Tn such a situation 
he may make no request at all, or 

possibly ask for “all Brady material” 
or for “anything exculpatory.” Such 
a request really gives the prosecutor 
no better notice than if no request is 

--[427.US 107] 

  

  

      

  

mad 

o a general request of that kind, it 

must derive from the obviously ex- 
culpatory character of certain evi- 
dence in the hands of the prosecutor. 

  

  

portive of a claim of innocence that 

it gives the prosecution notice of a 
duty to produce, that duty should 
equally arise even if no request is 
made. Whether we focus on the de- 

sirability of a precise definition of 
the prosecutor’s duty or on the po- 
tential harm to the defendant, we 
conclude that there is ng significant 
difference between cases in which 
there has been merely a general 

request Tor exculpatory matter and 
 — A el . 

cases, like the one we must now 

(por if the evidence 1s so clearly sup- 

  

  

  

  

limited discovery of everything decide, in which there has been no 

13. “The petitioner was denied due process is not saved because other competent evidence 
of law by the State’s suppression of evidence would support it. Culombe v Connecticut, 367 

before his trial begin. The proceeding must US 568, 621, [6 L Ed 2d 1037, 81 S Ct 1860).” 
commence again from the stage at which the 

petitioner was overreached. The denial of due 
process of law vitiated the verdict and the 

sentence. Rogers v Richmond, 365 US 534, 

545, [6 LL Ed 2d 760, 81 S Ct 735]. The verdict 

Brief for Petitioner in Brady v Maryland, No. 
490, OT 1962, p 6. 

14. See 40 U Chi L Rev, supra, n 10, at 115- 

117. 

351 

%) 

If there is a duty to respond yitennidag 

£ gou- 
resguest 

 



  

request at all. The third situation in 
which the Brady rule arguably ap- 
plies, typified by this case, therefore 
embraces the case in which only a 
general request for “Brady material” 

has been made. 

We now consider whether the 
prosecutor has any constitutional 
duty to volunteer exculpatory mat- 
ter to the defense, and if so, what 
standard of materiality gives rise to 

that duty. 

[11 

[4] We are not considering the 
scope of discovery authorized by the 
Federal Rules of Criminal Proce- 
dure, or the wisdom of amending 
those Rules to enlarge the defend- 
ant’s discovery rights. We are deal- 
ing with the defendant’s right to a 
fair trial mandated by the Due Proc- 
ess Clause of the Fifth Amendment 
to the Constitution. Our construction 
of that Clause will apply equally to 
the comparable Clause in the Four- 
teerntir-Armmemndmient applicable to tri- 
alsin state courts. 

The problem arises in two princi- 
pal contexts. First) in_advance of 
trial, and perhaps during the course 
of a trial as well, the prosecutor 

must decide what, if anything, he 
should voluntarily submit to defense 

counsel. 
(427 US 108] 

Secondy after trial a judge   

U.S. SUPREME COURT REPORTS 

may be required to decide whether a 

49 L Ed 2d 

nondisclosure deprived the defend- 
ant of his right to due process. _Logi- 
cally the same standard must apply 
at both times. For unless the omis- 
sion deprived the defendant of a fair 
trial, there was no constitutional 
violation requiring that the verdict 
be set aside; and absent a constitu- 
tional violation, there was no breach 
of the prosecutor’s constitutional 

duty to disciose. 

Nevertheless, there is a significant 

practical difference between the pre- 
trial decision of the prosecutor and 
the post-trial decision of the judge. 

Because we are dealing with an in- 
evitably imprecise standard, and be- 
cause the significance of an item of 
evidence can seldom be predicted 

accurately until the entire record is 
complete, the prudent prosecutor 
will resolve doubtful questions 1n 
favor of disclosure{ Butjto reiterate a 
critical point, the prosecutor will not 
have violated his constitutional duty 
of disclosure unless his omission is of 
sufficient significance to result in the 
denial of the defendant’s right to a 

fair trial. 

The Court of Appeals appears to 
have assumed that the prosecutor 
has a constitutional obligation to 
disclose any information that might 
affect the jury’s verdict. That state- 
ment of a constitutional standard of 
materiality approaches the “sporting 
theory of justice” which the Court 
expressly rejected in Brady.” For a 
    

15. “In the present case a unanimous Court 

of Appeals has said that nothing in the sup- 

pressed confession ‘could have reduced the 

appellant Brady's offense below murder in the 

first degree.’ We read that st .ement as a 

ruling on the admissibility of the confession 

on the issue of innocence or guilt. A sporting 

theory of justice might assume that if the 
suppressed confession had been used at the 

"first trial, the judge's ruling that it was not 

admissible on the issue of innocence or guilt 

might have been flouted by the jury just as 

352 

  

  

might have been done if the court had first 

admitted a confession and then stricken it 

from the record. But we cannot raise that 

trial strategy to the dignity of a constitutional 

right and say that the deprival of this defend- 

ant of that sporting chance through the use of 

a bifurcated trial (cf. Williams v New York, 

337 US 241, {93 1 Ed 1337, 69 S Ct 1079) 

denies him due process or violates the Equal 

Protection Clause of the Fourteenth Amend- 

ment.” 373 US, at 90-91, 10 L Ed 2d 215, 83 S 

Ct 1194 (footnote omitted). 

      

      



    iadant of a fair 
/ gnstitutional 
& the verdict 
i a constitu- 
as no breach 
wnstitutional 

s a significant 
‘ween the pre- 

rusecutor and 

of the judge. 
.g with an In- 
1dard, and be- 
of an item of 
be predicted 

1tire record is 
nt prosecutor 
questions 1n 

to reiterate a 

cutor will not 
“tutional duty 
omission’ is of 

o result in the 
1t’s right to a 

ls appears to 
he prosecutor 

obligation to 
on that might 
t. That state- 
al standard of 

; the “sporting 

ich the Court 
Brady, 5 For a 

  

he court had first 

then stricken ‘it 

annot raise that 

of a constitutional 

val of this defend- 

through the use of 

ams v New York, 

37.698 Ct 1079) 

violates the Equal 
‘ourteenth Amend- 

VI. Ed 2d 215,83 S 

UNITED STATES v AGURS 
427 US 97, 49 L Ed 2d 342, 96 S Ct 2392 

jury’s 
[427 US 109] 

appraisal of a case “might” be 
affected by an improper or trivial 

consideration as well as by evidence 
giving rise to a dots doubt on 

    

ed, the ou way a Rie 
could “discharge his constitutional 
duty would be to allow complete 

discovery of his files as a matter of 
routine practice. 

  

  

  

[5, 6] Whether or not procedural 

  

on a case.” Moore v Illinois, 408 US 
786, 795, 33 L Ed 2d 706, 92 S Ct 
  

      

    

   
    

  

2562.'{ The mere possibility that an 
item of undisclosed information 

[427 US 110] 
might have helped the 

defense, or might have affected the 
outcome of the trial, does not estab- 
lish “materiality” in the constit 
ional sense, smn” 
  

      

   
[7] Nor do we believe the constitu- 

tional obligation is measured by the 
moral culpability, or the willfulness, 

  

of the prosecutor.” \If evidence 
  

rules authorizing such broad discov- 
ery might be desirable, the Constitu- 
tion surely does not demand that 
much. While expressing the opinion 

that representatives of the State 
may not “suppress substantial mate- 

rial evidence,” former Chief Justice 

Traynor of the California Supreme 
Court has pointed out that “they are 
under no duty to report sua sponte 
to the defendant all that they learn 
about the case and about their wit- 
nesses.” In re Imbler, 60 Cal 2d 554, 
569, 387 P2d 6, 14 (1963). And this 
Court recently noted that there is 
“no constitutional requirement that 

the prosecution make a complete 
and detailed accounting to the de- 
fense of all police investigatory work 

highly probative of innocence is in 
his file, he should be presumed to 
recognize its significance even if he 
has actually overlooked it. Cf. Giglio 
v United States, 405 US 150, 154, 31   
versely, if evidence actually has no 
probative significance at all, no pur- 
pose would be served by requiring a 
new trial simply because an inept 
prosecutor incorrectly believed he 
was suppressing a fact that would be 
vital to the defense. If the suppres- 
sion of evidence results in constitu- 
tional error, it is because of the 
character of the evidence, not the 
character of the prosecutor. 

[8, 9] As the District Court recog- 
nized in this case, there are situa- 

  

16. In his opinion concurring in the judg- 

ment in Giles v Maryland, 386 US 66, 98, 17 

LL. Ed 2d 737, 87 S Ct 793, Mr. Justice Fortas 

stated: 

“This is not to say that convictions ought to 

be reversed on the ground that information 

merely repetitious, cumulative, or embellish- 
ing of facts otherwise known to the defense or 

presented to the court, or without importance 

to the defense for purposes of the preparation 

of the case or for trial was not disclosed to 

defense counsel. It is not to say that the State 

has an obligation to communicate prelimi- 

nary, challenged, * ' speculative information.” 

17. In Brady this Court, as had the Mary- 

land Court of Appeals, expressly rejected the 

good faith or the bad faith of the prosecutor 

as the controlling consideration: “We now 

hold that the suppression by the prosecution 

of evidence favorable to an accused upon 
request violates due process where the evi- 

dence is material either to guilt or to punish- 

ment, Irrespective of the good faith or bad 

faith of the prosecution. The principle of Moo- 

ney v Holohan is not punishment of society 

for misdeeds of a prosecutor but avoidance of 

an unfair trial to the accused.” 373 US, at 87, 

10 1, Ed 2d 215, 83 S Ct 1194. (Emphasis 
added.) If the nature of the prosecutor’s con- 

duct is not controlling in a case like Brady, 
surely it should not be controlling when the 

prosecutor has not received a specific request 
for information. 

353 

px 
LL Ed 2d 104, 92 S Ct 763.rCon- 

 



U.S. SUPREME COURT REPORTS 

tions in which evidence is obviously 
of such substantial value to the de- 
fense that elementary fairness re- 
quires it to be disclosed even without 
a specific request." For though the 
attorney for the sovereign must 
prosecute the accused with earnest- 
ness and vigor, he 

[427 US 111] 
must always be 

faithful to his client’s overriding in- 
terest that “justice shall be done.” 
He is the “servant of the law, the 

twofold aim of which is that guilt 
shall not escape or innocence 
suffer.” Berger v United States, 295 
US 78, 88, 79 L. Ed 1314, 55 8 Ct 
629. This description of the prosecu- 
tor’s duty illuminates the standard 
of materiality that governs his obli- 
gation to disclose exculpatory evi- 
dence. 

[10] On the one hand, the fact that 
such evidence was available to the 
prosecutor and not submitted to the 
defense places it in a different cate- 
gory than if it had simply been dis- 
covered from a neutral source after 
trial. For that reason the defendant 
should not have to satisfy the severe 
burden of demonstrating that newly 
discovered evidence probably would 
have resulted in acquittal.’ If the 
standard applied to the usual motion 
for a new trial based on newly dis- 
covered evidence were the same 
when the evidence was in the State’s 

49 L Ed 2d 

possession as when it was found in a 
neutral source, there would be no 
special significance to the prosecu- 
tor’s obligation to serve the cause of 
justice. 

[11, 12] On the other hand, since 
we have rejected the suggestion that 
the prosecutor has a constitutional 
duty routinely to deliver his entire 
file to defense counsel, we cannot 
consistently treat every nondisclo- 
sure as though it were error, It nec- 
essarily follows that Jjthe judge 
should not order a new trial every 
time he is unable to 

[427 US 112] 

characterize a 
nondisclosure as harmless under the 
customary harmless-error standard. 
Under that standard when error is 
present in the record, the reviewing 
judge must set aside the verdict and 
judgment unless his “conviction is 
sure that the error did not influence 
the jury, or had but very slight ef- 
fect.” Kotteakos v United States, 328 
US 750, 764, 90 L Ed 1557, 66 S Ct 
1239. Unless every nondisclosure is 
regarded as automatic error, the 
constitutional standard of material- 
ity must impose a higher burden on 
the defendant. 

[13a, 14a, 15] The proper standard 
of materiality must reflect our over- 
riding concern with the justice of the 
finding of guilt. Such a finding 1s 

  

18. The hypothetical example given by the 
District Judge in this case was fingerprint 
evidence demonstrating that the defendant 
could not have fired the fatal shot. 

19. This is the standard generally applied 

by lower courts in evaluating motions for new, 
trial under Fed Rule Crim Proc 33 based on 

newly discovered evidence. See, e.g., Ashe v 

United States, 288 F2d 725,733 (CA6 1961); 
United States v Thompson, 493 F2d 305, 310 
(CA9 1974), cert denied, 419 US 834, 42 L. Ed 
2d 60, 95 S Ct 60; United States v Houle, 490 

F2d 167, 171 (CA2 1973), cert denied, 417 US 
970, 41 1. Fd 2d 1141, 94 S Ct 3174: United 

States v Meyers, 484 F2d 113, 116 (CA3 1973); 

Heald v United States, 175 F2d 878, 883 

(CA10 1949). See also 2 C. Wright, Federal 
Practice and Procedure § 557 (1969). 

20. [13b, 14b] It has been argued that the 
standard should focus on the impact of the 

undisclosed evidence on the defendant’s abil- 
ity to prepare for trial, rather than the mate- 
riality of the evidence to the issue of guilt or 
innocence. See Note, The Prosecutor’s Consti- 
tutional Duty to Reveal Evidence to the De- 

fense, 74 Yale LJ 136 (1964). Such a standard 

would be unacceptable for determining the 

materiality of what has been generally recog- 
nized as “Brady material” for two reasons.  



   
| ghe prosecu- 

be the cause of 

hand, since 
westion that 

ponstitutional 
fiver his entire 
gal, we cannot 
gwery nondisclo- 
wee error. It nec- 
$at the judge 
pew trial every 

[14] 

characterize a 
rmless under the 
+error standard. 
4 when error is 
4. the reviewing 

. the verdict and 

5 "conviction is 
{id not influence 

t very slight ef- 
ited States, 328 
d 1557, 66 S Ct 
nondisclosure is 
atic error, the 
ard of material- 
igher burden on 

proper standard 
reflect our over- 
the justice of the 
ach a finding is 
  

175 F2d 878, 883 
C. Wright, Federal 

557 (1969). 

een argued that the 

n the impact of the 
the defendant’s abil- 

ther than the mate- 

the issue of guilt or 
Prosecutor’s Consti- 

Evidence to the De- 

64). Such a standard 

for determining the 

heen generally recog- 
al” for two reasons. 

      

   
    

  

UNITED STATES v AGURS 
427 US 97, 49 L Ed 2d 342, 96 S Ct 2392 

permissible only if supported by evi- 
dence establishing guilt beyond a 
reasonable doubt. It necessarily fol- 
lows thatf if the omitted evidence 
creates a reasonable doubt that did 
not otherwise exist, constitutional 
error has been committed. r“This 
means that the omission must be 
evaluated in the context of the en- 
tire record.?” If there is no reasona- 
ble doubt about 

[427 US 113] 

guilt whether or not 
the additional evidence is consid- 
ered, there is no justification for a 
new trial. On the other hand, if the 
verdict is already of questionable 
validity, additional evidence of rela- 

tively minor importance might be 
sufficient to create a reasonable 
doubt. 

This statement of the standard of 
materiality describes the test which 
courts appear to have applied in 
actual cases although the standard 
has been phrased in different lan- 
guage.” It is also the standard which 
the trial judge applied in this case. 

He evaluated the significance of Se- 
well’s prior criminal record in the 
context of the full trial which he 
recalled 1n detail. Stressing in par- 
ticular the incongruity of a claim 

that Sewell was the aggressor with 

the evidence of his multiple wounds 
and respondent’s unscathed condi- 
tion, the trial judge indicated his 
unqualified opinion that respondent 

was guilty. He 
[427 US 114) 

noted that Sewell’s 
prior record| did not contradict; any 

evidence offered by the prosecutor, 
and was {largely cumulative of the 
evidence that=Sewell"was wearing a 
bowie knife in a sheath and carrying 

a second knife in his pocket when he 
registered at the motel. 

[1b] Since the arrest record was 

not requested and did not even argu- 
ably give rise to any inference of 
perjury, since after considering it in 
the context of the entire record the 
trial judge remained convinced of 
respondent’s guilt beyond a reasona- 

  

First, that standard would necessarily encom- 
pass incriminating evidence as well as excul- 
patory evidence, since knowledge of the prose- 
cutor’s entire case would always be useful in 
planning the defense. Second, such an ap- 

proach would primarily involve an analysis of 

the adequacy of the notice given to the de- 
fendant by the State, and it has always been 

the Court’s view that the notice component of 

due process refers to the charge rather than 

the evidentiary support for the charge. 

21. "If, for example, one of only two 

eyewitnesses to a crime had told the prosecu- 

tor that the defendant was definitely not its 

perpetrator and if this statement was not 

disclosed to the defense, no court would hesi- 

tate to reverse a conviction resting on the 

testimony of the other eyewitness. | But if 

there were fifty eyewitnesses, forty-nine of 

whom identified the defendant, and the prose- 
cutor neglected to reveal that the other, who 
was without his badly needed glasses on the 

misty evening of the crime, had said that the 
criminal looked something like the defendant 

but he could not be sure as he had only had a 

brief glimpse, the result might well be differ- 

ent.” 40 U Chi L Rev, supra, n 10, at 125. 

22. See, e.g., Stout v Cupp, 426 F2d 881, 

882-883 (CA9 1970); Peterson v United States, 

411 F2d 1074, 1079 (CA8 1969); Lessard v 

Dickson, 394 F2d 88, 90-92 (CA9 1968), cert 

denied, 393 US 1004, 21 L. Ed 2d 469, 89 S Ct 

494; United States v Tomaiolo, 378 F2d 26, 28 

(CA2 1967). One commentator has identified 

three different standards this way: 

“As discussed previously, in earlier cases 

the following standards for determining mate- 

riality for disclosure purposes were enunci- 

ated: (1) evidence which may be merely help- 

ful to the defense; (2) evidence which raised a 

reasonable doubt as to defendant’s guilt; (3) 

evidence which is of such a character as to 

create a substantial likelihood of reversal.” 

Comment, Materiality and Defense Requests: 
Aids in Defining the Prosecutor’s Duty of 

Disclosure, 59 Iowa L Rev 433, 445 (1973). See 
also Note, The Duty of the Prosecutor to 
Disclose Exculpatory Evidence, 60 Col L Rev 
858 (1960). 

3565 

 



  

U.S. SUPREME COURT REPORTS 49 L Ed 2d 

ble doubt, and since we are satisfied 
that his firsthand appraisal of the 
record was thorough and entirely 
reasonable, we hold that the prose- 
cutor’s failure to tender Sewell’s rec- 
ord to the defense did not deprive 

SEPARATE 

Mr. Justice Marshall, with whom 
Mr. Justice Brennan joins, dissent- 

ing. 

The Court today holds that the 

prosecutor’s constitutional duty to 
provide exculpatory evidence to the 
defense is not limited to cases in 
which the defense makes a requesi 

for such evidence. But once having 
. recognized the existence of a duty to 

volunteer exculpatory evidence, the 

Court so narrowly defines the cate- 
gory of “material” evidence em- 
braced by the duty as to deprive it of 
all meaningful content. 

In considering the appropriate 
standard of materiality governing 
the prosecutor’s obligation to volun- 

teer exculpatory evidence, the Court 
observes: 

“[T]he fact that such evidence was 

available to the prosecutor and 
not submitted to the defense 

places it in a different category 
than if it had simply been 

[427 US 115] 
discov- 

ered from a neutral source after 
trial. For that reason the defend- 
ant should not have to satisfy the 
severe burden of demonstrating 
that newly discovered evidence 

probably would have resulted in 

acquittal [the standard generally 
applied to a motion under Fed 

respondent of a fair trial as guaran- 

teed by the Due Process Clause of 

the Fifth Amendment. Accordingly, 

the judgment of the Court of Ap- 

peals is reversed. 

OPINION 

Rule Crim Proc 33 based on newly 

discovered evidence!]. If the stan- 
dard applied to the usual motion 
for a new trial based on newly 

discovered evidence were the same 

when the evidence was in the 

State’s possession as when it was 

found in a neutral source, there 

would be no special significance to 

the prosecutor’s obligation to serve 

the cause of justice.” Ante, at 111, 

49 L Ed 2d 354 (footnote omitted). 

I agree completely. 

The Court, however, seemingly 
forgets these precautionary words 

when it comes time to state the 

proper standard of materiality to be 

applied in cases involving neither 
the knowing use of perjury nor a 
specific defense request for an item 

of information. In such cases, the 

prosecutor commits constitutional 

error, the Court holds, “if the omit- 

ted “evidence creates a reasonable 

doubt that did not otherwise exist.” 

Ante, at 112, 49 L Ed 2d 355. As the 
Court’s subsequent discussion makes 

clear, the defendant challenging the 

prosecutor’s failure to disclose evi- 
dence is entitled to relief, in the 

Court’s view, only if the withheld 

evidence actually creates a reasona- 

ble doubt as to guilt in the judge’s 

mind. The burden thus imposed on 

the defendant is at least as “severe” 
  

1. The burden generally imposed upon such 
a motion has also been described as a burden 
of demonstrating that the newly discovered 

evidence would probably produce a different 

verdict in the event of a retrial. See, e.g. 

356 

United States v Kahn, 472 F2d 272, 287 (CA2 

1973); United States v Rodriguez, 437 F2d 

940), 942 (CAS 1971); United States v Curran, 

465 12d 260, 264 (CAT 1972). 

as, 

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    # guaran- 

4 Clause of 

Axordingly, 
%art of Ap- 

«d on newly 

If the stan- 
sual motion 
{ on newly 

re the same 
vas in the 

vhen it was 

urce, there 

nificance to 
‘ion to serve 
inte, at 11]; 

e omitted). 

seemingly 

nary words 
y state the 

riality to be 
ing neither 
rjury nor a 
for an item 

1 cases, the 

nstitutional 

‘if the omit- 

reasonable 

‘wise exist.” 

355. As the 

ssion makes 
llenging the 

disclose evi- 
lief, in the 

he withheld 

$s a reasona- 

. the judge’s 
imposed on 
as “severe” 

i 272. 287 (CA2 

iguez, 437 F2d 

tates v Curran, 

UNITED STATES v AGURS 
427 US 97, 49 L Ed 2d 342, 96 S Ct 2392 

as, if not more 
[427 US 116] 

“severe” than,’ the 
burden he generally faces on a Rule 
33 motion. Surely if a judge is able 
to say that evidence actually creates 
a reasonable doubt as to guilt in his 
mind (the Court’s standard), he 
would also conclude that the evi- 

dence “probably would have resulted 
in acquittal” (the general Rule 33 
standard). In short, in spite of its 
own salutary precaution, the Court 

treats the case in which the prosecu- 
tor withholds evidence no differently 
from the case in which evidence is 
newly discovered from a neutral 
source. The “prosecutor’s obligation 
to serve the cause of justice” is re- 
duced to a status, to borrow the 

Court’s words, of “no special signifi- 
cance.” Ante, at 111, 49 L. Ed 2d 354. 

Our overriding concern in cases 
such as the one before us is the 
defendant’s right to a fair trial. One 
of the most basic elements of fair- 

ness in a criminal trial is that avail- 
able evidence tending to show inpo- 
cence, as well as that tending to 
show guilt, be fully aired before the 
jury; more particularly, it is that the 
State in its zeal to convict a defend- 
ant not suppress evidence that 
might exonerate him. See Moore v 
Illinois, 408 US 786, 810, 33 L. Ed 2d 
706, 92 S Ct 2562 (1972) (opinion of 
Marshall, J.). This fundamental no- 
tion of fairness does not pose any 
irreconcilable conflict for the prose- 

cutor, for as the Court reminds us, 
the prosecutor “must always be 
faithful to his client’s overriding in- 

    

  

  

    

  

by the suppression of evidence favor- 
able to the defendant. On the con- 
trary, the prosecutor fulfills his most 
basic responsibility when he fully 
airs all the relevant evidence at his 
command. 

I recognize, of course, that the 
exculpatory value to the defense of 
an item of information will often not 
be apparent to the prosecutor in 
advance of trial. And 

[427 US 117] 

while the gen- 
eral obligation to disclose exculpa- 
tory information no doubt continues 
during the trial, giving rise to a duty 
to disclose information whose signifi- 
cance becomes apparent as the case 
progresses, even a conscientious 
prosecutor will fail to appreciate the 

significance of some items of infor- 
mation. See United States v Keogh, 
391 F2d 138, 147 (CA2 1968). I agree 
with the Court that these considera- 
tions, as well as the general interest 

in finality of judgments, preclude the 
granting of a new trial in every case 
in which the prosecutor has failed to 
disclose evidence of some value to 
the defense. But surely these consid- 
erations do not require the rigid rule 
the Court intends to be applied to all 
but a relatively small number of 
such cases. 

Under today’s ruling; if the prose- 
cution has not made knowing use of 

erjury, fand ifthe defense has not’ 
made a specific request for an item) 
of information,,the defendant is enti-' 

  
    

  

  

  

  

  

  

tled to a new trial only if the with- | 
3 held evidence actually creates a rea- | 

| sonable doubt as to guilt in the, 
  

terest ‘that justice shall be done.” | judge’s mind. [With all respect, this 
Ante, at 111, 49 1. Bd 2d 354. No 
interest of the “ate is served, and 

no duty of the prosecutor advanced, 

  

rule 1s completely at odds with the 
overriding interest in assuring that 
evidence tending to show innocence 

  

. 2. See United States v Keogh, 391 F2d 138, 
148 (CA2 1968), in which Judge Friendly im- 

plies that the standard the Court adopts is 

more severe than the standard the Court 

rejects. 

357 

 



  

  

U.S. SUPREME COURT REPORTS 49 L Ed 2d 

is brought to the jury’s attention. 
The rule creates little, if any, incen- 
tive for the prosecutor conscien- 
tiously to determine whether his 
files contain evidence helpful to the 
defense. Indeed, the rule reinforces 
the natural tendency of the prosecu- 
tor to overlook evidence favorable to 
the defense, and creates an incentive 
for the prosecutor to resolve close 
questions of disclosure in favor of 

concealment. 

More fundamentally, the Court’s 
rule usurps the function of the jury 
as the trier of fact in a criminal 
case. The Court’s rule explicitly es- 
tablishes the judge as the trier of 
fact with respect to evidence with- 
held by the prosecution. The defend- 
ant’s fate is sealed so long as the 
evidence does not create a reasona- 
ble doubt as to guilt in the judge’s 
mind, regardless of whether the 

(427 US 118] 
evi- 

dence is such that reasonable men 
could disagree as to its import—re- 
gardless, in other words, of how 
“close” the case may be.? 

The Court asserts that this harsh 

standard of materiality is the stan- 
dard that “courts appear to have 
applied in actual cases although the 
standard has been phrased in differ- 
ent language.” Ante, at 113, 49 L Ed 
2d 355 (footnote omitted). There is 
no basis for this assertion. None of 
the cases cited by the Court in sup- 
port of its statement suggests that a 
judgment of conviction should be 
sustained so long as the judge re- 
mains convinced beyond a reasona- 
ble doubt of the defendant’s guilt.! 

The prevailing 
[427 US 119] 

view in the federal 
courts of the standard of materiality 
for cases involving neither a specific 
request for information nor other 
indications of deliberate misconduct 
—a standard with which the cases 
cited by the Court are fully consist- 
ent—is quite different. It is essen- 
tially the following: If there is a 
significant chance that the withheld 
evidence, developed by skilled coun- 
sel, would have induced a reasonable 
doubt in the minds of enough jurors 
to avoid a conviction, then the judg- 
ment of conviction must be set 
aside.’ This standard, unlike the 

  

3. To emphasize the harshness of the 

Court's rule, the defendant's fate is deter- 

mined finally by the judge only if the judge 

does not entertain a reasonable doubt as to 
guilt. If evidence withheld by the prosecution 

does create a reasonable doubt as to guilt in 
the judge's mind, that does not end the case— 
rather, the defendant (one might more accu- 

rately say the prosecution) is “entitled” to 

have the case decided by a jury. 

4. In Stout v Cupp, 426 F2d 881 (CA9 1970), 
a habeas proceeding, the court simply quoted 

the District Court’s finding that if the sup- 

pressed evidence had been introduced, “the 

jury would not have reached a different re- 
sult.” Id., at 883. There is no i~dication that 
the quoted language was intended as any- 
thing more than a finding of fact, which 
would, quite obviously, dispose of the defend- 

ant’s claim under any standard that might be 

suggested. In Peterson v United States, 411 

F2d 1074 (CA8 1969), the court appeared to 

require a showing that the withheld evidence 

358 

“was ‘material’ and would have aided the 

defense.” Id., at 1079. The court in Lessard v 

Dickson, 394 F2d 88 (CA9 1968), found it 

determinative that the withheld evidence 

“could hardly be regarded as being able to 

have much force against the inexorable array 

of incriminating circumstances with which 

[the defendant] was surrounded.” Id., at 91. 

The jury, the court noted, would not have 

been “likely to have had any [difficulty]” with 

the argument defense counsel would have 

made with the withheld evidence. Id., at 92. 

Finally, United States v Tomaiolo, 378 F2d 26 

"(CA2 1967), required the defendant to show 
that the evidence was “material and of some 

substantial use to the defendant.” Id., at 28. 

5. See, e.g., United States v Morell, 524 F2d 

550, 553 (CA2 1975); Ogden v Wolff, 522 F2d 

816, 822 (CA8 1975); Woodcock v Amaral, 511 

F2d 985, 991 (CA1 1974); United States v 

Miller, 499 F2d 736, 744 (CA10 1974); Shuler 

v Wainwright, 491 F2d 1213, 1223 (CA5 1974); 

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UNITED STATES v AGURS 
427 US 97, 49 L Ed 2d 342, 96 S Ct 2392 

Court’s, reflects a recognition that 
the determination must be in terms 
of the impact of an item of evidence 
on the jury, and that this determina- 
tion cannot always be made with 
certainty.® 

[427 US 120] 

The Court approves—but only for 
a limited category of cases—a stan- 
dard virtually identical to the one I 
have described as reflecting the pre- 
vailing view. In cases in which “the 

undisclosed evidence demonstrates 
that the prosecution’s case includes 
perjured testimony and that the 
prosecution knew, or should have 
known, of the perjury,” ante, at 103, 
49 L Ed 2d 349, the judgment of 
conviction must be set aside “if 
there is any reasonable likelihood 
that the false testimony could have 
affected the judgment of the jury.” 
Ibid. This lesser burden on the de- 
fendant 1s appropriate, the Court 

~ states, primarily because the with- 
holding of evidence contradicting 
testimony offered by witnesses called 
by the prosecution “involve[s] a cor- 
ruption of the truth-seeking function 
of the trial process.” Ante, at 104, 49 
L Ed 2d 350. But surcly the truth- 
seeking process 1s corrupted by the 
withholding of evidence favorable to 

the defense, regardless of whether 
the evidence is directly contradictory 
to evidence offered by the prosecu- 
tion. An example offered by Mr. Jus- 
tice Fortas serves to illustrate the 
point. “[Llet us assume that the 

State possesses information that 
blood was found on the victim, and 
that this blood is of a type which 
does not match that of the accused 
or of the victim. Let us assume that 
no related testimony was offered by 
the State.” Giles v Maryland, 386 
US 66, 100, 17 1. E4 24 737, 87.5 Ct 
793 (1967) (concurring in judgment). 
The suppression of the information 
unquestionably corrupts the truth- 
seeking process, and the burden on 
the defendant in establishing his en- 
titlement to a new trial ought be no 
different from the burden he would 
face if related testimony had been 
elicited by the prosecution. See id., 
at 99-101, 17 L. Ed 2d 737, 87 S Ct 
793. 

The Court derives its “reasonable 
likelihood” standard for cases involv- 
ing perjury from cases such as Na- 
pue v 

[427 US 121] 

Illinois, 360 US 264, 3 LL Ed 2d 
1217, 79 S Ct 1173 (1959), and Giglio 
v United States, 405 US 150, 31 L 

  

United States v Kahn, 472 F2d, at 287; Clarke 

v Burke, 440 F2d 853, 855 (CA7 1971); Hamric 

v Bailey, 386 F2d 390, 393 (CA4 1967). 

6. That there is a significant difference 

between the Court’s standards and what has 

been described as the prevailing view is made 

clear by Judge Friendly, writing for the court 

in United States v Miller, 411 F2d 825 (CA2 

1969). After stating the court’s conclusion 

that a new trial was required because of the 

Government's failure to disclose to the de- 

fense the pretrial hypnosis of . . principal 
witness, Judge Friendly observed: 

“We have reached this conclusion with 

some reluctance, particularly in light of the 

considered belief of the able and conscientious 

district judge, who has lived with this case for 

years, that review of the record in light of all 

the defense new trial motions left him ‘con- 
vinced of the correctness of the jury’s verdict.’ 
We, who also have had no small exposure to 

the facts, are by no means convinced other- 
wise. The test, however, is not how the newly 

discovered evidence concerning the hypnosis 
would affect the trial judge or ourselves but 

whether, with the Government’s case against 

[the defendant] already subject to serious at- 

tack, there was a significant chance that this 

added item, developed by skilled counsel as it 
would have been, could have induced a rea- 

sonable doubt in the minds of enough jurors 
to avoid a conviction. We cannot conscien- 
tiously say there was not.” Id., at 832 (foot- 

note omitted). 

    

   
   
   

    
   
    

    

   

  

    
     

     

  

     

    

    

  

   
   
    

   

    

   
   
    

    
    

  

    

    
   
    
   

    



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U.S. SUPREME COURT REPORTS 

Ed 2d 104, 92 S Ct 763 (1972). But 

surely the results in those cases, and 
the standards applied, would have 

been no different if perjury had not 
been involved. In Napue and Giglio, 
co-conspirators testifying against the 

defendants testified falsely, in re- 
sponse to questioning by defense 
counsel, that they had not received 
promises from the prosecution. The 
prosecution failed to disclose that 
promises had in fact been made. The 

corruption of the truth-seeking proc- 
ess stemmed from the suppression of 
evidence affecting the overall credi- 
bility of the witnesses, see Napue, 

supra, at 269, 3 L Ed 2d 1217, 79 S 
Ct 1173; Giglio, supra, at 154, 31 L 
Ed 2d 104, 92 S Ct 763, and that 

corruption would have been present 

whether or not defense counsel had 
elicited statements from the wit- 
nesses denying that promises had 

been made. 

It may be that, contrary to the 
Court's insistence, its treatment of 

perjury cases reflects simply a desire 

to deter deliberate prosecutorial Tits: 
conduct. But if that were the case, 
we might reasonably expect a rule 

imposing a lower threshold of mate- 
riality than the Court imposes—per- 

49 L Ed 2d 

haps a harmless-error standard. And 
we would certainly expect the rule 
to apply to a broader category of 
misconduct than the failure to dis- 
close evidence that contradicts testi- 
mony offered by witnesses called by 
the prosecution. For the prosecutor 
is guilty of misconduct when he de- 
liberately suppresses evidence that 
is clearly relevant and favorable to 
the defense, regardless, once again, 
of whether the evidence relates di- 
rectly to testimony given in the 
course of the Government’s case. 

This case, however, does not in- 
volve deliberate prosecutorial mis- 
conduct. Leaving open the question 
whether a different rule might ap- 
propriately be applied in cases in- 
volving deliberate misconduct,” I 

would hold that the 
[427 US 122] 

defendant in 

this case had the burden of demon- 
strating that there is a significant 
chance that the withheld evidence, 

developed by skilled counsel, would 
have induced a reasonable doubt in 
the minds of enough jurors to avoid 
a conviction. This is essentially the 
standard applied by the Court of 
Appeals, and I would affirm its judg- 

ment. 
  

7. It is the presence of deliberate prosecuto- 

rial misconduct and a desire to deter such 

misconduct, presumably, that leads the Court 

to recognize a rule more readily permitting 

new trials in cases involving a specific defense 

request for information. The significance of 

the defense request, the Court states, is sim- 

ply that it gives the prosecutor notice of what 

is important to the defense; once such notice 

is received, the failure to disclose is “seldom, 

if ever, excusable.” Ante, at 106, 49 L Ed 2d 

351. It would seem to follow that if an item of 

information is of such obvious importance to 

the defense that it could not have escaped the 

prosecutor’s attention, its suppression should 

be treated in the same manner as if there had 

been a specific request. This is precisely the 

approach taken by some courts. See eg. 

United States v Morell, 524 F2d, at 553; 

United States v Miller, 499 F2d, at 744; 

United States v Kahn, 472 F2d, at 287, 

United States v Keogh, 391 F2d, at 146-147. 

 



    3 L ed 2d 

v of habeas 

ow v United 

ed 369, 28 Se 
bh 

urged that 
t the Consti- 
rbid—adjudi- 
m which has 

a final judg- 
| - 

Adherence 
laws which 

n, though it 
‘ment of our 

mer’s rights, 
the vindica- 

“through the 
‘e should dis- 

ari inasmuch 
final judg- 

ve appellate 

  

    

  

   

  

  
  

  

naa A 

(me 
’ ' le o- \ 

r : | aE 
A | (LY 

het | = ' y 4 LL 

21500 

9- 0 1217 
aa 

*HENRAY NAPUE, Petitioner, 

v — 2p v-S. 269 

PROPLE OF THE STATE OK ILLINOIS ) 
36Q¢ US 264, 3 L ed 

[No 

Argued April 30, 1959. 

od 1217, 79 S Ct 1173 

. h83] Pr 

Decided June [5( 1959. 

SUMMARY 

At the murder trial of the defendant in an Illinois state court the 
principal state witness testified in response to a question by an attorney 
for the state that he had received no promise of consideration in return 
for his testimony. The state attorney knew that this testimony was false 
but did nothing to correct it. (However, the jury was apprised that a 
public defender had promised to do what he could for the witness.) Alleg- 
ing these facts, defendant filed a petition to set aside his conviction, but 
this petition was denied and the denial was affirmed by the Supreme Court 
of Illinois. (13 Ill 2d 566, 150 NE2 d 613.) 

On certiorari, the Supreme Court of the United States unanimously 
reversed the judgment below. In an opinion by WARREN. Ch. J., it was 
held that, under the circumstances d escribed above, the conviction violated 
the due process clause of the Fourteenth Amendment. 

SUBJECT OF ANNOTATION 

Beginning on 

Conviction on testimony known 
denial of 

Constitutional Law § 840 — due proc- 
ess — false evidence. 

1. A conviction obtained through 
use of false evidence, known to be 
such by representatives of the state, 
must fall under the due process clause 
of the Fourteenth Amendment; the 
same result obtains when the state, 

although not soliciting false evidence, 
allows it to go uncorrected when it 
appears. 

[See annotation references 1-3, 
and annotation, p. 1991, infra 

page 1991, infra 

to prosecution to be perjured as 
due process 

HEADNOTES 

Classified to U. S. Supreme Court Digest, Annotated 

Constitutional IL.aw § 840 — due proc- 
ess — false evidence. 

2. The due process principle that 
a state may not knowingly use false 

testimony to obtain a tainted convie- 
tion does not cease to apply merely 
because the false testimony goes only 

to the credibility of the witness. 
[| See annotation references 1-3, 

and annotation, p. 1991, infra] 

Constitutional I.aw § 840 — due proc- 
ess — false evidence. 

3. In applying the rule that a con- 
    

ANNOTATION REFERENCES 

1. Conviction on testimony known to 
prosecution to be perjured as denial of 
due process, 2 LL ed 2d 1575 and 3 L ed 2d 
1991. 

3. Unfairness or corruption of officers in 
performance of administrative functions 
fa civil or criminal cases in state court 

i3 Led 2d]—77 \ 

as in violation of the Fourteenth Amend- 
ment, 98 ALR 411. 

3. Suppression of evidence by prosecu- 
tion in criminal case as vitiating convie- 
tion under principles of due process of law, 

33 ALR2d 1421. ho : a 

HIV 
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1218 U. S. SUPREME 

viction obtained through use of false 
evidence known to be such by repre 
sentatives of the state and permitted 
by them to go uncorrected must fall 

under the due process clause of the 
Fourteenth Amendment, it is imma- 
terial that the silence of the state 
representatives was not the result of 
guile or a desire to prejudice. 

[See annotation references 1-3, 

and annotation, p. 1991, infra] 

Constitutional Law § 810 — due proc- 
ess — false evidence. 

4. Where a representative of the 
state in a criminal trial solicits false 
testimony or permits it to go uncor- 
rected, the fact that the jury was ap- 
prised of other grounds for believing 
that the witness may have had an 
interest in testifying against the de- 

fendant does not turn what is other- 
wise a tainted trial into a fair one. 

[See annotation references 1-3, 
and annotation, p. 1991, infra] 

Appeal and Error § 806 — from state 
court — effect of false testimony. 
In determining whether a state 

conviction obtained through use of 
false testimony violates the due proc- 
ess clause, the United States Supreme 
Court is not bound by a determina- 
tion by the state court below that the 
false testimony could not in any rea- 
sonable likelihood have affected the 
Judgment of the jury. 

[See annotation p. 1191, infra 

COURT REPORTS 

Appeal and Error § 708 — to Supra 
Court — constitutional questions | 

6. It is the duty of the Unis 

States Supreme Court to make its os 
independent examination of the ps 
ord when federal constitutional 
rivations are alleged, the duty restig 
on the court’s responsibility for m 
taining the Constitution inviolate 

Appeal and Error § 745 — denial 
right under Federal Constitu 

— scope and extent of review 
7. In cases in which there is ag 

of denial of rights under the Fed 
Constitution, the Supreme Court of ty 
United States is not bound by the of n 
clusions of lower courts, but will , 
examine the evidentiary basis? 
which those conclusions are fou 

Constitutional Law § 840 — due | 
ess — false evidence. ! 

8. The due process clause of # 
Fourteenth Amendment is violated} 

a state conviction of murder. whe 
the principal state witness: test 

in response to a question by an 
ney for the state that he had rece 
no promise of consideration in pref 
for his testimony, whereas, in _ 

the attorney had promised him 
sideration and did nothing to co 
the wilness’ false testimony; this 
so even though the jury was app 

that a public defender had promi 
to do what he could for the witne 

[See annotation references ley 
and annotation, p. 1991, infra] & 

APPEARANCES OF COUNSEL 

George N. Leighton, of Chicago, Illinois, argued the cause fo 

petitioner. 

William C. 
respondent. 

Briefs of Counsel, p 1920, in 

QPRENIQN OF 

*[360 US 265) EE 

*Mr. Chief Justic€ Warren ge- 
livered the opinion of {Fe~Conrt: 

At the murder trial of petitioner 
the principal Stale witness, then 
Serving a 197-year seulence for the 
same murder, testified in Rida 
fo a vhs ion by the Assistant 
State's Attorney 

Wines, of Chicago, 

\4 
| 

Illinois, argued the cause for 

fra. 

THE COURT . 

ceived no promise of consider 
in roturn Tor nis resk 
Agsistant State's Atte 
(acl promised hig cons 
did nothing to_corr clthi 
{alse Lestmony. e crm was. ; 
- ised, however that a publig’ 
fender had promised “to do wh 

that he had re- could” for the witness. The q 

/  



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» Supreme 
questions. 

e United 
e its own 

the rec- 
onal dep- 
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nstitution 

eview. 

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urt of the 
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Co (UGH 

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NAPUE v ILLINOIS 1219 
360 US 264, 3 Led 2d 1217, 79 S Ct 1173 

tion presented is whether qn these 
facts the failure of th{ prosecutor) 
to correct The TosLImany or Teil 
ness which he knew to be false de- 
nied peliioner due process of Taw. in 

“violation of the Fourteenth Amend- 
ment to the Constitution of the 
United States. 

The record in this Court contains 

testimony from which the following 
facts could have been found. The 
murder in question occurred early in 
the morning of August 21, 1938, in 
a, Chicago, Illinois, cocktail lounge. 
Petitioner Henry Napue, the yitness_ 
George Hamer, one Poe and one 
Townsend entered the dimly lighted 

lounge and announced their intention 
to rob those present. An off-duty 
policeman, present in the lounge, 

drew his service revolver and began 
firing at the four men. In the melee 

that followed Townsend was killed, 

the officer was fatally wounded, and 
the witness Hamer was seriously 
wounded. Napue and Poe carried 
Hamer to the car where a fifth man, 

one Webb, was waiting. In due 
course Hamer was apprehended, 
tried Tor-the murder of ihe iT 
man, convicted on his plea of guilty 
and sentenced to 199 vears, Subse- 
quently, Poe was apprehended, tried, 
convicted, sentenced to death and 
executed. Hamer was not used as 
a witness. 

Thereafter, petitioner Napue was 
apprehended. He was pat on trial 
ee tin — 

1. In relevant path his petition reid 
as follows: 

' “After Hamer was sentenced your peti- 

tioner [the Assistant State's Attorney] 
well knowing that identification of Poe, 

Napue and Webb if and when apprehended 
would be of an unsatisfactory character 

and not the kind of evidence upon which 

a jury could be asked to inflict a proper, 
severe penalty, and being unable to de- 

termine in advance whether Poe, Napue 

and Webb would make confessions of their 

participation in the crime, repres sented to 

Hamer that if he would be Willing to co- 
operate with law. enforcing ollicials upon 
the trial of [sic] trials of Doe, Napue and 

with Hamer being the principal wit- 
+1360 US 266] 

ness *for the State. Hammer's tes- 
timony Wil extremely important 

because the passage oT Time and Lhe 
dim Tight in {he cocktail TOUNge made 
eyewitness identiication very dif- 
ficult and uncertain, and because 
some pertinent witnesses had left 
the state. On the basis of the evi- 
dence presented, which consisted 
largely of Hamer’s testimony, the 

JUrY retire deimgiibyeseidict a d 
petitioner was sentenced to 199 
years. 

Finally, the driver of the car, 
Webb, was apprehended. Hamer 
also testified against him. He was 

convicted of murder and sentenced 
to 199 Vears. 

Following the convietion of Webb, 
the lawyer who, as formegp-Araststant 
State’s Attorney, had \prosecuted) 
fhe Hamer, Poe and Naptrewcased 
filed a petition in the nature of a 
Writ oF esq coram nobis Qu. behalf 
of Ifamer. Jn the petition he al- 
legod that as prosecuting attorney 
he, had promised Hamer that if he 
would Yestily agamdt Kapue, “a 
recommendation for a reduction of 
his [Hamer’s] sentence would be 
made and, if possible, effectuated.”! 

*1260 US 267] 

The *attorney prayed that the court 
would effect “consummation of the 
compact entered into between the 
duly authorized representatives of 

—, 

Webb when they were apprehended, that 
a recommendation for a reduction of his 

Serrterree—wotiTd he madc_and, Ld possible, 
efiec tuated. = 

“Before _teslifiigeson behalf of the 
State and against Napue, Hamer ex- 
pressed to your petitioner a relnc: ance. to 

cooperate any further unles he were given 
JeOnite Tisupnce that a recommendation 

for reduction of his sentence would be 

nade. Your petitioner, feeling that the 
interests of justice required Hamer's tes- 

timony, again assured Hamer that ever y 

possible effort would be made to conform. 
To the promise previously made to him. 2 

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1220 U. S. SUPREME 

the State of Illinois 
Hamer.” 

This coram nobis proceeding came 

to the attention of Napue, who there- 
after filed a post-conviction petition, 
in which he alleged that Hamer had 
falsely testified that he had beep 
premised no consideration. for his 
testimony, and that the Assistant 
State’s Attorney handling the case 
had known this to be false. A hear- 
ing was ultimately held at which 
the former Assistant state's Atlor- 
ney (gebsied thal he had only proip- 
igedo help) ATR Ne Hamers story 
“about being a rf hi partici i- 
pant” in fhe=kpbbery was borne out, 
and not dnerely) if Hamer would tes- 
TiTy at petitioner's Trial, He testified 
that In his coram obi petition on 
Hamer’s behalf he “probably used 
some language that [he] should not 
have used” in his “zeal to do some- 
thing for Hamer” to whom he “felt 
a moral obligation.” The lower 

and George 

COURT REPORTS 

court denied petitioner relief ondih . 
basis of the Atiorneyy: testimon 

On appeal, ; i 
( court affirmed on different rounds 
over two dissents. 18 Ill 2d 566, I 
NE2d 613. It found, contrary tok 

trial court, that the attorney! 
promised Hamer consideration’if 
would testify at petitioner's ‘tris 
finding which the State does not gt 
test here. It further found that th 
Assistant State's Attorney” (ey 
{Rat Hamer fad Tied im 1 denying hy 

*1360 18 268] Ota 
*he had been promised’ conside 
tion. It held, however, that iy 
tioner was  enLiTIed To) no reliel 8 
me July already been a appre 
{TATE someone) “UNO Tan : 
Tentatively. Tdentiled as pe 2 i 
[Te-ereider_ was going to do whal 
hie could” in aid of lanier, and “wa 
{rying to get something aid] 

*1360 US 269] + -~4itly 

We granted certiorari 

  

him.3? 
  

2. The allened Tale testimony of Hamer 
first occurred on his cross-examination: 

“Q. Did anybody give you a reward or 

promise you a reward for testifying? 
“A. There ain’t nobody promised me 

anything.” 

On redirect examination the Assistant 

State’s Attorney again elicited the same 
false answer. 

“Q. [by the Assistant State’s Attorney] 
Have I promised you that I would recom- 
mend any reduction of sentence to any- 
body? 

“A. You did not.” 

3. The following is Hamer’s testimony 
on the subject: 

“Q. [on cross-examination] And didn’t 

you tell him [one of Napue’s attorneys] 

that you wouldn’t testify in this case un- 
less you got some consideration for it? 

“A... . .—- Yes, T did; 1 told him that. 

“Q. What are you sentenced for? 

“A. One hundred and Ninety-Nine Years. 
“Q. You hope to have that reduced, 

don't you? 

“A. Well, if anybody would help me or 

do anything for me, why certainly I would. 
“Q. Were 't you expecting that when 

you came here today? 

“A. There haven’t no one told me any- 
thing, no more than the lawyer. The 

‘ rir © He 

Yeuver come in and talked to me a, " 

ago and said he was going to do hat 
could. AMALTEN 

“Q. Which lawyer was that? "9% 
“A. I don’t know: it was a Publi¢ 

fender. I don’t see him in here, ..'* 
“Q. You mean he was from the 

Defender’s office? 
“A. I imagine that is where. 

from, I don’t know. 

“Q. And he was the one who told 
that? sayred 

“A. Yes, he told me he was 
get something did for me. ''*% Ri 

“Q. . . And he told you" 
going 0 do something for you? + Jui 

“A. He said he was going to try; 
« 1% viv 

q. And you told them [police offi 
you would [testify at the trial of N 
but you expected some consideration 
it? NE dg 

“A. I asked them was there any ¢ 
of me getting any. The man told 
didn’t know, that he couldn't pron 
anything. Hirai gg 

“Q. Then you spoke to a lawyer 
who said he would try to get your; 
cut? 

“A. That was this Public Deter 
don’t even know his name, » 1  



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NAPUE v ILLINOIS 1221 
360 US 264, 3 L ed 2d 1217, 79 S Ct 1173 

consider the question posed in the 
first paragraph of this opinion. 358 

US.Al19. 
( Firsl) it is established that a_con- 

/ vICTion obtained through use of fT Talse 
evidence, known to be 

Headnote 1 gych Sy representatives 
‘of the State, must fall 

under the Fourteenth Amendment, 
Mooney v Holohan, 294 US 103, 79 
Led 791, 55 S Ct 340, 98 ALR 406: 
Pyle v Kansas, 317 US 213, 87 L ed 
214,63 S Ct 177; Curran v Delaware 
(CA3 Del) 259 I'2d 707. See New 
York ex rel. Whitman v Wilson, 318 

US 688, 87 L ed 1083, 63 S Ct 840, 

and White v Ragen, 324 US 760, 89 
L ed 1348, 65 S Ct 978. Compare 

‘Jones v Kentucky (CA6 Ky) 97 "2d 
335, 338, with Re Sawver's Petition 
(CAT Wis) 229 F2d 805, 809. Cf. 
Mesarosh v United States, 352 US 1, 
1Led2d 1,77 SCt1,9. The same 

result obtaing when the STATE, ne 
_fhough not ZEOTCITIng alse evIaCIe e, 
“allows It 10 £0 uncorrected LL it 
dppears. Alcorta v Texas, 355 US 
28,21, ed 2d 9, 78 S Ct 103 }:3 

States ex rel. Thompson v Dye (CA3 
Pa) 221 F2d 763; United States ex 
rel. Almeida v Baldi (CA3 Pa) 195 
F2d 815, 33 ALR2d 1407; United 
States ex rel. Montgomery v Ragen 
(DC Ill) 86 F Supp 382. Sce gen- 
erally annotation, 2 1. ed 2d 1575. 

~The principle that a State m: \y not. 
knowingly use false ev Vidence, helud: 

ing lalse te: stimony, to 
Headnote 2 GRTAIN a tainted convie- 
AER tion, implicit in any con- 
cept of ordered liberty, does mot 
cease to apply merely hecanse {Ne 
false Testimony goes only to the 
credibility “of {he witness. The 
jury’s estimate of the truthfulness 
hl. 4, given witness 
may well be determin: ative of lilt 
    

op-mnotence, and it is upon such 
[ subtle factors as the possible inter- 
| est of the witness in testifying false- 
ly that a defendant’s life or liberty 
| may depend. As stated by the New 

York Court of Appeals in a tase 

very ia to this one, People v 

Savvides, 1 NY2d 5b4, 557, 154 NYS 

2d 885, 887, 36 NE2d 8533, 854, 855. 

“It is of no consequence that the 

falsehood bore upon the witness’ 
credibility rather than directly upon 

defendant’s guilt. A lie is a lie, 
*1360 US 270] 

no matter *what its subject, and, 

if it is in any way relevant to the 

case, the district attorney has the 

responsibility and duty to correct 

what he knows: to be false and 

elicit the truth. . . . Thii the 

district attorney's si- 

Headnote 3 Jence was not the result 
of guile or a desire to 

prejudice matters little, for its im- 

pact was the same, preventing, as 

it did, a trial that could in any real 

sense be termed fair.” 
m— 

/Socond) we do not believe that the 

rama TL the jury was apprised of 

other grounds for believ. 

Headnote 4“ ino that the Witness. 

' Hamer pay have had an 
interest. in testifying against peti- 

Tioner turned what was otherwise a 

tainted” Trial into a fair one. As Mr. 

Justice Schaefer, joined by Chief 

Justice Davis, rightly put it in his 

Sifting opinion below, 13 Tll 2d 

566, b71, 150 NI£2d 613, 616: 

hi is overlooked here is that 
Hamer clearly testified that no one 

had offered to help him except an 

unidentified lawyer from the public 
defender’s office.” 

Had the jury been apprised of the 

true facts, however, it might well 

have concluded that Hamer had 

fabricated testimony in order to 

curry the favor of the very repre- 

sel tative of the State who was pros- 

ecuting the case in which Hamer was 

testifying, for Hamer might have 

believed that SUch a representative 
* 

  

  

  
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1222 U. S. SUPREME COURT REPORTS 3Led2 § 

was in a position to implement (as and that we are bound by its detes§ 
he ultimately attempted to do) any mination that tne false testimong 
promise of consideration. That the could not in any reasonable like § 
Assistant State’s Attorney himself hood have affected the judgment of § 
thought 1t important to establish the jury. The State relies on Hysler : 
before the jury that no omcial source v Florida, 315 US 411, 86 L ed 98 kK 

Chad promised TIamer consideration. 62 S Ct 688. But in that case 
is made clear by nig redirect ex- Court held only that a state stands ; 

amination, which was the last tes- ard of specificity and substantiality § 

timony of Hamer’s heard by the in making allegations of federal cos 

jury: stitutional deprivations would : 

“Q. Mr. Hamer, has Judge Pry- respected, and this Court made i 

stalski [the trial judge] promised own “independent examination”, 

you any reduction of sentence? the allegations there to determine 
+1360 US 271] they had in fact met the Florids 

2¢“A. No, sir, standard. The duty ef" % 

“Q. Have I promised you that 1 Headnote 6 this Court to make Hs 
would recommend any reduction of own independent ese 
sentence to anybody? amination of the record when federal 

“A. You did not. [That answer constitutional deprivations are d 

was false and known to be so by leged is clear, resting, as it does, 8 
the prosecutor.] our solemn responsibility for : 

«Q. Has ds Yudue of the erimi- taining the Constitution inviolath 
: Martin v Hunter (uh 1 Wheat 304 

al ¢ ‘omis hat they [sic nal court promised tha y [sic] 41. ed 97; Cooper v Aaron, 358 USL: 

would reduce your sentence? +1360 US 272] ey 

“A. No, sir. 3 Led 2d 5, 78 S Ct 1401, This 
“Q. Has any representative of the principle was well stated. in 

Parole Board been to see you and motko v Maryland, 340 US 268, aL 
promised you a reduction of sen- 95 L ed 267, 270, 71 S Ct 325, 338%. 
tence? “In cases in which there is a cial 

“A. No, sir. of denial of rights under the Federsl 

“Q. Has any representative of the Constitution, this (x 
tovernor of the State of Ilinois = Ferdeete 7. Je not bound by the 
promised you a reduction of sen- clusions of lower cou 
tence? but will reexamine the evidentk 

; basis on which those conclusi 
“A. No, sir.” ons 

founded.” ; 
We are therefore unable to agree 2» is now so well settled that : 

with the Illinois Supreme Court{ c,urt was able to speak in B 
that “there was no constitutional | | iarick Inc. v Scurlock, 847 IE 
infirmity by virtue of the false state- | {10 121. 98 L ed 546, 556, 74 81 
mendes ; 

yo 

| 403, of the “long course of judi 
{ Third the State argues that we | construction which establishes 
\. are not free to reach a| principle that the duty rests on 
Headnote 5 factual conclusion differ-| Court to decide for itself facts 

ent from that reached] constructions upon which {eden 

by the Illinois Supreme Court) constijupionnl issues rest. 
    

. Bes, e.g. Tare v Arkansas, 356 US Georgia, 346 US 559, 561, 97 L ed 1 
560, 562, 2 1. ed 24 975, 977, 718 SS Ct 1247, 73S Ct 391; Feiner v New Yo 

844; Leyra v Denno, 347 US 5566, 558, 98 340 US 315, 322, 323, note 4, 9% AS 

L ed 948, 950, 74 S Ct 716; Avery v 295, 301, 71 S Ct 303, 328 (d 

=  ——————  



3 Led2d 

v its deter- 
testimony 
ble likeli- 
{pment of 
on Ifysler 

» Led 932, 

t case the 

ate stand- 

stantiality 
deral con- 
would be 

made its 

ation” of 
‘ermine if 
e Florida 
duty of 

make its 

ent ex- 

'n federal 
are al- 

does, on 

or main- 

violate. 

heat 304, 

58 US 1, 

*This 

in Nie- 

263, 271, 
35, N28: 

a claim 

Federal 
Court 

the con- 

courts, 

lentiary 

ons are 

hat the 

lkern- 

17.18 

1-85 Ct 

‘udicial 

'S af a 

on this 

wets or 

federal 
z ASR 

I 1244, 

York. 

[. ed 

enting 

  

NAPUE v ILLINOIS 1225 
360 US 264, 3 L ed 2d 1217, 79 S Ct 1173 

previously indicated, our own evalu- 
ation of the record here 

Headnote 8 compels us to hold that 
the false testimony used 

by the State in securing the convic- 
tion of petitioner may have had an 
effect on the outcome of the trial. 
Accordingly, the judgment below 
must be 

Reversed. 
  

NOTE 
An__anmotation on “Convictions 

testimony known to prosecution to be 

rerjured as denial of due process” ap- 
ears p. 1991, infra. 

  

opinion); Cassell v Texas, 339 US 282, 

283, 94 1. ed 839, 845, 70 S Ct 629; Haley 

v: Ohio, 332 US 596, 599, 92 1, ed 224, 

228, 68 S Ct 302; Malinski v New York, 
324 US 401, 404, 89 1. cd 1029, 1032, 6b 

S Ct 781; Ashcraft v Tennessee, 322 US 

143, 149, 88 I, ed 1192, 1196, 64 S Ct 921; 

Ward v Texas, 316 US 547, 550, 36 L 

ed 1663, 1665, 62 S Ct 1139; Smith v 
Texas, 311 US 128, 130, 85 L ed 84, 86, 

61 S Ct 164; South Carolina v Bailey, 289 

US 412,420, 77 L. ed 1202,.1296, 53°S Ct 

667. See also, e.g., Roth v United States, 

354 US 476, 497, 1 1. ed 2d 1498, 1514, 77 
S Ct 1304 (dissenting opinion); Stroble v 

California, 343 US 181, 190, 96 L ed 872 12, 
880, 72 S Ct 599; Sterling v Constantin, 

287 US 378, 398, 77 IL. ed 37H, 38h, b3 S Ct 

190; Southern P. Co. v Schuyler, 227 US 
601, 611. B7 1. ed 662, 669, 33 SS -Ct 277, 

43 LRA NS 901; Creswill v Grand Lodge, 
K. of P. 226 US 246, 261, 56 IL ed 1074, 

1080, 32 S Ct 822, 
Mr. Justice Holmes, writing for the 

Court, recognized the principle over 35 

years ago in Davis v Wechsler, 263 US 22, 

24, 68 1. ed 143, 146, 44 S Ct 13: 

“If the Constitution and laws of the 
United States are to be enforced, this 

Court cannot accept as final the decision 
of a state tribunal as to what are the 

facts alleged to give rise to the right 

or to bar the assertion of it even upon 
local grounds.” 

  

  

  

  

 



     

         

3Led2d 

y of habeas 
ow Vv United 

ed 369, 28 § 

    
   

  

     

     
   

  

    

     

    

    

  

e urged that 
at the Consti. 
orbid—adjudi. 
im which hag 

a final judg. 
63] 
t. Adherence 
e laws which 

ion, though it 
nement of our 
tioner’s rights, 
of the vindica- 
aw through the 
We should dis- 
orari inasmuch 
no final judg- 
have appellate 

     

    

  

      

    

   
   

    

   
   

   

  

   

  

   

    

     
     
       
      
     

  

Constitutional Law § 840 — due proc- 
ess — false evidence. 

1. A conviction obtained through 

use of false evidence, known to be 
such by representatives of the state, 
must fall under the due process clause 
of the Fourteenth Amendment; the 
same result obtains when the state, 
although not soliciting false evidence, 
allows it to go uncorrected when it 
appears. 

[See annotation references 1-3, 
and annotation, p. 1991; infra] 

   

  

*[360 US 264] 

*HENRY NAPUE, Petitioner, 

Vv 

PEOPLE OF THE STATE OF ILLINOIS 

360 US 264, 3 L ed 2d 1217, 79 S Ct 1173 

[No. 583] 

Argued April 30, 1959. Decided June 15, 1959. 

SUMMARY 

At the murder trial of the defendant in an Illinois state court the 
principal state witness testified in response to a question by an attorney 

for the state that he had received no promise of consideration in return 

for his testimony. The state attorney knew that this testimony was false 

but did nothing to correct it. (However, the jury was apprised that a 
public defender had promised to do what he could for the witness.) Alleg- 
ing these facts, defendant filed a petition to set aside his conviction, but 

this petition was denied and the denial was affirmed by the Supreme Court 
of Illinois. (13 Ill 2d 566, 150 NE2d 613.) 

On certiorari, the Supreme Court of the United States unanimously 

reversed the judgment below. In an opinion by WARREN, Ch. J., it was 

held that, under the circumstances described above, the conviction violated 
the due process clause of the Fourteenth Amendment. 

SUBJECT OF ANNOTATION 

Beginning on page 1991, infra 

Conviction on testimony known to prosecution to be perjured as 
denial of due process 

HEADNOTES 

Classified to U. S. Supreme Court Digest, Annotated 

Constitutional Law § 840 — due proc- 
ess — false evidence. 

2. The due process principle that 

a state may not knowingly use false 
testimony to obtain a tainted convic- 

tion does not cease to apply merely 

because the false testimony goes only 
to the credibility of the witness. 

[See annotation references 1-3, 
and annotation, p. 1991, infra] 

Constitutional Law § 840 — due proc- 
ess — false evidence. 

38. In applying the rule that a con- 
  

1. Conviction on testimony known to 
prosecution to be perjured as denial of 
due process, 2 L ed 2d 1575 and 8 L ed 2d 
1901. 

2. Unfairness or corruption of officers in 
performance of administrative functions 

In civil or criminal cases in state court 

[3L ed 2d]—77 

ANNOTATION REFERENCES 
as in violation of the Fourteenth Amend- 
ment, 98 ALR 411. 

3. Suppression of evidence by prosecu- 
tion in criminal case as vitiating convie- 
tion under principles of due process of law, 
33 ALR2d 1421. 

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. 1218 

  
viction obtained through use of false 
evidence known to be such by repre- 

sentatives of the state and permitted 
by them to go uncorrected must fall 

under the due process clause of the 
" Fourteenth Amendment, it is imma- 

terial that the silence of the state 
representatives was not the result of 
guile or a desire to prejudice. 

[See annotation references 1-3, 
and annotation, p. 1991, infra] 

Constitutional Law § 840 — due proc- 
ess — false evidence. 

4. Where a representative of the 
state in a criminal trial solicits false 

testimony or permits it to go uncor- 
rected, the fact that the jury was ap- 

prised of other grounds for believing 

that the witness may have had an 
interest in testifying against the de- 
fendant does not turn what is other- 
wise a tainted trial into a fair one. 

[See annotation references 1-3, 
and annotation, p. 1991, infra] 

Appeal and Error § 806 — from state 
court — effect of false testimony. 

5. In determining whether a state 
conviction obtained through use of 
false testimony violates the due proc- 
ess clause, the United States Supreme 

Court is not bound by a determina- 
tion by the state court below that the 
false testimony could not in any rea- 
sonable likelihood have affected the 

judgment of the jury. 
[See annotation p. 1191, infra] 

U. S. SUPREME COURT REPORTS 3 Led 24d 

Appeal and Error § 708 — to Supreme 
Court — constitutional questions, 

6. It is the duty of the Uniteq 
States Supreme Court to make its own 
independent examination of the reec- 

ord when federal constitutional dep- 

rivations are alleged, the duty resting 

on the court’s responsibility for main- 
taining the Constitution inviolate. 

Appeal and Error § 745 — denial of 
right under Federal Constitution 
— scope and extent of review. 

7. In cases in which there is a claim 
of denial of rights under the Federal 

Constitution, the Supreme Court of the 
United States is not bound by the con- 
clusions of lower courts, but will re- 

examine the evidentiary basis on 
which those conclusions are founded. 

Constitutional Law § 840 — due proc- 
ess — false evidence. 

8. The due process clause of the 
Fourteenth Amendment is violated by 
a state conviction of murder where 
the principal state witness testified 
in response to a question by an attor- 
ney for the state that he had received 

no promise of consideration in return 
for his testimony, whereas, in fact, 
the attorney had promised him con- 

sideration and did nothing to correct 
the witness’ false testimony; this is 
so even though the jury was apprised 

that a public defender had promised 
to do what he could for the witness. 

[See annotation references 1-3, 
and annotation, p. 1991, infra] 

APPEARANCES OF COUNSEL 

George N. Leighton, of Chicago, Illinois, argued the cause for 

petitioner. 

William C. Wines, of Chicago, Illinois, argued the cause for 

respondent. 
Briefs of Counsel, p 1990, infra. 

OPINION OF THE COURT 

_- 3360 US 265] : 

*Mr. Chief Justice Warren de- 
livered the opinion of the Court. 

At the murder trial of petitioner 
the principal state witness, then 
serving a 199-year sentence for the 
same murder, testified in response 
to a question by the Assistant 
State’s Attorney that he had re- 

‘ceived no promise of consideration 
in return for his testimony. The 
Assistant State’s Attorney had in 
fact promised him consideration, but 
did nothing to correct the witness’ 
false testimony. The jury was ap- 
prised, however, that a public de- 
fender had promised “to do what he 
could” for the witness. The ques- 

[3L ed 2d] 

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3 Led2d 

R — to Supreme 

ional questions. 

of the United 
to make its own 

ion of the rec- 
stitutional dep- 
he duty resting 
bility for main- 
on inviolate. 

45 — denial of _ 
al Constitution 
t of review. 

there is a claim 

der the Federal 
bme Court of the 
und by the con- 

ts, but will re- 
iary basis on 

s are founded. 

40 — due proc- 
ce. 

clause of the 
t is violated by 
murder where 

itness testified 
on by an attor- 

he had received 
ation in return 
hereas, in fact, 

ised him con- 

hing to correct 
imony; this is 
v was apprised 

had promised 
the witness. 

erences 1-3, 

991, infra] 

cause for 

cause for 

consideration 
ktimony. The 

orneyv had in 
sideration, but 
t the witness’ 
jury was ap- 
a public de- 

to do what he 
ls. The ques- 

[3 L ed 2d] 

NAPUE v ILLINOIS 219 
860 US 264,3 L ed 2d 1217, 79 S Ct 1173 

tion presented is whether on these 
facts the failure of the prosecutor 
to correct the testimony of the wit- 

-ness which he knew to be false de- 
nied petitioner due process of law in 
violation of the Fourteenth Amend- 
ment to the Constitution of the 
United States. 

The record in this Court contains 
testimony from which the following 
facts could have been found. The 
murder in question occurred early in 
the morning of August 21, 1938, in 
a Chicago, -Illinois, cocktail lounge. 

Petitioner Henry Napue, the witness 
George Hamer, one Poe and one 
Townsend entered the dimly lighted 
lounge and announced their intention 
to rob those present. An off-duty 
policeman, present in the lounge, 
drew his service revolver and began 
firing at the four men. In the melee 
that followed Townsend was killed, 
the officer was fatally wounded, and 
the witness Hamer was seriously 
wounded. Napue and Poe carried 
Hamer to the car where a fifth man, 
one Webb, was waiting. In due 
course Hamer was apprehended, 
tried for the murder of the police- 
man, convicted on his plea of guilty 
and sentenced to 199 vears. Subse- 
quently, Poe was apprehended, tried, 
convicted, sentenced to death and 
executed. Hamer was not used as 
a witness. 

Thereafter, petitioner Napue was 
apprehended. He was put on trial 

with Hamer being the principal wit- 
*[360 US 266] 

ness *for the State. Hamer’s tes- 
timony was extremely important 
because the passage of time and the 
dim light in the cocktail lounge made 
eyewitness identification very dif- 
ficult and uncertain, and because 
some pertinent witnesses had left 
the state. On the basis of the evi- 
dence presented, which consisted 
largely of Hamer’s testimony, the 
jury returned a guilty verdict and 
petitioner was sentenced to 199 
years. 2 

Finally, the driver of the car, 

Webb, was apprehended. Hamer 
also testified against him. He was 
convicted of murder and sentenced 
to 199 years. 

Following the conviction of Webb, 
the lawyer who, as former Assistant 
State’s Attorney, had prosecuted 
the Hamer, Poe and Napue cases 
filed a petition in the nature of a 
writ of error coram nobis on behalf 
of Hamer. In the petition he al- 
leged that as prosecuting attorney 
he had promised Hamer that if he 
would testify against Napue, “a 
recommendation for a reduction of 
his [Hamer’s] sentence would be 
made and, if possible, effectuated.”? 

*[360 US 267] 
The *attorney prayed that the court 
would effect “consummation of the 
compact entered into between the 
duly authorized representatives of 

  

1. In relevant part, his petition read 
as follows: 

“After Hamer was sentenced your peti- 
tioner [the Assistant State's Attorney] 
well knowing that identification of Poe, 
Napue and Webb if and when apprehended 
would be of an unsatisfactory character 

and not the kind of evidence upon which 

a jury could be asked to inflict a proper, 

severe penalty, and being unable to de- 
termine in advance whether Poe, Napue 
and Webb would make confessions of their 
participation in the crime, represented to 

Hamer that if he would be willing to co- 
operate with law enforcing officials upon 

the trial of [sic] trials of Poe, Napue and 

Webb when they were apprehended, that 

a recommendation for a reduction of his 

sentence would be made and, if possible, 

effectuated. 

“Before testifying on behalf of the 
State and against Napue, Hamer ex- 
pressed to your petitioner a reluctance to 

cooperate any further unles he were given 

definite assurance that a recommendation 

for reduction of his sentence would be 
made. Your petitioner, feeling that the 

interests of justice required Hamer’s tes- 

timony; again assured Hamer that every 

possible effort would be made to conform 
tc the promise previously made te him.”  



  

  
    
    

    

1220 U. S. SUPREME COURT REPORTS 3Led2d 

the State of Illinois and George 
Hamer.” 

This coram nobis proceeding came 
to the attention of Napue, who there- 
after filed a post-conviction petition, 
in which he alleged that Hamer had 
falsely testified that he had been 
promised no consideration for his 
testimony,? and that the Assistant 
State’s Attorney handling the case 
had known this to be false. A hear- 
ing was ultimately held at which 
the former Assistant State’s Attor- 
ney testified that he had only prom- 
ised to help Hamer if Hamer’s story 
“about being a reluctant partici- 
pant” in the robbery was borne out, 
and not merely if Hamer would tes- 
tify at petitioner's trial. He testified 
that in his coram nobis petition on 
Hamer’s behalf he “probably used 
some language that [he] should not 
have used” in his “zeal to do some- 
thing for Hamer” to whom he “felt 
a moral obligation.” The lower 

court denied petitioner relief on the 
basis of the attorney’s testimony. 

On appeal, the Illinois Supreme 

Court affirmed on different grounds 
over two dissents. 13 Ill 24 566, 150 
NE2d 613. It found, contrary to the 
trial court, that the attorney had 
promised Hamer consideration if he 
would testify at petitioner’s trial, a 
finding which the State does not con- 
test here. It further found that the 
Assistant State’s Attorney knew 
that Hamer had lied in denying that 

*[360 US 2681 
*he had been promised considera- 
tion. It held, however, that peti- 
tioner was entitled to no relief since 
the jury had already been apprised 
that someone whom Hamer had 
tentatively identified as being a pub- 
lic defender “was going to do what 
he could” in aid of Hamer, and “was 
trying to get something did” for 

*[360 US 269] 

him.? We granted certiorari *to 
  

2. The alleged false testimony of Hamer 
first occurred on his cross-examination: 

“Q. Did anybody give you a reward or 
promise you a reward for testifying? 

“A. There ain’t nobody promised me 
anything.” 

On redirect examination the Assistant 
State’s Attorney again elicited the same 
false answer. 

“Q. [by the Assistant State's Attorney] 
Have I promised you that I would recom- 
mend any reduction of sentence to any- 
body? 

“A. You did not.” 
3. The following is Hamer’s testimony 

on the subject: 
“Q. [on cross-examination] And didn’t 

you tell him [one of Napue’s attorneys] 
that you wouldn't testify in this case un- 
less you got some consideration for it? 

. Yes, I did; I told him that. 

. What are you sentenced for? 

. One hundred and Ninety-Nine Years. 
. You hope to have that reduced, 
you? 

“A. Well, if anybody would help me or 

do anything for me, why certainly I would. 

“Q. Weren't you expecting that when 
you came here today? 

“A. There haven't no one told me any- 
thing, no more than the lawyer. The 

lawyer come in and talked to me a while 
ago and said he was going to do what he 
could. 

“Q. Which lawyer was that? 
“A. I don’t know; it was a Public De- 

fender. I don’t see him in here. 
“Q. You mean he was from the Public 

Defender’s office? 
“A. 1 imagine that is where he was 

from, I don’t know. 
“Q. And he was the one who told you 

that? 
“A. Yes, he told me he was trying to 

get something did for me. 
And he told you he was 

going to do something for you? 
“A. He said he was going to try to. 

“Q. And you told them [police officers] 
you would [testify at the trial of Napue] 

but vou expected some consideration for 
it? 

“A. 1 asked them was there any chance : 

of me getting any. The man told me he 
didn’t know, that he couldn't promise me 
anything. 

“Q. Then you spoke to a lawyer today 

who said he would try to get your time 
cut? 

“A. That was this Public Defender. I 
don’t even know his NOME. + ov 

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3 Led2d 

ioner relief on the 
orney’s testimony. 

e Illinois Supreme 
different grounds 
13 Ill 24 566, 150 

ind, contrary to the 
the attorney had 
consideration if he 
petitioner’s trial, a 
State does not con- 
her found that the 

s Attorney knew 
lied in denying that 
US 268] 

romised considera- 
however, that peti- 

bd to no relief since 
eady been apprised 
‘hom Hamer had 

ified as being a pub- 
s going to do what 
bf Hamer, and “was 
omething did” for 

h US 269] 

ted certiorari *to 
  

H talked to me a while 

bs going to do what he 

br was that? 

s+ it was a Public De- 

him in here. : 

e was from the Public 

hat is where he was 

“the one who told you 

me he was trying to 

for me. 

H he told you he was 

ing for you? 
was going to try to. 

3 them [police officers] 

at the trial of Napue] 

some consideration for 

was there any chance 

The man told me he 

he couldn’t promise me 

boke to a lawyer today 

try to get your ume 

is Public Defender. : 

SName ve 

NAPUE v ILLINOIS 
360 US 264,83 L ed 2d 1217, 79 S Ct 1173 

consider the question posed in the 
first paragraph of this opinion. 358 
US 919. 

First, it is established that a con- 

viction obtained through use of false 
evidence, known to be 

Headnote 1 such by representatives 
of the State, must fall 

under the Fourteenth Amendment, 
Mooney v Holohan, 294 US 108, 79 
L ed 791, 55 S Ct 340, 98 ALR 406; 
Pyle v Kansas, 317 US 213, 87 L ed 
214, 63 S Ct 177; Curran v Delaware 
(CAS3 Del) 259 F2d 707. See New 
York ex rel. Whitman v Wilson, 318 
US 688, 87 L ed 1083, 63 S Ct 840, 
and White v Ragen, 324 US 760, 89 
L ed 1348, 65 S Ct 978. Compare 

Jones v Kentucky (CA6 Ky) 97 F2d 
335, 338, with Re Sawyer’s Petition 
(CA7 Wis) 229 F2d 805, 809. Cf. 
Mesarosh v United States, 352 US 1, 
1Led2d1,77SCt1,9. The same 
result obtains when the State, al- 
though not soliciting false evidence, 
allows it to go uncorrected when it 
appears. Alcorta v Texas, 355 US 
28,2 L ed 2d 9, 78 S Ct 103; United 
States ex rel. Thompson v Dye (CAS 
Pa) 221 F2d 763; United States ex 
rel. Almeida v Baldi (CA3 Pa) 195 
F2d 815, 33 ALR2d 1407; United 
States ex rel. Montgomery v Ragen 
(DC Ill) 86 F Supp 382. See gen- 
erally annotation, 2 L ed 24 1575. 

The principle that a State may not 
knowingly use false evidence, includ- 

ing false testimony, to 
Headnote 2 obtain a tainted convic- 

tion, implicit in any con- 
cept of ordered liberty, does not 
cease to apply merely because the 
false testimony goes only to the 
credibility of the witness. The 
jury’s estimate of the truthfulness 
and reliability of a given witness 
may well be determinative of guilt 
or innocence, and it is upon such 
subtle factors as the possible inter- 
est of the witness in testifying false-. 
ly that a defendant’s life or liberty 
may depend. As stated by the New 

York Court of Appeals in a case 

very similar to this one, People v 

Savvides, 1 NY2d 554, 557, 154 NYS 

2d 885, 887, 136 NE2d 853, 854, 855. 

“It is of no consequence that the 

falsehood bore upon the witness’ 

credibility rather than directly upon 

defendant’s guilt. A lie is a lie, 
: *[360 US 270] 

no matter *what its subject, and, 

if it is in any way relevant to the 
case, the district attorney has the 

responsibility and duty to correct 

what he knows to be false and 

elicit the truth. . . i: That the 

district attorney’s si- 

Headnote 3 lence was not the result 

of guile or a desire to 

prejudice matters little, for its im- 

pact was the same, preventing, as 

it did, a trial that could in any real 

sense be termed fair.” 

Second, we do not believe that the 

fact that the jury was apprised of 

other grounds for believ- 

Headnote 4 ing that the witness 

Hamer may have had an 

interest in testifying against peti- 

tioner turned what was otherwise a 

tainted trial into a fair one. As Mr. 

Justice Schaefer, joined by Chief 

Justice Davis, rightly put it in his 

dissenting opinion below, 13 Ill 2d 

566, 571, 150 NE2d 613, 616: 

“What is overlooked here is that 

Hamer clearly testified that no one 

“had offered to help him except an 

unidentified lawyer from the public 
defender’s office.” 

Had the jury been apprised of the 

true facts, however, it might well 

have concluded that Hamer had 

fabricated testimony in order to 

curry the favor of the very repre- 

sentative of the State who was pros- 

ecuting the case in which Hamer was 
testifying, for Hamer might have 
believed that such a representative 

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1222 U. S. SUPREME COURT REPORTS 3 Led2d 

was in a position to implement (as 
he ultimately attempted to do) any 
promise of consideration. That the 
Assistant State’s Attorney himself 
thought it important to establish 
before the jury that no official source 
had promised Hamer consideration 
is made clear by his redirect ex- 
amination, which was the last tes- 
timony of Hamer’s heard by the 

jury: 

“Q. Mr. Hamer, has Judge Pry- 
stalski [the trial judge] promised 
you any reduction of sentence? 

*[360 US 271] 

$45 No, sir. 

“Q. Have I promised you that I 
would recommend any reduction of 
sentence to anybody? 

“A. You did not. [That answer 
was false and known to be so by 
the prosecutor.] 

“Q. Has any Judge of the crimi- 
nal court promised that they [sic] 
would reduce your sentence? 

“A. No, sir. 

“Q. Has any representative of the 
Parole Board been to see you and 
promised you a reduction of sen- 
tence? 

“A. No, sir. 

“Q. Has any representative of the 
Governor of the State of Illinois 
promised you & reduction of sen- 
‘tence? 

“A. No, sir.” 

We are therefore unable to agree 
with the Illinois Supreme Court 
that ‘there was no constitutional 
infirmity by virtue of the false state- 
ment.” 

- Third, the State argues that we 
are not free to reach a 

Headnote 5 factual conclusion differ- 
ent from that reached 

- by ‘the Illinois Supreme Court, 

and that we are bound by its deter. 
mination that the false testimony 
could not in any reasonable likeli. 
hood have affected the judgment of 
the jury. The State relies on Hysler 
v Florida, 315 US 411, 86 L ed 932, 
62 S Ct 683. But in that case the 
Court held only that a state stand. 

ard of specificity and substantiality 
in making allegations of federal con- 
stitutional * deprivations would be 

respected, and this Court made its 
own “independent examination” of 

the allegations there to determine if 
they had in fact met the Florida 
Sin standard. The duty of 
Headnote 6 this Court to make its 

own independent ex- 
amination of the record when federal 
constitutional deprivations are al- 
leged is clear, resting, as it does, on 
our solemn responsibility for main- 
taining the Constitution inviolate, 
Martin v Hunter (US) 1 Wheat 304, 
4 L ed 97; Cooper v Aaron, 358 US 1, 

*[360 US 272] 

81 ed 2d 5,78 S Ct 1401. *This 
principle was well stated in Nie- 
motko v Maryland, 340 US 268, 271, 
95 L ed 267, 270, 71 S Ct 325, 328: 

“In cases in which there is a claim 
of denial of rights under the Federal 

Constitution, this Court 
Headnote 7 js not bound by the con- 

clusions of lower courts, 
but will reexamine the evidentiary 
basis on which those conclusions are 

founded.” 

It is now so well settled that the 
Court was able to speak in Kern- 
Limerick Inc. v Scurlock, 347 US 
110, 121, 98 1. ed 546, 556, 74 S Ct 
403, of the “long course of judicial 
construction which establishes as a 

principle that the duty rests on this 
Court to decide for itself facts or 

constructions upon which federal 
constitutional issues rest.”t* As 

  

4. See, e.g., Payne v Arkansas, 356 US 
560, 562, 2 I. ed 24 075, 977, 8B S Ct 

844; Leyra v Denno, 347 US 556, 558, 98 
L ed 948, 950, 74 S Ct 716; Avery v 

Georgia, 345 US 559, 561, 97 L ed 1244, 
1247, 78 S Ct 891; Feiner v New York, 

340 US 815, 322, 323, note 4, 95 L ed 
205, 801, 71 S Ct 303, 328 (dissenting 

previo 

Headnoté 

by the 
tion of 
effect ¢ 
Accord 
must b 

Reve 

opinion) 
283, 94 
v Ohio, 
228, 68 
324 US 
S Ct 78 
143, 149 
Ward v 

ed 1663 

Texas, 

61 S Ct 
US 412, 
667. Sd 

354 US 
S Ct 13 
Califor 

880, 72 

 



TS 3Led2d 

e bound by its deter. 
the false testimony 

ny reasonable likeli- 
cted the judgment of 
State relies on Hysler 
US 411, 86 L ed 932, 
But in that case the 
y that a state stand- 
ty and substantiality 
rations of federal con- 

brivations would be 
this Court made its 

lent examination” of 
‘there to determine if 
act met the Florida 
dard. The duty of 

5 Court to make its 
independent ex- 

e record when federal 
deprivations are al- 
resting, as it does, on 
ponsibility for main- 
onstitution inviolate. 
er (US) 1 Wheat 304, 
er v Aaron, 358 US 1, 

360 US 272] 

8 S Ct 1401. -*This 
well stated in Nie- 
and, 340 US 268, 271, 
70, 71 S Ct 325, 328: 
which there is a claim 
hts under the Federal 
stitution, this Court 
ot bound by the con- 
jons of lower courts, 
mine the evidentiary 
those conclusions are 

well settled that the 
le to speak in Kern- 

v Scurlock, 347 US 

ed 546, 556, 74 S Ct 

bng course of judicial 

‘hich establishes as & 

he duty rests on this 

je for itself facts or 

upon which federal 

issues rest.’* As 
  

  

550. 561, 97 L ed 1244, 

91; Feiner v New York, 

, 323, note 4, 95 L ed 

Ct 303, 328 (dissenting 

NAPUE v ILLINOIS 1223 
360 US 264,3 L ed 2d 1217, 79 S Ct 1173 

previously indicated, our own evalu- 
ation of the record here 

Headnote 8 compels us to hold that 
the false testimony used 

by the State in securing the convic- 
tion of petitioner may have had an 
effect on the outcome of the trial. 
Accordingly, the judgment below 
must be 

Reversed. 

NOTE 

An annotation on “Conviction on 
testimony known to prosecution to be 
perjured as denial of due process” ap- 
pears p. 1991, infra. 

  

opinion); Cassell v Texas, 339 US 282, 
283, 94 L ed 839, 845, 70 S Ct 629; Haley 

v Ohio, 332 US 596, 599, 92 L ed 224, 
228, 68 S Ct 302; Malinski v New York, 

324 US 401, 404, 89 L ed 1029, 1032, 65 

S Ct 781; Ashcraft v Tennessee, 322 US 

148, 149, 88 L ed 1192, 1196, 64 S Ct 921; 
Ward v Texas, 316 US 547, 550, 86 L 

ed 3663, 1665, 62 S Ct 1139: Smith v 
Texas, 311 US 128, 130, 85 L ed 84, 86, 
61 S Ct 164; South Carolina v Bailey, 289 
US 412, 420, 77 L ed 1282, 1296, 53 S Ct 

667. See also, e.g., Roth v United States, 
354 US 476, 497, 1 L ed 2d 1498, 1514, 77 

S Ct 1304 (dissenting opinion); Stroble v 
California, 343 US 181, 190, 96 L ed 872, 
880, 72 S Ct 599; Sterling v Constantin, 

287 US 378, 398, 77 L ed 375, 385,53 S Ct 
180; Southern P. Co. v Schuyler, 227 US 
801, 611, 37 1. ed 662, 669, 33 S Ct 277, 

43 LRA NS 901; Creswill v Grand Lodge, 

K. of P. 225 US 246, 261, 56 L ed 1074, 
1080, 32 S Ct 822. 

Mr. Justice Holmes, writing for the 
Court, recognized the principle over 35 
years ago in Davis v Wechsler, 263 US 22, 

24, 68 L ed 143, 146, 44 S Ct 13: 

“If the Constitution and laws of the 
United States are to be enforced, this 
Court cannot accept as final the decision 
of a state tribunal as to what are the 
facts alleged to give rise to the right 
or to bar the assertion of it even upon 
local grounds.” 

 



      
    

        

    

   
   

    

   

  

        

   

           
    
            
        
         
   

    
   

2 

TS 10 Led 2d 

siana, I would af- 

  

ual treatment will re- 
lications of the Act. Cf. 

o. v Johnson, 292 US 
1141, 1148, 564 S Ct 576 

  

     
         

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I
 

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v0
 

5a 

*[373 US 83] 

*JOHN L. BRADY, Petitioner, 

v 

STATE OF MARYLAND 

8373 US 83, 10 LL ed 24 215, 83 S Ct 1194 

[No. 490] 

Argued March 18 and 19, 1963. Decided May 13, 1963. 

SUMMARY 

After the petitioner had been convicted in a Maryland state court on 
a charge of murder in the first degree (committed in the course of a 

robbery) and had been sentenced to death, he learned of an extrajudicial 

confession of his accomplice, tried separately, admitting the actual homi- 

cide. This confession had been suppressed by the prosecution notwith- 

standing a request by the petitioner’s counsel to allow him to examine 
the accomplice’s extrajudicial statements. Upon appeal from the trial 
court’s dismissal of his petition for postconviction relief, the Maryland 
Court of Appeals held that suppression of the evidence by the prosecution 
denied petitioner due process of law, and remanded the case for a retrial 
of the question of punishment only. (226 Md 422, 174 A2d 167.) 

On certiorari, the United States Supreme Court affirmed. In an opinion 
by DOUGLAS, J., expressing the views of six members of the Court, it was 
held that (1) the prosecution’s suppression of the accomplice’s confes- 
sion violated the due process clause of the Fourteenth Amendment, but 
(2) neither that clause nor the equal protection clause of that amendment 
was violated by restricting the new trial to the question of punishment. 

WHITE, J., concurred in a separate opinion, expressing the view that 
the Court should not have reached the due process question which it de- 
cided. He concurred in the Court’s disposition of petitioner’s equal pro- 

tection argument. 

HARLAN, J., joined by BLACK, J., dissented, expressing the view that 

because of uncertainty in the pertinent Maryland law and because the 

Maryland Court of Appeals did not in terms address itself to the equal 

protection question, the judgment below should have been vacated and the 

case remanded to the Court of Appeals for further consideration. 

HEADNOTES 

Classified to U. S. Supreme Court Digest, Annotated    

  ‘Appeal and Error § 95 — finality of 
state court judgment. 

1. A decision of the highest court 
of a state in which the trial court's 

dismissal of a prisoner’s petition for 
postconviction relief was reversed on 
the ground that suppression of the 

evidence by the prosecution denied



UTS 10 Led 2d 

as of fact, under Mary- 
the court and not the 

s on the admissibility 

rtinent to the issue of 

iit of the accused. 

§ 74 — postconviction 
i — construction of 

( judgment. 
it in a state court judg- 
the trial court’s dis- 

nrisoner’s petition for 
relief and remanding 
retrial of the question 

that nothing in an ac- 
‘ession suppressed by 

could have reduced the 
e below murder in the 

1 ruling on the admis- 
onfession on the issue 

guilt. 

t.aw §§500, 840.5 — 
's suppression of ac- 
confession — restrict- 

al to question of pun- 

~» due process clause 
rotection clause of the 
'ndment is violated by 

ostricting to the ques- 
nt a new trial granted 
use of the prosecu- 

sn df an accomplice’s 
‘e the state court ruled 
the suppressed confes- 
reduced the accused’s 
urder in the first de- 
2ling on the admissi- 

fession on the issue 
guilt, and under the 
this issue was for the 

iry, to determine. 
tion reference 1] 

‘or petitioner. 
respondent. 

  

ed 2d 1575, 3 L ed 2d 

viction on perjured tes- 
prosecuting authorities 

denial of due process. 

  

TE RET TR ASI 
TT TE 

TE . 

BRADY v MARYLAND 
373 US 83, 10 L ed 2d 215, 83 S Ct 1194 

OPINION OF TIE COURT. 

*[373 US 841] 

*Opinion of the Court by Mr. Jus- 
tice Douglas, announced by Mr. Jus- 

tice Brennan. 

Petitioner and a companion, Boblit, 
were found guilty of murder in the 
first degree and were sentenced to 
death, their convictions being af- 

firmed by the Court of Appeals of 
Maryland. 220 Md 454, 154 A2d 434. 
Their trials were separate, petitioner 
being tried first. At his trial Brady 
took the stand and admitted his 
participation in the crime, but he 
claimed that Boblit did the actual 
killing. And, in his summation to 
the jury, Brady’s counsel conceded 
that Brady was guilty of murder in 
the first degree, asking only that the 
jury return that verdict “without 
capital punishment.” _ Prior to the 
trial petitioner’s counsel had request- 

“ed the prosecution to allow him to 
examine Boblit’s extra judicial state- 
ments. Several of those statements 

~ were shown to him; but one dated 
July 9, 1958, in which Boblit admit- 
ted the actual homicide, was with- 
held by the prosecution and did not 
come to petitioner’s notice until after 
he had been tried, convicted, and 
sentenced, and after his conviction 

= had been affirmed. 

Petitioner moved the trial court 
for a new trial based on the newly 

discovered evidence that had been 
suppressed by the prosecution. Pe- 
titioner’s appeal from a denial of 
that motion was dismissed by the 
Court of Appeals without prejudice 

*[373 US 85] 

to relief under the Maryland *Post 
Conviction Procedure Act. 222 Md 
442, 160 A2d 912. The petition for 
post-conviction relief was dismissed 
by the trial court; and on appeal the 
Court of Appeals held that suppres- ) 
sion of the evidence by the prosecu- 
tion denied petitioner due process 
of law and remanded the case for a 
retrial of the question of punish- 
ment, not the question of guilt. 226 
Md 422, 174 A2d 167. The case is 
here on certiorari, 371 US 812, 9 

L ed 2d 54, 83 S Ct 56.1 

The crime in question was murder 
committed in the perpetration of a 

robbery. Punishment for that crime 
in Maryland is life imprisonment or 
death, the jury being empowered to 
restrict the punishment to life by 

addition of the words “without cap- 
ital punishment.” 3 Md Ann Code, 
1957, Art 27, $413. In Maryland, 

by reason of the state constitution, 
the jury in a criminal case are “the 
Judges of Law, as well as of fact.” 
Art 15, § 5. The question presented 
is whether petitioner was denied a 

  

1. Neither party suggests that the deci- 
sion below is not a “final judgment” within 

the meaning of 28 USC 
Headnote 1 § 1257(3), and no attack on 

the reviewability of the lower 

court’s judgment could be successfully 

maintained. For the general rule that 

“Final judgment in a criminal case means 

sentence. The sentence is the judgment” 

(Berman v United States, 302 US 211, 212, 

82 IL ed 204, 58 S Ct 164) cannot be ap- 

plied here. If in fact the Fourteenth 

Amendment entitles petitioner to a new 

trial on the issue of guilt as well as pun- 
ishment the ruling below has seriously 

prejudiced him. It is the right to a trial 

on the issue of guilt “that presents a seri- 

ous and unsettled question” (Cohen v 

Beneficial Industrial Loan Corp. 337 US 
541, 547, 93 L ed 1528, 15368, 69 S Ct 1221) 

that “is fundamental to the further con- 

duct of the case” (United States v General 
Motors Corp. 323 US 373, 377, 89 L ed 311, 

318, 65S Ct 357, 156 ALR 390). This 

question is “independent of, and unaffected 

by” (Radio Station WOW v Johnson, 326 

US 120, 126, 89 L ed 2092, 2099, 65 S Ct 

1475) what may transpire in a trial at 

which petitioner can receive only a life 
imprisonment or death sentence. It can- 

not be mooted by such a proceeding. See 

Largent v Texas, 3183 US 418, 421, 422, 87 
L ed 873, 876, 63 S Ct 667. Cf. Construc- 
tion & Gencral Laborers’ Union v Curry, 

371 US 542, 549, 9 L ed 2d 514, 519, 82 

S Ct 531.   
 



  

218 U. S. SUPREME COURT REPORTS 

federal right when the Court of Ap- 
peals restricted the new trial to the 
question of punishment. 

*[373 US 86] 

*We agree with the Court of Ap- 
peals that suppression of this confes- 

sion was a violation of 
Headnote 2 the Due Process Clause of 

the Fourteenth Amend- 
ment. The Court of Appeals relied 
in the main on two decisions from 
the Third Circuit Court of Appeals 
—United States ex rel. Almeida v 
Baldi (Pa) 195 F2d 815, 33 ALR2d 
1407, and United States ex rel. 
Thompson v Dye (Pa) 221 F2d 763— 
which, we agree, state the correct 

constitutional rule. 

This ruling is an extension of 
Mooney v Holohan, 294 US 103, 112, 
79 L ed 791, 794, 55 S Ct 340, 98 
ALR 406, where the Court ruled on 
what nondisclosure by a prosecutor 
violates due process: 

“It is a requirement that cannot 
be deemed to be satisfied by mere 
notice and hearing if a State has 
contrived a conviction through the 
pretense of a trial which in truth 
is but used as a means of depriving 
a defendant of liberty through a 
deliberate deception of court and 
jury by the presentation of testi- 
mony known to be perjured. Such 
a contrivance by a State to procure 
the conviction and imprisonment of 
a defendant is as inconsistent with 
the rudimentary demands of justice 
as is the obtaining of a like result 
by intimidation.” 

In Pyle v Kansas, 317 US 213, 215, 
216, 87.1. ed 214, 216, 63 S Ct 1717, 
we phrased the rule in broader 
terms: 

“Petitioner’s papers are inexpertly 
drawn, but they do set forth allega- 
tions that his imprisonment resulted 
from perjured testimony, knowingly 
used by the State authorities to ob- 
tain his conviction, and from the 

deliberate suppression by those same 

  

10 Led 2d 

authorities of evidence favorable to 
him. These allegations sufficiently 

charge a deprivation of rights guar- 
anteed by the Federal Constitution, 
and, if proven, wculd entitle peti- 
tioner to release from his present 
custody. Mooney v Holohan, 294 
YU. S. 103.” 

*[373 US 87] 

*The Third Circuit in the Baldi 
Case construed that statement in 
Pyle v Kansas to mean that the “sup- 
pression of evidence favorable” to 
the accused was itself sufficient to 
amount to a denial of due process. 
195 F24 at 820. In Napue v 
Illinois, 360 US 264, 269, 3 L ed 2d 
1217, 1221, 79-8 Cf 1173, we ex- 
tended the test formulated in Moon- 
ey v Holohan when we said: ‘The 
same result obtains when the State, 
although not soliciting false evi- 
dence, allows it to go uncorrected 
when it appears.” And see Alcorta 
v Texas, 355 US 28, 2 1. ed 24 9, 78 
S Ct 103; Wilde v Wyoming, 362 
US 607, 4 Li ed 2d 985, 80 S Ct 900. 
Cf. Durley v Mayo, 351 US 277, 285, 
100 I, ed 1178, 1185, 76 S Ct 806 
(dissenting opinion). 

We now hold that the suppression 
by the prosecution of evidence favor- 

able to an accused upon 
request violates due proc- 
ess where the evidence 

is material either to guilt or to pun- 
ishment, irrespective of the good 
faith or bad faith of the prosecution. J 

Headnote 3 

The principle of Mooney v Holohan 
is not punishment of society for mis- 
deeds of a prosecutor but avoidance 
of an unfair trial to the accused. 
Society wins not only when the 
guilty are convicted but when crim- 
inal trials are fair; our system of 
the administration of justice suffers 
when any accused is treated unfairly. 
An inscription on the walls of the 
Department, of Justice states the 
proposition candidly for the federal 
domain: “The United States wins 

po
 

  
  

  

its point whenever 

its citizens in the cov 

cution that withhol 

demand of an accuse: 
*[373 US 

available, *would te 
him or reduce the 
shape a trial that b 

the defendant. Tha! 

ecutor in the role of 

a proceeding that d 

with standards of 
though, as in the } 
action is not “the 1 

to use the words © 

Appeals. 226 Md, a 

The question rem: 
titioner was denied 
right when the Co 

restricted his new ti 
tion of punishment. 
of that ruling the C: 

stated: 

“There is consider 
how much good Bol 

confession would hay 

it had been before 
clearly implicated Ba 
one who wanted to + 
tim, Brooks. Bob: 

this statement, also 

him, but he wanted 1 
ing. We cannot put 
place of the jury a 
their views would |! 
whether it did or « 
whether it was Bi 
Boblit’s hands that t 
about the victim’s ne 
would be ‘too dogn 
say that the jury - 
attached any signific 
  

2. Judge Simon E. Sol 

tor General put the ide 
address before the Jud: 

the Fourth Circuit on J: 
“The Solicitor Genera 

he is an advocate; but 
client whose husiness is 

vail in tho Instant case. 
business is not to achi 
establish justice. We : 

 



    

  

S 10 L ed 2d 

‘idence favorable to 
cations sufliciently 
tion of rights guar- 
cderal Constitution, 
would entitle peti- 

© from his present 
ey v Holohan, 294 

3 US 871 

ircuit in the Baldi 
that statement in 
mean that the “sup- 
lence favorable” to 

; itself sufficient to 
nial of due process. 
320. In Napue v 
264, 269, 3 L ed 2d 
S Ct 1173, we ex- 
ormulated in Moon- 
hen we said: “The 
ms when the State, 
oliciting false evi- 

to go uncorrected 
” And see Alcorta 
28,2 Led 2d 9, 78 

x v Wyoming, 362 

.d 985, 80 S Ct 900. 
vo, 351. US 277, 285, . 
1185, 76 S Ct 806 
on), 

hat the suppression 
n of evidence favor- 
‘0 an accused upon 
st violates due proc- 
‘here the evidence 

to guilt or to pun- 
ctive of the good 

. of the prosecution. ; 
- / 

f Mooney v Holohan 
t of society for mis- 
‘utor but avoidance 
‘al to the accused. 
t only »when the 
fed but when crim- 
ir; our system of 
mn of justice suffers 
is treated unfairly. 

n the walls of the 
Tustice states the 
ly for the federal 
‘nited States wins     
  

  

BRADY v MARYLAND 
373 US 83, 10 I. ed 2d 215, 83 S Ct 1194 

  

219 

  

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its point whenever justice is done 
its citizens in the courts.”® A prose- 
cution that withholds evidence on 
demand of an accused which, if made 

*[373 US 88] 

available, *would tend to exculpate 
him or reduce the penalty helps 
shape a trial that bears heavily on 
the defendant. That casts the pros- 
ecutor in the role of an architect of 
a proceeding that does not comport 

with standards of justice, even 
though, as in the present case, his 
action is not “the result of guile,” 
to use the words of the Court of 
Appeals. 226 Md, at 427. 

The question remains whether pe- 
titioner was denied a constitutional 
right when the Court of Appeals 
restricted his new trial to the ques- 
tion of punishment. In justification 
of that ruling the Court of Appeals 
stated: 

“There is considerable doubt as to 
how much good Boblit’s undisclosed 
confession would have done Brady if 
it had been before the jury. It 
clearly implicated Brady as being the 
one who wanted to strangle the vic- 

tim, Brooks. Boblit, according to 
this statement, also favored killing 
him, but he wanted to do it by shoot- 

ing. We cannot put ourselves in the 
place of the jury and assume what 
their views would have been as to 
whether it did or did not matter 
whether it was Brady’s hands or 
Boblit’s hands that twisted the shirt 
about the victim’s neck. . . . [I]t 
would be ‘too dogmatic’ for us to 

say that the jury would not have 
attached any significance to this evi- 

dence in considering the punishment 
of the defendant Brady. 

“Not without some doubt, we con- 
clude that the withholding of this 
particular confession of Boblit’s was 
prejudicial to the defendant Brady. 

“The appellant’s sole claim of 
prejudice goes to the punishment 
imposed. If Boblit’s withheld con- 
fession had been before the jury, 
nothing in it could have reduced the 
appellant Brady's offense below 
murder in the first degree. We, 
therefore, see no occasion to retry 
that issue.” 226 Md 429, 430. (Ital- 
ics added.) 

*[373 US 89] 

*If this were a jurisdiction where 
the jury was not the judge of the 
law, a different question would be 

presented. But since it is, how can 
the Maryland Court of Appeals state 
that nothing in the suppressed con- 
fession could have reduced petition- 
er’s offense “below murder in the 
first degree”? If, as a matter of 
Maryland law, juries in criminal 
cases could determine the admissibil- 
ity of such evidence on the issue 
of innocence or guilt, the question 
would seem to be foreclosed. 

But Maryland’s constitutional pro- 
vision making the jury in criminal 
cases “the Judges of Law’ does not 
mean precisely what it seems to 
say.! The present status of that 
provision was reviewed recently in 
Giles v State, 229 Md 370, 183 A2d 
359, app dismd 372 US 767, 10 L ed 2d 
137, 83 S Ct 1102, where the several 

  

2. Judge Simon E. Sobeloff when Solici- 
tor General put the idea as follows in an 
address before the Judicial Conference of 

the Fourth Circuit on June 29, 1954: 

“The Solicitor General is not a neutral, 

he is an advocate; but an advocate for a 

client whose business is not merely to pre- 
vail in the instant case. My client’s chief 
business is not to achieve victory but to 

establish justice. We are constantly re- 
    

minded of the now classic words penned 

by one of my illustrious predecessors, 
Frederick William Lehmann, that the Gov- 
ernment wins its point when justice is done 

in its courts.” 

3. See Dennis, Maryland’s Antique Con- 
stitutional Thorn, 92 U of Pa IL Rev 34, 

39, 43; Prescott, Juries as Judges of the 
Law: Should the Practice be Continued, 

60 Md St Bar Assn Rept 246, 253-254.    



220 U. S. SUPREME 

  

exceptions, added by statute or 
carved out by judicial construction, 

are reviewed. One of those excep- 

tions, material here, is that “Trial 

courts have always passed and still 
pass upon the admissibility of evi- 
dence the jury may consider on the 
issue of the innocence or guilt of the 
accused.” Id. 229 Md p 383. The 
cases cited make up a long line going 
back nearly a century. Wheeler v 
State, 42 Md 563, 570, stated that 

instructions to the jury were ad- 
visory only, “except in regard to 
questions as to what shall be con- 
sidered as evidence.” And the court 
“having such right, it follows of 

course, that it also has the right 

to prevent counsel from arguing 
against such an instruction.” Bell 
v State, 57 Md 108, 120. And see 
Beard v State, 71 Md 275, 280, 17 

A 1044, 4 LRA 675; Dick v State, 
107 Md 11; 21, 68 A 286, 200. Cf. 
Vogel v State, 163 Md 267, 162 A 
705. 

*[373 US 90] 

*We usually walk on treacherous 
ground when we explore state law,? 

for state courts, state agencies, and 
state legislatures are its final ex- 
positors under our federal regime. 

But, as we read the Mary- 

Headnote 4 Jand decisions, it is the 
court, not the jury, that 

passes on the “admissibility of evi- 

  

COURT REPORTS 10 Led 2d 

dence” pertinent to “the issue of the 
innocence or guilt of the accused.” 
Giles v State, 229 Md 370, 183 A2d 

359, supra. In the present case a 

unanimous Court of Ap- 
Headnote 5 peals has said that noth- 

ing in the suppressed con- 

fession “could have reduced the ap- 
pellant Brady’s offense below murder 
in the first degree.” We read that 

statement as a ruling on the admis- 

sibility of the confession on the issue 
of innocence or guilt. A sporting 

theory of justice might assume that 

if the suppressed confession had 
been used at the first trial, the 
judge’s ruling that it was not ad- 

missible on the issue of innocence 

or guilt might have been flouted by 
the jury just as it might have been 
done if the court had first admitted 
a confession and then stricken it 
from the record.’ But we cannot 
raise that trial strategy to the dig- 
nity of a constitutional right and 

say that the deprival of 
Heanoe 4+ tit defendant of that 

sporting chance through 
*[373 US 91] : 

the use of a *bifurcated trial (cf. 
Williams v New York, 337 US 241, 
93 L ed 1337, 64 S Ct 1079) denies 
him due process or violates the Equal 
Protection Clause of the Fourteenth 
Amendment, 

Affirmed. 

SEPARATE OPINIONS 

Separate opinion of Mr. Justice 
White. 

1. The Maryland Court of Appeals 
declared, “The suppression or with- 

  
4. I'or one unhappy incident of recent 

vintage see Oklahoma Packing Co. v Okla- 

homa Gas & E. Co. 309 US 4, 84 1, ed b2T7, 
60 S Ct 215, that replaced an earlier opin- 

ion in the same case, 309 US T03. 

5. “In the matter of confessions a hybrid 
situation exists. It is the duty of the 

Court to determine from the proof, usually 

taken out of the presence of the jury, if 

they were freely and voluntarily made, 
ete., and admissible. If admitted, the jury 

is entitled to hear and consider proof of 

the circumstances surrounding their ob- 

tention, the better to détermine their 

weight and sufficiency. The fact that the 
Court admits them clothes them with no 
presumption for the jury’s purposes that 

they are cither true or were freely and 

voluntarily made. Ilowever, alter a con- 

fession has been admitted and read to the 
jury the judge may change his mind and 

strike it out of the record. Does he strike 

it out of the jury’s mind?” Dennis, Mary- 

land’s Antique Constitutional Thorn, 92 

U of Pa I. Rev 34, 39. See also Bell v 

State, supra (57 Md at 120); Vogel v 
State, (163 Md at 272). 

T
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3713 1 

holding by the State 

evidence exculpatory i¢ 

is a violation of due pi 

out citing the United 

stitution or the Maryl 

tion which also has a 

clause. We therefor 

sure which Constitution 

by the court below and 

the State, the only pat 

by this portion of 

could even bring the 

it desired to do so. B 

City v Central Sav. ] 

661, 33 L ed 1058, : 

Minnesota Vv National 

Us 551, 84 L ed 920, 

But in any event, the 

petition by the State, 1 

lenged the correctness 

below that a new trial « 

was called for by the 

of due process. In m 

fore, the Court should 

due process questio: 

cides. It certainly 15 

as it may be suggeste: 

it we would have 0 

question, for assum 

below Was correct 

violation of petitione: 

suppression of evide 

question he wants d 

remains, namely, W 

him a new trial on 

punishment deprive 

protection. There I 

question to deal wi! 

of. Bell v Hood, 327 

939, 66 S Ct 3, 

*[373 UN 

*wholly aside from 

question involving 

of evidence. The 1 

makes this unmista’ 

fore dealing with 

    

+ Md Const, Art 23 

v Revere Copper & Ba: 

122 A2d 109; Raymo! 

602, 65 A2d 285; Cou 

Arundel County Vv En; 

A2d 1385, 150 ALR 84 

178 Md 471, 13 A2d 

 



  

10 Led 2d 

0 “Lhe issue of the 
of the accused.” 
Md 370, 183 A2d 

ne present case a 

tous Court of Ap- 
as said that noth- 

‘he suppressed con- 
e reduced the ap- 
conse below murder 

> We read that 
iing on the admis- 
e3sion on the issue 
wuilt. A sporting 

might assume that 
' confession had 
¢ first trial, the 
at it was not ad- 
;sue of innocence 

ve been flouted by 
£ might have been 
had first admitted 
then stricken it 

* But we cannot 
rategy to the dig- 

ntional right and 
at the deprival of 
lefendant of that 
1g chance through 
['S 91] 

furcated trial (ef. 
York, 337 US 241, 
S Ct 1079) denies 
‘violates the Equal 
of the Fourteenth 

1 Court of Appeals 
ppression or with- 
  

v. The fact that the 
clothes them with no 

jury’s purposes that 
or were freely and 

‘lowever, after a con- 

itted and read to the 
hange his mind and 

cord. Does he strike 
ind?” Dennis, Mary- 
:titutional Thorn, 92 

39. See also Bell v 
id at 120); Vogel v 

2) 

  

    

  

   
BRADY v MARYLAND 221 

373 US 83, 10 L ed 2d 215, 83 S Ct 1194 
holding by the Slale of material 
evidence exculpatory to an accused 
is a violation of due process” with- 
out citing the United States Con- 

stitution or the Maryland Constitu- 
tion which also has a due process 
clause. We therefore cannot be 
sure which Constitution was invoked 
by the court below and thus whether 
the State, the only party aggrieved 
by this portion of the judgment, 
could even bring the issue here if 
it desired to do so. See New York 
City v Central Sav. Bank, 306 US 
661, 33 I, ed 1088, 59 8 Ct 590; 
Minnesota v National Tea Co. 309 
US 551, 84 1, ed 920, 60 S. Ct 676. 
But in any event, there is no cross- 
petition by the State, nor has it chal- 
lenged the correctness of the ruling 

below that a new trial on punishment 
was called for by the requirements 
of due process. In my view, there- 
fore, the Court should not reach the 
due process question which it de- 
cides. It certainly is not the case, 
as it may be suggested, that without 
it we would have only a state law 
question, for assuming the court 
below was correct in finding a 
violation of petitioner’s rights in the 
suppression of evidence, the federal 
question he wants decided here still 
remains, namely, whether denying 
him a new trial on guilt as well as 
punishment deprives him of equal 
protection. There is thus a federal 
question to deal with in this Court, 
cf. Bell v Hood, 327 US 678, 90 L ed 

939, 66 S Ct 773,:13 ALR2d4d 383, 
*[373 US 92] 

*wholly aside from the due process 
question involving the suppression 
of evidence. The majority opinion 

makes this unmistakably clear. Be- 
fore dealing with the due process 

issue it says, “I'he question presented 
is whether petitioner was denied a 
federal right when the Court of Ap- 
peals restricted the new trial to the 
question of punishment.” After 
discussing at some length and dis- 
posing of the suppression matter in 
federal constitutional terms it says 
the question still to be decided is 
the same as it was before: “The 
question remains whether petitioner 
was denied a constitutional right 
when the Court of Appeals restricted 
his new trial to the question of pun- 
ishment.” 

The result, of course, is that the 
due process discussion by the Court 
is wholly advisory. 

2. In any event the Court’s due 
process advice goes substantially be- 

yond the holding below. I would 
employ more confining language and 

would not cast in constitutional form 
a broad rule of criminal discovery. 
Instead, I would leave this task, at 
least for now, to the rulemaking or 
legislative process after full congid- 

eration by legislators, bench, and 

bar. 

3. I concur in the Court’s disposi- 
tion of petitioner’s equal protection 

argument. 

Mr. Justice Harlan, whom Mr. 

Justice Black joins, dissenting. 

I think this case presents only 
a single federal question: did the 
order of the Maryland Court of Ap- 
peals granting a new trial, limited 

to the issue of punishment, violate 
petitioner’s Fourteenth Amendment 
right to equal protection? In my 

opinion an affirmative answer would 
  

+ Md Const, Art 23; Home Utilities Co. 
v Revere Copper & Brass, Inc. 209 Md 610, 
122 A2d 109; Raymond v State, 192 Md 

602, 65 A2d 285; County Comrs. of Anne 
Arundel County v English, 182 Md 514, 35 

A2d 135, 150 ALR 842; Oursier v Tawes, 

178 Md. 471, 13 A2d 763. 

1. IT agree with my Brother White that 

there is no necessity for deciding in this 

case the broad due process questions with 

which the Court deals at pp. 218, 219 of its 

opinion.    

 



  

*[373 US 93] 

*be required if the Boblit statement 
would have been admissible on the 
issue of guilt at petitioner’s original 
trial. This indeed seems to be the 
clear implication of this Court's 
opinion. 

The Court, however, holds that 
the Fourteenth Amendment was not 
infringed because it considers the 
Court of Appeals’ opinion, and the 
other Maryland cases dealing with 
Maryland’s constitutional provision 
making juries in criminal cases “the 
Judges of Law, as well as of fact,” 
as establishing that the Boblit state- 
ment would not have been admis- 
sible at the original trial on the 
issue of petitioner’s guilt. 

But I cannot read the Court of 
Appeals’ opinion with any such as- 
surance. That opinion can as easily, 
and perhaps more easily, be read as 
indicating that the new trial limita- 
tion followed from the Court of Ap- 
peals’ concept of its power, under 
§ 645G of the Maryland Post Con- 
viction Procedure Act, Md Code, Art 
27 (1960 Cum Supp) and Rule 870 
of the Maryland Rules of Procedure, 
to fashion appropriate relief meeting 
the peculiar circumstances of this 
case,®? rather than from the view 
that the Boblit statement would have 
been relevant at the original trial 
only on the issue of punishment. 

222 U. S. SUPREME COURT REPORTS 

  

10 Led 2d 

296 Md, at 430, 174 A2d, at 171. 
This interpretation is indeed forti- 
fied by the Court of Appeals’ earlier 
general discussion as to the admis-_ 
sibility of third-party confessions, 
which falls short of saying anything 

*[373 US 94] 

that is dispositive *of the crucial 
issue here. 226 Md, at 427-429, 174 

AZd, at 1703 

Nor do I find anything in any of 
the other Maryland cases cited by 
the Court (ante, pp 219, 220) which 
bears on the admissibility vel non of 
the Boblit statement on the issue of 
guilt. None of these cases suggests 
anything more relevant here than 
that a jury may not “overrule” the 
trial court on questions relating to 
the admissibility of evidence. In- 
deed they are by no means clear as 
to what happens if the jury in fact 
undertakes to do so. In this very 
case, for example, the trial court 
charged that “in the final analysis 
the jury are the judges of both the 
law and the facts, and the verdict 
in this case is entirely the jury’s 
responsibility.” (Emphasis added.) 

Moreover, uncertainty on this 
score is compounded by the State's 
acknowledgment at the oral argu- 
ment here that the withheld Boblit 
statement would have been admis- 
sible at the trial on the issue of 
guilt. 

  

2. Section 645G provides in part: “If 
the court finds in favor of the petitioner, 

it shall enter an appropriate order with 

respect to the judgment or sentence in the 

formér proceedings, and any supplemen- 

‘tary orders as to rearraignment, retrial, 
custody, bail, discharge, correction of sen- 

tence, or other matters that may be nec- 

essary and proper.” Rule 870 provides 

that the Court of Appeals “will either 

affirm or reverse the judgment from which 
the appeal was taken, or direct the manner 

in which it shall be modified, changed or 
amended.” 

3. It is noteworthy that the Court of 
Appeals did not indicate that it was limit- 
ing in any way the authorily of Day v 
State, 196 Md 384, 76 A2d 729. In that 

case two defendants were jointly tried and 

convicted of felony murder. Each admit- 

ted participating in the felony but accused 

the other of the homicide. On appeal the 

defendants attacked the trial court’s denial 
of a severance, and the State argued that 

neither defendant was harmed by the 

statements put in evidence at the joint 
trial because admission of the felony 
amounted to admission of guilt of felony 
murder. Nevertheless the Court of Ap- 
peals found an abuse of discretion and 
ordered separate new trials on all issues. 

4. In response to a question from the 

Bench as to whether Boblit’s statement, 

had it been offered at petitioner’s original 
trial, would have been admissible for all 
purposes, counsel for the State, after some 

8373. U 

In this state of uncer 

the proper answer to 

underlying issue of sta 

+ view of the fact th: 

in, yi +373 US 95] 

of Appeals did not in tei 

itself to the equal pro 

tion, I do not see how ¥ 

SS )  —— 

colloquy, stated: “It wo 
yes.” 

  

  

E
E
N
,
 

oR 

 



     
S 10 Led 2d 

  

y,-174 ‘A2d, at 171, 
ion is indeed forti- 

L of Appeals’ earlier 
on as to the admis- 
l-party confessions, 

. of saying anything 
3 US 94] 
ive *of the crucial 
Md, at 427-429, 174 

anything in any of 
land cases cited by 

, pp 219, 220) which 
~issibility vel non of 
ment on the issue of 
these cases suggests 
relevant here than 
not “overrule” the 

nestions relating to 
y of evidence. In- 
v no means clear as 
5 if the jury in fact 
io so. In this very 
nle, the trial court 
n the final analysis 

» judges of both the 
«ts, and the verdict 
entirely the jury’s 
(Emphasis added.) 

ncertainty on this 
mded by the State’s 
i at the oral argu- 

the withheld Boblit 
( have been admis- 
1al on the issue of 

  

ts were jointly tried and 
y murder. Ilach admit- 
n the felony but accused 
iomicide. On appeal the 
od the trial court’s denial 
d the State argued that 

t was harmed by the 

y evidence at the joint 
mission of the felony 

ission of guilt of felony 
~less the Court of Ap- 

‘huse of discretion and 
new trials on all issues. 
to a question from the 
ther Boblit’s statement, 

| at petitioner’s original 
been admissible for all 
or the State, after some 

  

    
     

    

BRADY v MARYLAND 223 
373 US 83, 10 L ed 2d 215, 83 S Ct 1194 

In this state of uncertainty as to 
the proper answer to the critical 
underlying issue of state law, and 
in view of the fact that the Court 

*1373 US 95] 

of Appeals did not in terms *address 
itself to the equal protection ques- 
tion, I do not see how we can prop- 
  

colloquy, stated: “It would have been, 
yes.” 

erly resolve this case at this junc- 
ture. I think the appropriate course 
is to vacate the judgment of the 

State Court of Appeals and remand 
the case to that court for further 
consideration in light of the govern- 

ing constitutional principle stated 
at the outset of this opinion. Cf. 

Minnesota v National Tea Co. 309 
US 551, 84 L ed 920, 60 S Ct 676.



  

PORTS 2 Led 2d 

t 5 because it had doubt 

violations of the statute 

established through the 

es.” The administrative 

be are advised, has quite 

y reflected the view that 

are banned by the Act. 

al Report, Commissioner 
» US 27 

Br To%6, *pp 45, 46; 

b 49. The fact that the 

agency sought a clarify- 

ing amendment is, there- 

fore, of no significance. 

Yang Sung Vv McGrath, 

B, 47, 94 L ed 615, 627, 

: United States v Turley, 

, 415, note 14, 1 L ed 2d 

7 S Ct 897, 56 ALR2d 

e judgment is reversed 

ase is remanded to the 

ppeals for proceedings in 

with this opinion. 

1. 

NOTE 

ation on “Construction and 

of unfair competition pro- 

k 5 of the Federal Alcohol 

ion Act (27 USC § 205 (a)- 

ars p 1565, infra. 

  

*[355 US 28] = 
*ALARO ALCORTA, Petitioner, 

Vv 

STATE OF TEXAS 

355 US 28, 2 Led2d 9, 78 S Ct 103 

[No. 139] 

Argued October 23, 1957. Decided November 12, 1957. 

SUMMARY 

The defendant was indicted in a Texas state court for murder of his 
wife. Relying on a Texas statute under which killing under the influence of 
a sudden passion arising from an adequate cause was, as murder without 
malice, punishable by a maximum sentence of five years’ imprisonment, he 
claimed that the killing occurred in a fit of passion when he discovered his 
wife kissing a man late at night in a parked car. This man, as a 
witness for the prosecution, gave testimony at the trial which, taken 
as a whole, gave the jury the impression that his relationship with 
the wife was nothing more than that of casual friendship. The de- 
fendant was found guilty of murder with malice and sentenced to death. 
The judgment and sentence were affirmed by the Texas Court of Crim- 
inal Appeals (— Tex Crim —, 294 SW2d 112). Subsequently, the 
witness admitted that he had had sexual intercourse with the wife on 
several occasions and had so informed the prosecutor before trial. The 
defendant’s application for habeas corpus was denied by the trial judge 

and also by the Texas Court of Criminal Appeals. 
On certiorari, the judgment of the Texas Court of Criminal Appeals 

denying the writ of habeas corpus was reversed by the Supreme Court of 
the United States in a Per Curiam opinion. The decision was rested on 
the general rule that the constitutional requirement of due process is not 
satisfied where a conviction was obtained by the presentation of testimony 
known to the prosecuting authorities to be false. 

SUBJECT OF ANNOTATION 

Beginning on page 1575, infra 

Conviction on testimony known to prosecution to be perjured as 
denial of due process 

HEADNOTES 
; Classified to U.S. Supreme Court Digest, Annotated 

Constitutional Law § 840 — due proc- a conviction is obtained by the pres- 
ess — conviction obtained by per- entation of testimony known to the 
jured testimony. prosecuting authorities to be perjured. 

1. The constitutional requirement [See annotation references 1, 2,. 

of due process is not satisfied where and annotation, p. 1575, infra] 

  

ANNOTATION REFERENCES 

1. Unfairness or corruption of officers in 2. Suppression of evidence by prosecu- 
performance of administrative functions in tion in criminal case as vitiating conviction 
civil or criminal cases in state court as in under principles of due process of law, 33 
violation of the Fourteenth Amendment, ALR2d 1421. 
98 ALR 411.  



  

  

10 U. S. SUPREME 

Constitutional Law § 840 — due proc- 
ess — conviction obtained by false 
testimony. 

2. Due process is violated by the 
conviction in a state court of a hus- 
band of murder of his wife, where he 
claimed that the killing occurred in 
a fit of passion when he discovered his 
wife kissing a man late at night in 
a parked car; at defendant’s trial this 

man’s testimony gave the jury the 
false impression that his relationship 

with the wife was nothing more than 

COURT REPORTS 2 Led 2d 

casual friendship; the testimony of 
the witness was elicited by the prose- 
cutor, who knew of the illicit inter- 

course between the witness and the 
wife; and the testimony of the witness 
was seriously prejudicial to the de- 
fendant because, if the latter’s defense 
had been accepted by the jury, his 

offense would have been reduced to 
murder without malice, precluding the 

death penalty imposed upon him. 
[See annotation references 1, 2, 
and annotation, p. 1575, infra] 

APPEARANCES OF COUNSEL 

Fred A. Semaan and Raul Villarreal, both of San Antonio, 
Texas, argued the cause for petitioner. 

Roy R. Barrera and Hubert W. Green, Jr., both of San Antonio, 
Texas, argued the cause for respondent. 

Briefs of Counsel, p. 1574, infra. 

OPINION OF THE COURT 

Per Curiam. 
Petitioner, Alvaro Alcorta, was in- 

dicted for murder in a Texas state 
court for stabbing his wife to death. 
Vernon’s Tex Pen Code, 1948, Art 
1256. He admitted the killing but 
claimed it occurred in a fit of pas- 

*[355 US 29] 

sion when *he discovered his wife, 
whom he had already suspected of 
marital infidelity, kissing one Cas- 
tilleja late at night in a parked car. 
Petitioner relied on Texas statutes 
which treat killing under the influ- 
ence of a “sudden passion arising 
from an adequate cause . . . as 
would commonly produce a degree of 
anger, rage, resentment, or terror in 
a person of ordinary temper suffi- 
cient to render the mind incapable 
of cool refiection” as murder with- 
out malice punishable by a maximum 
sentence of five years’ imprisonment. 
Vernon’s Tex Pen Code, 1948, Arts 
1257a, 1257b, 1257c. The jury, how- 
ever, found him guilty of murder 
with malice and, acting under broad 
statutory authority to determine the 
extent of punishment, sentenced him 
to death. The judgment and sen- 
tence were affirmed by the Texas 
Court of Criminal Appeals. 165 Tex 
Crim —, 294 SW24d 112. 

Castilleja, the only eye witness to 
the killing, testified for the State 
at petitioner’s trial. In response to 
inquiries by the prosecutor about 
his relationship with the petitioner’s 
wife, Castilleja said that he had 
simply driven her home from work 
a couple of times, and in substance 
testified that his relationship with 
her had been nothing more than a 
casual friendship. He stated that 
he had given her a ride on the night 
she was killed and was parked in 
front of her home with his car lights 
out at two o'clock in the morning 
because of engine trouble. The 
prosecutor then asked what had 
transpired between Castilleja and 
petitioner's wife in the parked car: 

“Q. Did you have a conversation 
with Herlinda? 

“A. Yes; she opened the door. 
‘She was going to get off [sic] and, 
then, she told me to tell my sister to 
come and pick her up in the morning 
so she could go to church. : 
-“Q. To tell your sister, Delfina 

Cabrera, to come pick her up in the 
morning so she could go to church? 

“A. Yo3." 
: *[355 US 30] 

*At the conclusion of Castilleja’s  



  

ORTS 2Led2d 

fship; the testimony of 

ras elicited by the prose- 

new of the illicit inter- 
en the witness and the 
testimony of the witness 
prejudicial to the de- 

se, if the latter’s defense 
epted by the jury, his 

i have been reduced to 
ut malice, precluding the 
imposed upon him. 

tation references 1, 2, 
ation, p. 1575, infra] 

of San Antonio, 

bth of San Antonio, 

the only eye witness to 
estified for the State 

s trial. In response to 
the prosecutor about 

ip with the petitioner’s 
eja said that he had 

n her home from work 
imes, and in substance 

his relationship with 
nothing more than a 

iship. He stated that 

her a ride on the night 

ed and was parked in 

ome with his car lights 
h’clock in the morning 

engine trouble. The 

hen asked what had 

etween Castilleja and 

wife in the parked car: 

bu have a conversation 

a? 

she opened the door. 

g to get off [sic] and, 

me to tell my sister to 

k her up in the morning 

go to church. 

ll your sister, Delfina 

ome pick her up in the 

he could go to church? 

*[355 US 30] ok 

inclusion of Castilleja’s   

ALCORTA v TEXAS 11 
355 US 28, 2 L ed 

testimony the following colloquy 
took place between him and the 
prosecutor: 

“Q. Natividad [Castilleja], were 
you in love with Herlinda? 

“A. No. 
“Q. Was she in love with you? 
“A. No. 
“Q. Had you ever talked about 

“A. No. 

“Q. Had you ever had any dates 
with her other than to take her 
home? 

“A. No. Well, inst when 1} 
brought her from there. 

“Q. Just when you brought her 
from work? - 

“A, Yes. 

All this testimony was quite plain- 
ly inconsistent with petitioner's 
claim that he had come upon his wife 
kissing Castilleja in the parked car. 

Some time after petitioner’s con- 
viction had been affirmed Castilleja 
issued a sworn statement in which 
he declared that he had given false 
testimony at the trial. Relying on 
this statement petitioner asked the 
trial court to issue a writ of habeas 
corpus. He contended that he had 
been denied a fair trial in violation 
of State and Federal Constitutions 
because Castilleja had testified false- 
ly, with the knowledge of the prose- 
cutor, that his relationship with pe- 
titioner’s wife had been only “that 
of a friend and neighbor, and that 
he had had no ‘dates,’ nor other re- 
lations with her, when in truth and 
in fact the witness had been her 
lover and paramour, and -had had 
sexual intercourse with her on many 
occasions... . 0 Petitioner fur- 
ther alleged that he had no knowl- 
edge of this illicit intercourse at the 
time of his trial. 

A hearing was held on the peti- 
tion for habeas corpus. Castilleja 
was called as a witness. He con- 
fessed having sexual intercourse 

2d 9, 78 S Ct 108 

with petitioner’s wife on five or six 
*1355 US 31] 

*occasions within the relatively brief 
period before her death. He testi- 
fied that he had informed the prose- 
cutor of -this before trial and the 
prosecutor had told him he should 
not volunteer any information about 
such intercourse but if specifically 
asked about it to answer truthfully. 
The prosecutor took the stand and 
admitted that these statements 
were true. He conceded that he had 
not told petitioner about Castilleja’s 
illicit intercourse with his wife. He 
also admitted that he had not in- 
cluded this information in a writ- 
ten statement taken from Castilleja 
prior to the trial but instead had 
noted it in a separate record. At 
the conclusion of the hearing the 
trial judge denied the petition for 
habeas corpus. Petitioner then ap- 
plied to the Texas Court of Criminal 
Appeals for a writ of habeas corpus 
but that court, acting on the record 
made at the hearing before the trial 
court, also refused to issue the writ. 
We granted certiorari, 353 US 972, 1 
Y1.ed 24 1135, 77S Ct 1063. Texas 
concedes that petitioner has ex- 
hausted all remedies available to him 
under state law. 

Under the general principles laid 
down by this Court in Mooney v 

Holohan, 294 US 103, 79 
Headnote 1 1, ed 791, 55 S Ct 340, 
Headnote 2 98 ALR 406 and Pyle v 

Kansas, 317 US 218, 37 
L ed 214, 63 S Ct 177, petitioner was 
not accorded due process of law. It 

cannot seriously be disputed that 

Castilleja’s testimony, taken as a 

whole, gave the jury the false im- 
pression that his relationship with 
petitioner's wife was nothing more 
than that of casual friendship. This 
testimony was elicited by the prose- 
cutor who knew of the illicit inter- 
course between Castilleja and 
petitioner's wife. Undoubtedly Cas- 
tilleja’s testimony was seriously 

      

 



U. S. SUPREME COURT REPORTS 

prejudicial to petitioner. It tended 
squarely to refute his claim that he 
had adequate cause for a surge of 
“sudden passion” in which he killed 
his wife. If Castilleja’s relationship 
with petitioner's wife had been 
truthfully portrayed to the jury, it 
would have, apart from impeaching 
his credibility, tended to corroborate 
petitioner’s contention that he had 

*[355 US 32] 
found his wife embracing *Castille- 
ja. If petitioner’s defense had been 
accepted by the jury, as it might well 
have been if Castilleja had not been 
allowed to testify falsely, to the 
knowledge of the prosecutor, his 

2Led2d 

offense would have been reduced to 
“murder without malice” precluding 
the death penalty now imposed up- 
on him. : 

The judgment is reversed and the 
cause is remanded to the Court of 

Criminal Appeals of the State of 
Texas for further proceedings not 

inconsistent with this opinion. 

It is so ordered. 

NOTE 

An annotation on “Conviction on tes- 

timony known to prosecution to be per- 
jured as denial of due process” appears 
p 1575, infra. 

 



  

        

+ 

U. S. SUPREME COURT REPORTS 12 L ed 2d 

1 

Alek 
aT yf 

*[277 US 201] 
*WINSTON MASSIAH, Petitioner, : 

v 

UNITED STATES 

S77 US 201, 12 Ll. ed 2d 246, 834 8S Cf 1199 

[No. 199] 

Argued March 3, 1964. Decided May 18{ 1964. 

SUMMARY 

The defendant, after being indicted with other persons for violating . 
the federal narcotics laws, retained a lawyer, pleaded not guilty, and was 
released on bail. While free on bail, the defendant held a conversation 
in the absence of his counsel with one of his codefendants while sitting 
in the latter’s automobile, unaware that the codefendant, co-operating 
with government agents, had allowed the installation of a radio trans- 

mitter under the front seat of the automobile, by means of which a 
federal agent listened to the conversation. At the defendant’s trial in 
the United States District Court for the Southern District of New York, 
the federal agent, over the defendant’s objection, testified to incriminating 
statements made by the defendant during the conversation, and the trial 
resulted in the defendant’s conviction. The United States Court of Ap- 
peals for the Second Circuit affirmed. (307 F2d 62.) 

On certiorari, the Supreme Court of the United States reversed. In 
an opinion by STEWART, J., expressing the views of six members of the 
Court, it was held that under the Sixth Amendment’s guaranty of the 
defendant’s right to assistance of counsel, the defendant’s incriminating 

statements, elicited by government agents after he had been indicted 
and in the absence of his counsel, were not admissible at his trial. 

WHITE, J., joined by CLARK and HARLAN, JJ., dissented on the ground 
that the pretrial statements of a defendant in criminal proceedings should 
be admissible in evidence if voluntarily made and not coerced, and that 
the absence of counsel should be only one of several factors considered 
in judging voluntariness. 

HEADNOTES 

Classified to U. S. Supreme Court Digest, Annotated 

    
Criminal Law § 46.6 — right to assist- 

ance of counsel — secret interro- 
gation 

1. Under the Ifederal Constitution, 
any sceret interrogation of the defend- 
ant, from and after the finding of. the 
indictment, without the protection af- 

forded by the presence of counsel, con- 
travenes the basic dictates of fairness 
in the conduct of criminal causes and 

the fundamental rights of persons 

charged with crime. 
[See annotation references 1, 2]  



   

‘olating 
nd was 
rsation 
sitting 
crating 
trans- 

hich a 

{rial in 
v York, 
mating 

he trial 

of Ap- 

ed." In 
of the 
of the 
inating 
ndicted 

ul. 

ground 
should 

nd that 

sidered 

sel, con- 

fairness 
ses and 
persons 

1, 2) 

  

    MARSSIAH v UNITED STATES 247 
377 US 201, 12 L ed 2d 246, 84 S Ct 1199 

Criminal Law § 46.4 — right to assist- 
ance of counsel — preparation for 
trial 

2. During the period from the time 
of their arraignment until the begin- 
ning of their trial, when consultation, 
thoroughgoing investigation, and prep- 
aration are vitally important, defend- 
ants are as much entitled to aid of 
counsel as at the trial itself. 

[See annotation references 1, 2] 

Criminal Law §46.6; Evidence § 681 
— right to assistance of counsel 
— interrogation after indictment 

3. A defendant in a federal eriminal 
prosecution is denied the basic protec- 
tion of the Sixth Amendment, guaran- 
teeing the defendant’s right to assist- 
ance of counsel, where there is used 
against him at his trial evidence of 
his own incriminating words, which 
federal agents had deliberately elicit- 

ed from him after he had been indicted 
and in the absence of his counsel; such 
rule applies to indirect and surrepti- 
tious interrogations, which elicit in- 
criminating statements without the 
defendant’s knowledge and which are 
conducted while the defendant is free 
on bail, as well as to interrogations 
conducted in the jailhouse. 

[See annotation references 1-4] 

  

Points from Separate Opinion 

Evidence § 681 — illegal search — ad- 
missibility 

4. Evidence seized in an illegal 

search is excluded in criminal prosecu- 

tions, not because of the quality of the 
proof, but to secure meaningful en- 
forcement of the Fourth Amendment, 
[From separate opinion by White, 
Clark, and Harlan, JJ.] 

[See annotation references 5-7] 

Criminal Law § 46; Witnesses §4 — 
compelling testimony 

5. Under the Fifth Amendment, the 
defendant in criminal proceedings 
may not be compelled to testify at his 
trial, but he may if he wishes, and he 
may not be compelled or coerced into 
saying anything before trial. [From 
separate opinion by White, Clark, and 
Harlan, JJ.] 

Evidence § 680 — incriminating state- 
ments made to codefendant — ad- 
missibility 

6. The testimony of a codefendant 

as to incriminating statements made 
to him by the defendant in a criminal 
prosecution while free on bail, or the 
codefendant’s recording of the con- 
versation, is admissible at the defend- 
ant’s trial where there are no prior 
arrangements between the codefend- 
ant and the police. [From separate 
opinion by White, Clark, and Harlan, 
JJ.] i 

Witnesses § 4 — reporting criminal be- 
havior — subpoena 

7. Reporting criminal behavior is ex- 
pected or even demanded of the ordi- 
nary citizen; friends may be sub- 
poenaed to testify about friends, rela- 
tives about relatives, and partners 
about partners. [From separate opin- 
ion by White, Clark, and Harlan, JJ.] 

  

ANNOTATION REFERENCES 

1. Accused’s right to counsel under the 
Federal Constitution. 93 L ed 137, 2 L ed 
2d 1644, 9 L ed 2d 1260. 

2. Accused’s constitutional right to as- 
sistance of counsel. 84 L ed 383. 

3. Admissibility of pretrial confession 
in criminal case. 1 L ed 2d 1735, 4 L ed 
2d 1833. 

4. Admissibility of confession, admis- 
sion, or incriminatory statement of ac- 
cused as affected by fact that it was 

made after indictment and in the absence 
of counsel. 90 ALR2d 732. 

5. Admissibility of evidence obtained by 
illegal search and seizure. 93 L ed 1797, 
96 L ed 145, 98 L ed 581, 100 L ed 239, 
6 L ed 2d 1544. 

6. Federal Constitution as affecting ad- 

missibility of evidence obtained by illegal 
search and scizure. 84 ALR2d 959. 

7. Modern status of rule governing ad- 

missibility of evidence obtained by unlaw- 
ful search and seizure. 50 ALR2d 531.- 

    
  

   
   
   

    

    
    

   

     

    
   
    

  

  

    
  

   

  

   

    

      

     

   
      

          

   

    

   

    

       

        

  

    

     

  

        

            

    
         

      

    
         

         
    

  
 



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U. S. SUPREME COURT REPORTS 

  

  

12 Led 2d 

APPEARANCES OF COUNSEL 

Robert J. Carluccio argued the cause for petitioner. 
Solicitor General Archibald Cox argued the cause for respond- 

ent. : 

Briefs of Counsel, p 1103, infra. 

OPINION OF THE COURT 

Mr. Justice Stewart delivered the 
opinion of the Court. 

The petitioner was indicted for 
violating the federal narcotics laws. 
He retained a lawyer, pleaded not 
guilty, and was released on bail. 
While he Wag Tree on ball a federal 
agent succeeded by surreptitious 
means 1n listening to incriminating 
statements made by him. Evidence 

of these statements was introduced 
against the petitioner at his trial 
over his objection. He was convict- 
ed, and the Court of Appeals af- 
firmed.! We granted certiorari to 

*1377 US 203] 

*consider whether, under the circum- 
stances here presented, the prosecu- 
tion’s use at the trial of evidence 
of the petitioner’s own incriminat- 
ing statements deprived him of any 
right secured to him under the Fed- 
eral Constitution. 374 US 805, 10 
L ed 24 1030, 83 S Ct 1698. 

The petitioner, a merchant sea- 
man, was in 1958 a member of the 
crew of the S.S. Santa Maria. In 
April of that year federal customs 
officials in New York received infor- 
mation that he was going to trans- 
port a quantity of narcotics aboard 
that ship from South America to the 
United States. As a result of this 
and other information, the agents 
searched the Santa Maria upon its 
arrival in New York and found in 
the afterpeak of the vessel five pack- 
ages containing about three and a 
half pounds of cocaine. They also 
learned of circumstances, not here 
relevant, tending to connect the peti- 

tioner with the cocaine. He was 

arrested, promptly arraigned, and 
subsequently indicted for possession 
of narcotics aboard a United States 
vessel? In July a superseding in- 
dictment was returned, charging the 
petitioner and a main named Colson 
with the same substantive oifense, 
and in separate counts charging the 
petitioner, Colson, and others with 
having conspired to possess narcot- 
ics aboard a United States vessel, 
and to import, conceal, and facilitate 
the sale of narcotics. The petition- _ 
er, who had retained a lawyer, 
pleaded not guilty and was released 
on bail, along with Colson. 

A few days later, and quite with- 
out the petitioner’s knowledge, Col- 
son decided to cooperate swith the 
government agents in their continu- 
ing investigation of the narcotics 
activities in which the petitioner, 
Colson, and others had allegedly 
been engaged. Colson permitted an 
agent named Murphy to install a 

*[377 US 203] 

Schmidt radio transmitter *under 
the front seat of Colson’s automo- 
bile,_by means of which Murphy, 
equipped with an appropriate re- 
ceiving device, could overhear from 
some distance away conversations 
carried on in Colson’s car. 

On the evening of November 19, 
1959, Colson and the petitioner held 
a lengthy conversation while sitting 
in Colson’s automobile, parked on 

a New York street. By prearrange- 
ment with Colson, and totally unbe- 
known to the petitioner, the agent 
Murphy sat in a car parked out of 
sight down the steeet-and listened 
  

1. 307 I'2d 62. 
2. 21 USC § 184a. 

    

3. 21 USC §§ 173, 174.   
  

 



  
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MASSIAH v UNITED STATES 249 
377 US 201, 12 L ed 2d 246, 84 S Ct 1199 

over the radio to the entire conversa- 
tion. The petitioner made several 
incriminating statements during the 

course of this conversation. At the 
petitioner’s trial these incrimimating 
statements were brought before the 
jury through Murphy’s testimony, 
despite the insistent objection of de- 
fense counsel. The jury convicted 
the petitioner of several related nar- 
cotics offenses, and the convictions 
were affirmed by the Court of Ap- 

peals.t 

The petitioner argues that it was 

an error of constitutional dimensions 
to permit the agent Murphy at the 
trial to testify to the petitioner’s 
incriminating statements which 
Murphy had overheard under the 
circumstances disclosed by this rec- 

ord. This argument is based upon 

two distinct and independent 
grounds¢” Iirs), we are told that 
Murphy’s use of the radio equip- 
ment violated the petitioner's Tights 
under the Fourth Amendment, and, 

consequently, that all evidence 

which Murphy thereby obtained was, 

under the rule of Weeks v United 

States, 232 US 383, 58 Li ed 652,34 S 
Ct 341, LRA1915B 834, inadmissible 

agajnst the petitioner at the trial. 
Secondly Nit ds. said that the peti- 

*[377 US 2041] 

tioner’s *Fifth and Sixth Amend- 
ment rights were violated by the 
use In evidence against him of in- 

criminating statements which gov- 

ernment agents had _deliberately 

elicited from him after he had been 
indicted and in the absence of his 
retained counsel. Because of the 

way we dispose of the case, we do 
not reach the Fourth Amendment 

issue. 

ln Spano y New York, 360 US 315, 
3 L ed 2d 1265, 79 S Ct 1202, this 
Court reversed a state criminal con- 
viction because a confession had 

been wrongly admitted into evidence 
against the defendant at his trial. 
In that case the defendant had al- 

ready been indicted for first-degree 

murder at the time he confessed. 
The Court held that the defendant’s 
conviction could not stand under the 
Fourteenth Amendment. While the 

Court’s opinion relied upon the total- 
ity of the circumstances under 
which the confession had been ob- 
tained, four concurring Justices 
pointed out that the Constitution 
required reversal of the conviction 
upon. the sole and specific ground 
that the confession had been de- 

liberately elicited by the police after 
the defendant had been indicted, and 
therefore at a time when he was 
clearly entitled to a lawver’s help. 
It was pointed out that under our 

system of justice the most elemental 
concepts of due process of law con- 
template that an indictment be fol- 
lowed by a trial, “in an orderly 

courtroom, presided over by a judge, 
open to the public, and protected by 
all the procedural safeguards of the 
law.” 860 US, at 327 (Stewart, J., 
concurring). It was said that a 
Constitution which guarantees a de- 

fendant the aid of counsel at such 

a trial could surely vouchsafe no less 
to an indicted defendant under in- 

terrogation by the police in a com- 
pletely extrajudicial proceeding. 
Anything less, it was said, might 
deny a defendant “effective repre- 

sentation by counsel at the only 

stage when legal aid and advice 
would help him.” 360 US, at 326 
(Douglas, J., concurring). 

  

4. The petitioner’s trial was upon a sec- 
ond superseding indictment which had been 

returned on March 3, 1961, and which in- 
cluded additional counts against him and 

other defendants. The Court of Appeals 

    

reversed his conviction upon a conspiracy 
count, one judge dissenting, but affirmed 
his convictions upon three substantive 

counts, one judge dissenting. 307 F2d 62. 

   

  

   
    

    

    

     

   
   

    

  

  
  

        

  
  

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. 

250 

Ever since this Court’s decision in 
the Spano case, the New York courts 
have unequivocally followed this 

*[377 US 205] 

constitutional *rule. “Any secret 
interrogation of the de- 
fendant, from and after 
the finding of the indict- 

ment, without the protection afford- 
ed by the presence of counsel, con- 

travenes the basic dictates of fair- 
ness in the conduct of criminal 

Headnote 1 

causes and the fundamental rights 

of persons charged with crime.” 
People v Waterman, 9 NY2d 561, 
565, 175 NE2d 445, 448.% 

This view no more than reflects 
a constitutional principle established 
as long ago as Powell v Alabama, 287 

US 45, 77 L ed 158, 53 S Ct 55, 84 
ALR 527, where the Court noted 

that *. during per- 
haps the most critical 
period of the proceedings 

. . that is to say, from the time 

of their arraignment until the be- 
ginning of their trial, when consulta- 

tion, thoroughgoing investigation 
and preparation [are] vitally impor- 
tant, the defendants . . . [are] 
as much entitled to such aid [of 

counsel] during that period as at the 
{rial iiself.” Id. al 37, 77 Lo ed 164. 
And since the Spano decision the 
same basic constitutional principle 
has been broadly reafiirmed by this 
Court. Hamilton v Alabama, 368 
US 52, 7L ed 2d 114, 32 S.Ct 157; 

White v Maryland, 373 US 59, 10 
Led 2d 193, 83 S Ct 1050. See 
Gideon v Wainwright, 372 US 335, 

9 Led 2d 799, 83 S Ct 792. 

Headnote 2 

;~U. S. SUPREME COURT REPORTS 12 L ed 2d 

Here we deal not with a state 
court conviction, but with a federal 
case, where the specific guarantee 

of the Sixth Amendment directly 
*[377 US 2086] 

applies. Johnson v Zerbst, 304 *US 
458, 82 L ed 1461, 58 S Ct 1019, 
146 ALR 357. fWe hold that the 
petitioner was denied the basic pro- 
tections of that guarantee when 

there was used against 
him at his trial evidence 
of his own incriminating 

words, which federal agents had de- 
liberately elicited from him gaffer he 
had been indicted and in the absence 
of his counsef TUS true that in the 
Spano case the defendant was inter- 
rogated in a police station, while 

here the damaging testimony was 
elicited from the defendant without 
his knowledge while he was free on 
bail. But, as Judge Hays pointed 
out in his dissent in the Court of 
Appeals, “if such a rule is to have 
any efficacy it must apply to indirect 
and surreptitious interrogations as 
well as those conducted in the jail- 
house. In this case, Massiah was 
more seriously imposed upon . 
because he did not even know that 
he was under interrogation by a gov- 

ernment agent.” 307 F2d at 72-73. 

Headnote 3 

The Solicitor General, in his brief 
and oral argument, has strenuously 
contended that the federal law en- 
forcement agents had the right, if 

not indeed the duty, to continue 

their investigation of the petitioner 
and his alleged criminal associates 
even though the petitioner had been 
indicted. He points out that the 

  

5. See also People v Davis, 13 NY2d 
690, 191 NE2d 674, 241 NYS2d 172 (1963); 

People v Rodriguez, 11 NY2d 279, 183 NE 
2d 651, 229 NYS2d 3853 (1962); People 

v Meyer, 11 NY2d 162, 182 NE2d 103, 227 
NYS2d 427 (1962); People v Di Biasi, 7 

NY2d 544, 166 NE2d 825, 200 NYS2d 
21 (1960); People v Swanson, 18 App Div 
2d 832, 237 NYS2d 400 (2d Dept 1963); 

People v Price, 18 App Div 2d 739, 235 

NYS2d 390 (3d Dept 1962); People v Wal- 
lace, 17 App Div 2d 981, 234 NYS2d 579 

(2d Dept 1962); People v Karmel, 17 App 

Div 2d 659, 230 NYS2d 413 (2d Dept 1962); 
People v Robinson, 16 App Div 2d 184, 224 
NYS2d 705 (4th Dept 1962). 

6. “In all criminal prosecutions, the ac- 
cused shall enjoy the right . to have 
the Assistance of Counsel for his defence.” -    



  
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~~ MASSIAH v UNITED STATES 2561 
377 US 201, 12 L ed 2d 246, 84 S Ct 1199 

Government was continuing its in- 
vestigation in order to uncover not 
only the source of narcotics found 
on the S.S. Santa Maria, but also 
their intended buyer. He says that 
the quantity of narcotics involved 
was such as to suggest that the pe- 
titioner was part of a large and well- 
organized ring, and indeed that the 
continuing investigation confirmed 
this suspicion, since it resulted in 
criminal charges ‘against many de- 

fendants. Under. these circumstan- 
ces the Solicitor General concludes 
that the government agents were 
completely “justified in making use 
of Colson’s cooperation by having 

Colson continue his normal associa- 
tions and by surveilling them.” 

We may accept and, at least for 

SEPARATE 

Mr. Justice White, with whom Mr. 
Justice Clark and Mr. Justice Harlan 
join, dissenting. 

The current incidence of serious 
violations of the law represents not 
only an appalling waste of the po- 
tentially happy and useful lives of 
those who engage in such conduct 

but also an overhanging, dangerous 
threat to those unidentified and in- 
nocent people who will be the vic- 
tims of crime today and tomorrow. 
This is a festering problem for 
which no adequate cures have yet 

been devised. At the very least 
there is much room for discontent 
with remedial measures so far un- 
dertaken. And admittedly there re- 
mains much to be settled concerning 
the disposition to be made of those 
who violate the law. 

But dissatisfaction with preven- 
tive programs aimed at eliminating 
crime and profound dispute about 
whether we should punish, deter, re- 
habilitate or cure cannot excuse con- 
cealing one of our most menacing 

problems until the millennium has 

present purposes, completely ap- 
prove all that this argument implies, 

*[377 US 207] 
Fourth *Amendment problems to 
one side. We do not question that in 
this case, as in many cases, it was 

entirely proper to continue an in- 
vestigation of the suspected crim- 
inal activities of the defendant and 
his alleged confederates, even though 
the defendant had already been in- 
dicted. All that we hold is that the 
defendant’s own incriminating state- 
ments, obtained by federal agents 
under the circumstances here dis- 
closed, could not constitutionally be 
used by the prosecution as evidence 
against htm at his trial. ft | 

Reversed. : 1 

OPINION - 

arrived. In my view, a civilized 
society must maintain its capacity 
to discover transgressions of the 
law and to identify those who flout 
it. This much is necessary even to 
know the scope of the problem, much 
less to formulate intelligent coun- 
ter-measures. It will just not do to 
sweep these disagreeable matters 
under the rug or to pretend they are 
not there at all. 

*[377 US 208] 

*It is therefore a rather portentous 
occasion when a constitutional rule 
is established barring the use of evi- 
dence which is relevant, reliable and 
highly probative of the issue which 
the trial court has before it— 
whether the accused committed the 
act with which he is charged. With- 
out the evidence, the quest for truth 
may be seriously impeded and in 
many cases the trial court, although 
aware of proof showing defendant’s 
guilt, must nevertheless release him 
because the crucial evidence is 
deemed inadmissible. This result 
is entirely justified in some circum- - 
stances because exclusion serves 

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252 U: 8. SUPREME COURT REPORTS 

other policies of overriding impor- 
tance, as where evidence 

Headnote 4 gejzed in an illegal search 
is excluded, not because 

of the quality of the proof, but to 
secure meaningful enforcement of 
the Fourth Amendment. Weeks v 
United States, 232 US 383, 58 L ed 
652, 34 S Ct 341, LRA1915B 834; 
Mapp v Ohio, 367 US 643, 6 L ed 2d 
1081, 81 S Ct 1684, 84 ALR2d 933. 
But this only emphasizes that the 
soundest of reasons is necessary to 
warrant the exclusion of evidence 
otherwise admissible and the crea- 
tion of another area of privileged 
testimony. With all due deference, 
I am not at all convinced that the 
additional barriers to the pursuit of 
truth which the Court today erects 
rest on anything like the solid foun- 
dations which decisions of this 
gravity should require. 

The importance of the matter 
should not be underestimated, for 
today’s rule promises to have wide 
application well beyond the facts of 
this case. The reason given for the 
result here—the admissions were 
obtained in the absence of counsel— 
would seem equally pertinent to 
statements obtained at any time 

, to counsel attaches, 
Whether there has been an indict- 
ment or not; to admissions ma 
rior to arraignment, at least where 
the defendant has counsel or asks 

. to the fruits of admissions 
improperly obtained under the new 
rule; to criminal proceedings in state 
courts; and to defendants long since 

*1377 US 209] 

convicted upon evidence *including 
such admissions. The new rule will 
immediately do service in a great 
many cases. 

  

  

  

Whatever the content or scope of 
the rule may prove to be, I am un- 
able to see how this case presents 
an unconstitutional interference 
with Massiah’s right to counsel. 

  

  

12 L ed 2d 

Massiah was not prevented from 

consulting with counsel as often as 
he wished. No meetings with coun- 
sel were disturbed or spied upon. 
Preparation for trial was in no way 
obstructed. It is only a sterile syl- 
logism—an unsound one, besides— 
to say that because Massiah had a 
right to counsel’s aid before and 
during the trial, his out-of-court 
conversations and admissions must 
be excluded if obtained without 
counsel’s consent or presence. The 
right to counsel has never meant as 
much before, Cicenia v Lagay, 357 
US 504, 2 L ed 2d 1523, 78 S Ct 
1297; Crooker v California, 357 US 
433, 2 L ed 2d 1448, 78 S Ct 1287, 
and its extension in this case 
requires some further explana- 
tion, so far unarticulated by the 
Court. 

Since the new rule would exclude 
all admissions made to the police, 
no matter how voluntary and reli- 
able, the requirement of counsels 
presence or gpproval would seem to 
rest upon the probability that coun- 
sel would foreclose any admissions 
at all. This is nothing more than 
a thinly disguised constitutional 
policy of minimizing or entirely pro- 
hibiting the use in evidence of vol- 
untary out-of-court admissions and 
confessions made by the accused. 
Carried as far as blind logic may 
compel some to go, the notion that 
statements from the mouth of the 
defendant should not be used in evi- 
dence would have a severe and un- 
fortunate impact upon the great 
bulk of criminal cases. 

Viewed in this light, the 
Court’s newly fashioned exclu- 
sionary principle goes far beyond 
the constitutional privilege against 

self-incrimination, which neither 
requires nor suggests the barring 

of voluntary pretrial admissions. 

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“MASSIAH v UNITED STATES 253 
377 US 201, 12 L ed 2d 246, 84 S Ct 1199 

The Fifth Amendment states that 
no person “shall be 

compelled in any crimi- 
nal case to be a witness 
*[377 US 210] 

against *himself . . . .” The de- 
fendant may thus not be compelled 
to testify at his trial, but he may 
if he wishes. Likewise he may not 
be compelled or coerced into saying 
anything before trial; but until to- 
day he could if he wished to, and 
if he did, it could be used against 
him. Whether as a matter of self- 
incrimination or of due process, the 

proscription is against compulsion— 
coerced incrimination. Under the 
prior law, announced in countless 
cases in this Court, the defendant’s 
pretrial statements were admissible 
evidence if voluntarily made; inad- 
missible if not the product of his 
free will. Hardly any constitutional 
area has been more carefully pa- 
trolled by this Court, and until now 
the Court has expressly rejected the 
argument that admissions are to be 
deemed involuntary if made outside 
the presence of counsel. Cicenia v 
Lagay, supra; Crooker v California, 
supra.! 

Headnote 5 

The Court presents no facts, no 
objective evidence, no reasons to 
warrant scrapping the voluntary- 
involuntary test for admissibility 
in this area. Without such evidence 
I would retain it in its present form. 

This case cannot be analogized to 
the American Bar Association’s rule 
forbidding an attorney to talk to 
the opposing party litigant outside 
the presence of his counsel. Aside 
from the fact that the Association’s 

canons are not of constitutional di- 
mensions, the specific canon argued 
is inapposite because it deals with 

*[377 US 211] 
the conduct *of lawyers and not with 
the conduct of investigators. Law- 
vers are forbidden to interview the 
opposing party because of the sup- 
posed imbalance of legal skill and 
acumen between the lawyer and the 
party litigant; the reason for the 
rule does not apply to nonlawyers 
and certainly not to Colson, Mas- 
siah’s codefendant. 

Applying the new exclusionary 
rule is peculiarly inappropriate in 
this case. At the time of the con- 
versation in question, petitioner was 
not in custody but free on bail. He 
was not questioned in what anyone 
could call an atmosphere of official 
coercion. What he said was said 
to his partner in crime who had also 
been indicted. There was no sug- 
gestion or any possibility of coer- 

cion. What petitioner did not know 
was that Colson had decided to re- 

port the conversation to 
Headnote 6 the police. Had there 

been no prior arrange- 
ments between Colson and the po- 

lice, had Colson simply gone to the 
police after the conversation had 
occurred, his testimony relating 
Massiah’s statements would be 
readily admissible at the trial, as 
would a recording which he might 

have made of the conversation. In 
such event, it would simply be said 
that Massiah risked talking to a 
friend who decided to disclose what 
he knew of Massiah’s eriminal ac- 

tivities. But if, as occurred here, 
  

1. Today’s rule picks up where the Fifth 

Amendment ends and bars wholly volun- 

tary admissions. I would assume, although 

one cannot be sure, that the new rule 

would not have a similar supplemental 

role in connection with the Fourth Amend- 
ment. While the Fifth Amendment bars 

only compelled incrimination, the Fourth 

‘Amendment bars only unreasonable 

searches. It could be argued, fruitlessly 

I would hope, that if the police must stay 

away from the defendant they must also 
stay away from his house once the right 

to counscl has attached and that a court 

must exclude the products of a reasonable 
search made pursuant to a properly issued 
warrant but without the consent or pres- 
ence of the accused’s counsel 

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254 U. $: SUPREME COURT REPORTS 

Colson had been cooperating with 
the police prior to his meeting with 
Massiah, both his evidence and the. 
recorded conversation are somehow 
transformed into inadmissible evi- 
dence despite the fact that the haz- 
ard to Massiah remains precisely the 
same—the defection of a confed- 
erate in crime. 

Reporting criminal behavior is 
expected or even demanded of 

the ordinary citizen. 
Headnote 7 T'riends may be sub- 

poenaed to testify about 
friends, relatives about relatives and 
partners about partners. I there- 
fore question the soundness of in- 
sulating Massiah from the apostasy 
of his partner in crime and of fur- 
nishing constitutional sanctions for 
the strict secrecy and discipline of 

7377 US 212) 

criminal organizations. *Neither the 

ordinary citizen nor the confessed 
criminal should be discouraged from 
reporting what he knows to the 
authorities and from lending his 
aid to secure evidence of crime. 
Certainly after this case the Colsons 
will be few and far between; and 

the Massiahs can breathe much 
more easily, secure in the knowledge 
that the Constitution furnishes an 
important measure of protection 
against faithless compatriots and 
guarantees sporting treatment for 
sporting peddlers of narcotics. 

Meanwhile, of course, the public 
will again be the loser and law en- 
forcement will be presented with an- 
other serious dilemma. The general 
issue lurking in the background of 
the Court’s opinion is the legitimacy 
of penetrating or obtaining confed- 
erates in criminal organizations. 
For the law enforcement agency, 
the answer for the time being can 
only be in the form of a prediction 
about the future application of to- 
day’s new constitutional doctrine. 
More narrowly, and posed by the 

12 Led 2d 

precise situation involved here, the 
question is this: when the police 
have arrested and released on bail 
one member of a criminal ring and 
another member, a confederate, is 
cooperating with the police, can the 
confederate be allowed to continue 
his association with the ring or must 
he somehow be withdrawn to avoid 
challenge to trial evidence on the 
ground that it was acquired after 
rather than before the arrest, after 
rather than before the indictment? 

Defendants who are out on bail 
have been known to continue their 
illicit operations. See Rogers v 
United States, 325 F2d 485 (CA 
10th Cir.). That an attorney is 
advising them should not constitu- 
tionally immunize their statements 
made in furtherance of these opera- 
tions and relevant to the question 
of their guilt at the pending prose- 
cution. In this very case there is 
evidence that after indictment de- 

*[377 US 213] 

fendant Aiken tried to *persuade 
Agent Murphy to go into the nar- 
cotics business with him. Under 
today’s decision, Murphy may nei- 
ther testify as to the content of this 
conversation nor seize for introduc- 
tion in evidence any narcotics whose 
location Aiken may have made 

known. 

Undoubtedly, the evidence ex- 
cluded in this case would not have 
been available but for the conduct 
of Colson in cooperation with Agent 
Murphy, but is it this kind of con- 
duct which should be forbidden to 
those charged with law enforce- 
ment? It is one thing to estab- 
lish safeguards against procedures 
fraught with the potentiality of co- 
ercion and to outlaw “easy but self- 
defeating ways in which brutality 
is substituted for brains as an in- 
strument of crime detection.” Mec- 
Nabb v United States, 318 US 332, 
344, 87 L ed 819, 826, 63 S Ct 608. 
But here there was no substitution 

  

  

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unles. 

OY 
{
4



utality 
an in- 

* Mec- 
1'S 332, 
{'t 608. 

utution 

  

. 

. MASSIAH v UNITED STATES 255 
377 US 201, 12 L ed 2d 246, 84 S Ct 1199 

of brutality for brains, no inherent 

danger of police coercion justifying 

the prophylactic effect of another 

exclusionary rule. Massiah was not 

being interrogated in a police sta- 

tion, was not surrounded by numer- 

ous officers or questioned in relays, 

and was not forbidden access to 

others. Law enforcement may have 

the elements of a contest about it, 

but it is not a game. McGuire v 
United States, 273 US 95, 99, 71 
L ed 556, 558, 47 S Ct 259. Massiah 

and those like him receive ample 
protection from the long line of 
precedents in this Court holding that 

confessions may not be introduced 

unless they are voluntary. In mak- 

ing these determinations the courts 
must consider the absence of counsel 
as one of several factors by which 
voluntariness is to be judged. See 
House v Mayo, 324 US 42, 45-46, 89 
L ed 739, 741, 742, 66 8 Ct 511; 
Payne v Arkansas, 3566 US 560, 567, 
2 L ed 2d 975, 980, 78 S Ct 844; 
Cicenia v Lagay, supra, 357 US 
at 509, 2 1; ‘ed 24 at 1527. This 
is a wiser rule than the automatic 
rule announced by the Court, 
which requires courts and juries to 
disregard voluntary admissions 
which they might well find to be 
the best possible evidence in dis- 
charging their responsibility for as- 

certaining truth, 

  

  

       



   



U. 8. SUPREME COURT REPORTS 31 L Ed 2d 

Constil 
os 

y Soi 

and ju 
[405 US 150] : presei 

JOHN GIGLIO, Petitioner, is ince 

deman 
\ 

: Const 
UNITED STATES Py 

2.8 
405 US 150, 31 1. Bd 24 104, 92 St Ct 763 of fu 

1 y 

[No. 70-29] a 

Argued October 12, 1971. Decided February 24, ft ) Coil 

SUMMARY Const 
or 

Pending appeal of a forgery conviction in the United States Court of 2: 

Appeals for the Second Circuit, defense counsel discovered new evidence Prose: 

that an Assistant United States Attorney, the first to deal with the ac- evide 

cused’s coconspirator, promised the coconspirator that he would not be tive 

prosecuted if he testified for the government. The government’s case bad J 
depended almost entirely on the coconspirator’s testimony. The District Cons 
Court, in denying the accused’s motion for a new trial, ruled that the . 
promise by the Assistant United States Attorney was unauthorized and 
that its disclosure to the jury would not have affected its verdict. The 
Second Circuit affirmed. 

4. 
witli 
guilt 
nor 

On certiorari, the United States Supreme Court reversed the judgment creat 
of conviction and remanded the case for a new trial. In an opinion by 
BURGER, Ch. J., expressing the unanimous views of the court, it was held 
that (1) the Assistant United States Attorney’s promise was attributable 
to the government; (2) evidence of the agreement or understanding was 
relevant to the coconspirator’s credibility; and (3) the nondisclosure of 
this evidence affecting the coconspirator’s credibility violated due process 
and justified a new trial, irrespective of the government’s good faith or 
bad faith. 

POWELL and REHNQUIST, JJ., did not participate. 

Briefs of Counsel, p 839, infra. 

 



    

763 

24, 1972. 

1 States Court of 
red new evidence 
deal with the ac- 
he would not be 
overnment’s case 
ny. The District 
|, ruled that the 

unauthorized and 

its verdict. The 

sed the judgment 
In an opinion by 
court, it was held 
» was attributable 

rderstanding was 
nondisclosure of 

lated due process 
it’s good faith or 

H
A
T
 

31 L Ed 2d 

  

GIGLIO v UNITED STATES 105 
405 US 150, 31 L Ed 2d 104, 92 S Ct 763 

HEADNOTES 

Classified to U. S. Supreme Court Digest, Annotated 

Constitutional Law § 840 — due proc- 
ess — known false evidence 

1. Deliberate deception of a court 
and jurors in a criminal case by the 

presentation of known false evidence 

is incompatible with the rudimentary 

demands of justice. 

Constitutional Law § 840 — due proc- 
ess — false evidence 

2. A conviction secured by the use 

of false evidence must fall under the 

due process clause where the state, 

although not soliciting the false evi- 

dence, allows it to go uncorrected 

when it appears. 

Constitutional Law § 840 — material 
evidence — suppression - 

3. Under the due process clause, the 

prosecution’s suppression of material 

evidence justifies a new trial irrespec- 

tive of the prosecution’s good faith or 

bad faith. 

Constitutional Law § 840 — evidence 
— nondisclosure 

4. When the reliability of a given 
witness may well be determinative of 

guilt or innocence, the prosecution’s 

nondisclosure of evidence affecting 

credibility justifies a new trial, under 

the due process clause, irrespective of 
the prosecution’s good faith or bad 

faith. 

Constitutional Law § 840 — due proc- 
ess — suppressed evidence 

5. The due process clause does not 

automatically require a new trial 

whenever the combing of the prosecu- 

tor’s files after the trial has disclosed 

evidence possibly useful to the defense 

but not likely to have changed the ver- 

dict; a finding of materiality of the 

evidence is required. 

Constitutional Law § 840 — due proc- 

ess — false evidence 

6. Under the due process clause, a 

new trial is required in a criminal case 

if false testimony introduced by the 

state, and allowed to go uncorrected 

when it appeared, could in any reason- 

able likelihood have affected the judg- 

ment of the jury. 

Constitutional Law § 840 — promise of 
nonprosecution — disclosure 

7. In determining whether due proc- 

ess requires a new trial because of an 

Assistant United States Attorney’s 

promise to a coconspirator that he 

  

§ 110 

Conviction on testimony known to 
prosecution to be perjured as denial 
of due process. 2 L Ed 2d 1575, 3 L 
Ed 2d 1991; 98 ALR 411.   

TOTAL CLIENT-SERVICE LIBRARY® REFERENCES 

21 AM JUR 2d, Criminal Law § 225 
US L Ed DIGEST, Constitutional Law § 840 

ALR DIGESTS, Constitutional Law § 669.5; Criminal Law 

L Ep INDEX TO ANNO, Constitutional Law 

ALR QUICK INDEX, Suppression of Evidence or Facts 

FEDERAL QUICK INDEX, Suppression of Evidence 

ANNOTATION REFERENCES . 

Withholding or suppression of evi- 
dence by prosecution in criminal case LY 
as vitiating conviction. 34 ALR3d 16. ;   

  

 



  

U. S. SUPREME COURT REPORTS 

would not he prosecuted if he testified 
a8 a government witness against his 

coconspirator, and the government's 

failure to disclose this promise, neither 
the Assistant United States Attorney’s 

authority nor his failure to inform his 

superiors or his associates is control- 

ling; moreover, whether the nondis- 
closure was a result of negligence or 

design, it is the prosecutor’s responsi- 
bility. 

United States § 54 — United States 
Attorneys — powers 

8. The United States Attorney’s of- 

fice is an entity and as such it is the 
government's spokesman; a promise of 

nonprosecution made to an Assistant 

United States Attorney must be at- 
tributed, for these purposes, to the 
government. 

31 L Ed 2d 

Witnesses § 95 — evidence — promise 
to coconspirator 

9. Evidence of any understanding or 

agreement as to a future prosecution 
of a coconspirator on whose testimony 

the government’s case almost entirely 

depends is relevant to his credibility, 

and the jury is entitled to know of it. 

Constitutional Law § 840 — due proc- 

ess — promise to coconspirator 

10. Due process requires the re- 
versal of a judgment of conviction, 

and a remand for new trial, where the 

government failed to disclose its prom- 

ise to the .accused’s coconspirator, 

upon whose testimony the govern- 

ment’s case almost entirely depended, 

that he would not be prosecuted if he 

testified for the government. 

SYLLABUS BY REPORTER OF DECISIONS 

Petitioner filed a motion for a new 

trial on the basis of newly discovered 

evidence contending that the Govern- 

ment failed to disclose an alleged 

promise of leniency made to its key 
witness in return for his testimony. 

At a hearing on this motion, the As- 

sistant United States Attorney who 
presented the case to the grand jury 

admitted that he promised the witness 

that he would not be prosecuted if he 

testified before the grand jury and at 

trial. The Assistant who tried the case 

was unaware of the promise. Held: 

Neither the Assistant’s lack of authority 

nor his failure to inform his superiors 

and associates is controlling, and the 

prosecution’s duty to present all ma- 

terial evidence to the jury was not ful- 

filled and constitutes a violation of due 

process requiring a new trial. 

Reversed and remanded. 

Burger, C. J., delivered the opinion 

of the Court, in which all Members 

joined, except Powell and Rehnquist, 

JJ., who took no part in the considera- 
tion or decision of the case. 

APPEARANCES OF COUNSEL 

James M. LaRossa argued the cause for petitioner. 
Harry R. Sachse argued the cause for respondent. 
Briefs of Counsel, p 839, infra. 

§ OPINION OF THE COURT 

Mr. Chief Justice Burger deliv- 

ered the opinion of the Court. 

Petitioner was convicted of pass- 

ing forged money orders and sen- 

tenced to five years’ imprisonment. 

While appeal was pending in the 

Court of Appeals, defense counsel 

discovered new evidence indicating 
that the Government 

[405 US 151] 

had failed to 

disclose an alleged promise made to 
TS Rey Wess tar ne would not be 
prosecuted if he testified tor the 
Government. We granted certiorari 
to determine whether the evidence 
not disclosed was such as to require 

a new trial under the due process 
criteria of Napue v Illinois, 360 US 
264, 3 1. Fd 241217, 79-8 Ct 1173 

(1959), and Brady v Maryland, 373 

US 83, 10 1. Ed 24 215, 83 8 Ct 
1194 (1963). 

Key witnas 
erased tad 

pe 0 wnddn't 

Ma sould 

 



   
   
   
   
    
    
     

   

  

    

    

   

i 

" trial, where the 

    

   4% coconspirator, 
mmy the govern- 
aatirely depended, 
# prosecuted if he 
smment. 

   
   
   

  

5] : 

  

= 

: lack of authority 
rm his superiors 
trolling, and the 

present all ma- 

jury was not ful- 
« violation of due 

ew trial. 
ded. 

‘red the opinion 
ch all Members 

and Rehnquist, 
n the considera- 

' case. 

omise made to 
e would not be 
tified for the 
nted certiorari 

" the evidence 
1 as to require 
¢ due process 
linois, 360 US 

798 0Ct 11173 
Vlaryland, 373 

215, 83 S Ct     

prosecution 
¢ testimony 

of conviction, 

  

A
R
R
 

S
S
 
E
S
 

  

    

  

   

GIGLIO v UNITED STATES    107 
405 US 150, 31 L Ed 2d 104, 92 S Ct 763 

The controversy in this case cen- 

ters around the testimony of Robert 

Taliento, petitioner’s alleged cocon- 

spirator in the offense and the onl 

witness linking petitioner with the 

  

  

at trial showed that in June 1966 

officials at the Manufacturers Han- 

over Trust Co. discovered that Tali- 

ento, as teller at the bank, had 

cashed several forged money orders. 

pon questioning by FBI agents, he 

confessed supplying petitioner with 

one of the bank’s customer signature 

cards used by Giglio to forge $2,300 

in money orders; Taliento then 

processed these money orders 

through the regular channels of the 

bank. Taliento related this story 

to the grand jury and petitioner was 

indicted; thereafter, he was named 

as a coconspirator with petitioner 

but was not indicted. 

  

Trial commenced two years after 

indictment. Taliento testified, iden- 

tifying petitioner as the instigator 
  

  

“of the scheme, Defense counsel 

vigorously cross-examined, seeking 

to discredit his testimony by reveal- 

ing possible agreements or arrange- 

ments for prosecutorial leniency: 

  

“[Counsel.] Did anybody tell you 

at any time that if you implicated 
somebody else in this case that you 

yourself would not be prosecuted? 

“[Taliento.] Nobody told me I 

wouldn’t be prosecuted. 

   

    

   

   
   

“Q. They told you you might not 

be prosecuted? 
  

  

“A. I believe I still could be pros- 

ecuted. its pr Sa 
  

[405 US 152] 

“Q. Were you ever arrested in 

his case or charged with anything 

in connection with these money or- 

ders that you testified to? 

“A. Not at that particular time. 

“Q. To this date, have you been 

charged with any crime? 

“A. Not that I know of, unless 

they are still going to prosecute.” 

In summation, the Government at- 

torney stated, “[Taliento] received 

no promises that he would not be 

indicted.” 

The issue now before the Court 

arose on petitioner’s motion for new 

trial based on newly discovered evi- 

dence. An affidavit filed by the Gov- 

ernment as part of its opposition to 

a new trial confirms petitioner’s 

claim that a promise was made to 

Taliento by one assistant, DiPaola,? 

that 1 he testified before the grand 

jury and at trial he would not be 

prosecuted.? DiPaola presented the 

Government's case to the grand jury 

but did not try the case in the Dis- 

trict Court, and Golden, the assist- 

ant who toSKOVer-the case ior trial, 

filed an affidavit stating that DiPaola 

assured him before the trial that no 

promises of immunity had been 

  

  

  

  

  

1. During oral argument in this Court 
it was stated that DiPaola was on the staff 

of the United States Attorney when he 
made the aflidavit in 1969 and remained on 

that stafl' until recently. 

2. DiPaola’s aflidavit reads, in part, as 

follows: 

“It was acoreed that if ROBERT EDWARD 

TALIENTO would testify before the Grand 

Jury as a witness for the Government, . . . 

he would not be . . . indicted. . . . It was 

further agreed and understood that he, 
ROBERT EDWARD TALIENTO, would 

sign a Waiver of Immunity from prosecu-', 
tion before the Grand Jury, and that if he 

eventually testified as a witness for the 
Government at the trial of the defendant, 

JOHN GIGLIO, he would not be prosecut- 

ed.” 

Lr
 

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hy 
Sonam 
wlio didmt 
ny tio cage



    
    

    

    

     

    

    
     

    
    

  

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a
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we 

a
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at
 

108 U.S. SUPREME 
v 4 

made to Taliento.®! JThe United 
[405 US 153] 

States Attorney, Hoey, filed an affi- 
davit stating that he had personally 
consulted with Taliento and his at- 
torney shortly before trial to empha- 
size that Taliento would eebelinitely 

he prosecuted if he did Wot) testify 
and that if he did testify he would 
be obliged to rely on the “good judg- 
ment and conscience of the Gov- 
ernment” ag to whether he would he 
prosecuted, 

Phe Drivtriel Corl did nol ander 

Poder Loy peanlvee Dhe oppor ent copied 
hol weap the wn Anpdiddbant Eadbald 

SRT RH Aarne, Ive oda and 

Cohen, Bud pooovaoddodd ome thie Theory 
that oven iF on (RRR R ETE nl hoon 

de by Ia aoda 1 wien nad an 

thovtead and its disclosure to the 

Jury would not have affected its 
We need not concern our- § verdict. 

selves with the differing versions 
of the events as described by the two 
assistants in their affidavits. The 
heart of the matter is that one As- 
sistant United States Attorney the 
first one who dealt with Taliento— 
now states that he promised Taliento 
that he would not be prosecuted if 
he cooperated with the Government. 

[1-6] As long ago as Mooney Vv 

Holohan, 294 US 103, 112, 79 1. Ed 

791, 794, 55 S Ct 340, 93 ALR 408 
(1935), this Court made clear that 
deliberate deception of a court and 
jurors by the presentation of known 
false evidence is incompatible with 
“rudimentary demands of justice.” 

This was reaffirmed in Pyle v 
Kansas, 317 US 213, 87 L Fd:214. 
63 S Ct 177 (1942). In Napue v 

COURT REPORTS 31 L Ed 2d 

Illinois, 360 US 264, 3 LL Ed 2d 1217, 
79 S Ct 1173 (1959), we said, “[t]he 

same result obtains when the State, 
although not soliciting false evi- 
dence, allows it to go uncorrected 

when it appears.” Id. at 269, 3 L 
Ed 2d at 1221. Thereafter Brady 

v Maryland, 373 US, at 87, 10 L, Ed 
2d at 218, 

{405 US 154] 

BAS CL 1194 (1963), 

held that suppression of materia 
evidence jualifiog on new fyinl “iy 

penpective of Lhe pood Tattle or bad 
[3] [] 

{ieee Faith of the poostecnd bon 

Ane bean Hae Avo baton, aged 

vibe PY hci die bo Cnn dust ea, 

cc Pvodoentton Mane tion and the Do 

ff \\ hon the 

Crebinbilily of on piven we FO Hy 

wall be determinative ol guilt or in- 

nocence,” nondisclosure of evidence 

affecting credibility falls within this 

{ general rule. Napue, supra, at 269, 

"3 L Ed 2d at 1221. We do not, how- 
ever, automatically require a new 

trial whenever “a combing of the 

prosecutors’ files after the trial has 

disclosed evidence possibly useful to 

the defense but not likely to have 

changed the verdict . . .. 2» 

United States v Keogh, 391 F2d 138, 

148 (CA2 1968). A finding of mate- 

riality of the evidence is required un- 
der Brady, supra, at=37,-10 L Ed 

2d at 218. A new trial is required if 

“the false festimony could . . . in 

any reasonable likelihood have af- 
Pe Tek rr 11T or + + + 111" fected the judgment of the jury < 

Cope Bane thon SLE) 

an D 

Ed 2d at 1222. i 
  

3. Golden's affidavit reads, in part, as 
follows: 

“Mr. DiPaolo advised that Mr. 
Taliento had not been granted immunity 

but that he had not indicted him because 

Robert Taliento was very young at the 

time of the alleged occurrence and obvious- 
ly had been overreached by the defendant 
Giglio.” 

  

4. The Hoey affidavit, standing alone, 
contains at least an implication that the 
Government would reward the cooperation 
of the witness, and hence tends to confirm 

rather than refute the existence of some 

understanding for leniency. 

Napue, supra, at 271, 3 L 4 
9 or 

  

(7, 8) 

by this 

thority 
superio 

trolling 

nondi: 

gence 

ity 0} 

ecutor 

guch 

Gover 

one on 

thes 
Hed 

A jst 

(RTE) 

wi 

nnd 

AW 

(R21) 

pro 

esta! 

to 

valli 

evel 

1S



  

   
31L Ed 2d 

4 Ed 2d 1217, 
e said, “[t]he 
en the State, 
g false evi- 

' uncorrected 
at 269, 3 L 

after Brady 
37,101, Bq 

] 

1194 (1963), 
of material 

We trial “ip. 
faith or bad 
ition.” See 
ion, Project 
inal Justice, 
ind the De- 

'. When the 

witness may 

" guilt or in- 
of evidence 

i within this 

pra, at 269, 
lo not, how- 

uire a new 

hing of the 
he trial has 

ly useful to 
ely to have 

91 F24 138, 

ng of mate- 

‘equired un- 

L 10 L Fd 

required if 

I iin 
d have af- 

© the jury 
at 271, 3 L 

  

nding alone, 

‘ion that the 
' cooperation 

Is to confirm 
nce of some 

  

    
  

oF 
IR
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HO
 
i 

SS 
a
 

i
 

e 
Bo

x 
o
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F
S
 
N
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gg 
x 

GIGLIO v UNITED STATES 109 
  

thority nor his failure to inform his 
superiors or his associates is con- 
trolling. Moreover, whether the 
nondisclosure was a result of negli- 
gence or design, it is the responsibil- 
ity of the prosecutor. The pros-   

  

  

ecutor’s office is an entity and as 

such it is the spokesman for the 
Government. A promise made by 
ope attorney must be attributed, Tor 
these purposes, to the Government. 
See Restatement (Second) of 
Agency § 272. See also American 

Bar Association Project on Stand- 
ards for Criminal Justice, Discovery 
and Procedure Before Trial § 2.1(d). 

To the extent this places a burden 
on the large prosecution offices, 
procedures and regulations can be 
established to carry that burden and 
to insure communication of all rele- 
vant information on each case to 
every lawyer who deals with it. 

  

  

[9] Here the Government’s case 

205—US 100, 31 L Ed 

[7,8] In the circumstances shown 

by this record, neither DiPaola’s au- 

2d 104, 92 S Ct 763 

depended almost entirely on Tal- 

iento’s testimony; without it there 
could have been no indictment and 
no evidence to carry the case to the 
jury. Taliento’s credibility as a wit- 
ness was therefore 

[405 US 155] 

an important 
issue in the case, and evidence of 
any understanding or agreement as 
to a future prosecution would be 
relevant to his credibility and the 
jury was entitled to know of it. 

[10] For these reasons, the due 

process requirements enunciated in 

Napue and the other cases cited 

earlier require a new trial, and the 
judgment of conviction is therefore 
reversed and the case is remanded 
for further proceedings consistent 
with this opinion. 

Reversed and remanded. 

Mr. Justice Powell and Mr. Justice 
Rehnquist took no part in the con- 
sideration or decision of this case. 

  

eT 

 



   
3 Led2d 

of habeas 
v United 

d 869,28 S 

urged that 
the Consti- 
id—adjudi- 
which has 
final judg- 

Adherence 
laws . which 
though it 

rent of our 
er’s rights, 
the:vindica- 
‘hrough the 
should dis- 

“1 inasmuch 
final “judg- 
e appellate 

  

  

  

    

*[360 US 264] 

*HENRY NAPUE, Petitioner, 

v 

PEOPLE OF THE STATE OF ILLINOIS 9-0 

860 US 264, 3 Li ed 2d 1217, 79 S Ct 1173 

[No. 583] 

Argued April 30, 1959. Decided June 15, 1959. 

SUMMARY 

At the murder trial of the defendant in an Illinois state court the 
principal state witness testified in response to a question by an attorney 
for the state that he had received no promise of consideration in return 
for his testimony. The state attorney knew that this testimony was false 
but did nothing to correct it. (However, the jury was apprised that a 
public defender had promised to do’ what he could for the witness.) Alleg- 
ing these facts, defendant filed a petition to set aside his conviction, but 
this petition was denied and the denial was affirmed by the Supreme Court 
of Illinois. (13 Ill 2d 566, 150 NE2d 613.) : 
On certiorari, the Supreme Court of the United States unanimously 
reversed the judgment below. In an opinion by WARREN, Ch. J., it was 
held that, under the circumstances described above, the conviction violated 

Wana OT 

the due process clause of the Fourteenth Amendment. 

SUBJECT OF ANNOTATION 

Beginning on page 1991, infra 

Conviction on testimony known to prosecution to be perjured as 
denial of due process 

HEADNOTES 

Classified to U. S. Supreme Court Digest, Annotated 

Constitutional Law § 840 — due proc- 
ess — false evidence. 

1. A conviction obtained through 
use of false evidence, known to be 
such by representatives of the state, 
must fall under the due process clause 
of the Fourteenth Amendment; the 

same result obtains when the state, 
although not soliciting false evidence, 
allows it to go uncorrected when it 
appears. 

[See annotation references 1-3, 
10" and annotation, p. 1991, infra] 

Constitutional Law § 840 — due proc- 
ess — false evidence. 

2. The due process principle that 
..a state may not knowingly use false 
testimony to obtain a tainted convic- 
tion does not cease to apply merely 
because the false testimony goes only 

- to the credibility of the witness. 
[See annotation references 1-3, 
and annotation, p. 1991, infra] 

Constitutional Law § 840 — due proc- 
ess — false evidence. 

3. In applying the rule that a-con- 
  go : : ANNOTATION REFERENCES > 
11, Conviction on testimony known to 
prosecution to be perjured as denial of 

due process, 2 L ed 2d 15675 and 3 L ed 2d 
1091. 

2. Unfairness or et rntion of officers in 
performance of administrative functions 

in civil or criminal cases in state court 

[3 Led2d]—77 

as in violation of the Fourteenth Amend- 
ment, 98 ALR 411. 

3. Suppression of evidence by prosecu- 
tion in criminal case as vitiating convic- 
tion under principles of due process of law, 
33 ALR2d 1421. 

  

P
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1



1218 U. S. SUPREME COURT REPORTS 3 Led2d 

viction obtained through use of false Appeal and Error § 708 — to Supreme 
evidence known to be such by repre- Court — constitutional questions. 
sentatives of the state and permitted 6. It is the duty of the United 
by them to go uncorrected must fall States Supreme Court to make its own 
under the due process clause of the independent examination of the rec- 
Fourteenth Amendment, it is imma- ord when federal constitutional dep- 
terial that the silence of the state rivations are alleged, the duty resting 
representatives was not the result of on the court’s responsibility for main- 
guile or a desire to prejudice. taining the Constitution inviolate. 

[See annotation references 1-3, 
and annotation, p. 1991, infra] 

tion presente 
facts the fai 
to correct the 
ness which hi 
nied petitione 
violation of t! 
ment to thi 

United States 
The recor 

testimony fr: 
facts could 

  
Appeal and Error § 745 — denial of 

right under Federal Constitution   
  

a
           

  

7 — 
a
   

S
E
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E
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E
D
 

REM
 

A
 

is
 

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s 

il
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HC 
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0.

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T
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Constitutional Law § 840 — due proc- 
ess — false evidence. 

4. Where a representative of. the 

state in a criminal trial solicits false 
testimony or permits it to go uncor- 
rected, the fact that the jury was ap- 
prised of other grounds for believing 
that the witness may have had an 
interest in testifying against the de- 
fendant does not turn what is other- 
wise a tainted trial into a fair one.’ 

[See annotation references 1-3, 
and annotation, p. 1991, infra] 

Appeal and Error § 806 — from state 
court — effect of false testimony. 

5. In determining whether a state 
conviction obtained through use of 
false testimony violates the due proc- 
ess clause, the United States Supreme 
Court is not bound by a determina- 
tion by the state court below that the 
false testimony could not in any rea- 

sonable likelihood have affected the 
judgment of the jury. 

[Sce annotation p. 1191, infra] 

— scope and extent of review. 
7. In cases in which there is a claim 

of denial of rights. under the Federal 
Constitution, the Supreme Court of the 
United States is not bound by the con- 
clusions of lower courts, but will re 

examine the evidentiary basis on 
which those conclusions are founded. 

Constitutional Law § 840) — due proc- 
ess — false evidence. 

8. The due process clause of the 
Fourteenth Amendment is violated by 
a state conviction of murder where 
the principal state avitness testified 
in response to a question by an attor- 
ney for the state that he had received 
no promise of consideration in return 

- for his testimony, whereas, in fact, 
the attorney had promised him con- 

sideration and did nothing to correct 
the witness’ false testimony; this is 
so even though the jury was apprised 

that a public defender had promised 
to do what he could for the witness. 

[See annotation references 1-3, 
and annotation, p. 1991, infra] 

: APPEARANCES OF COUNSEL 

George N. Leighton, of Chicago, Illinois, argued the cause for 
petitioner. 

William C. Wines, of Chicago, Illinois, argued the cause for 
respondent. 

Briefs of Counsel, p 1920, infra. 

OPINION OF 

*[360 US 265] 

*Mr. Chief Justice Warren de- 
livered the opinion of the Court. 

At the murder trial of petitioner 
the principal state witness, then 

serving a 199-year sentence for the 
same murder, testified in response 
to a question™Dy The Assistant 

State's Attorney thal he had re- 

THE COURT 

ceived no promise of consideration 
m return for his testimony. The 
Assistant State’s Attorney had in 
fact promised him consideration. bl 
did nothing to correct the witness’ 
false testimony. The jury was ap- 
prised, however, that a public de- 
fender had promised “to do what he 
could” for the witness. The ques | 

(3 Led 2d] 

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murder in q. 
the morning 
a Chicago, I! 
Petitioner Ii 
George Ilan 
Townsend cn 
lounge and a 
to rob thos: 

policeman, 
drew his sci 
firing at the 
that followe: 

the officer v 
the witnex 
wounded. 

Hamer to 1. 

one Webb, 

course Hz 

tried for t 
man, Convi 

and senteun 
quently, Po: 

convicted, 

executed. 

a witness. 

Thereaft 
apprehend: 

1.'In rele 

as follows: 

After Hau 

tioner [the 
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Napue and ' 

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and not the 

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Hamer that 
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3 Led2d 

to Supreme 
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the United 
ake its own 

of the rec- 
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duty resting 

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‘nviolate. 

— denial of 
Constitution 
review. 
re is a claim 
the Federal 

Court of the 
' by the con- 
but will ‘re- 

“basis . on 
‘re founded. 

‘due proc. 

use of! the 
violated by 
rder where 

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hy an attor- 
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ley had in 
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The ques- 

l. edi2d] is 

  

  

    

NAPUE v ILLI? NOIS 1219 
360 US 264, 3 Lied 2d 1217, 79 S Ct 1173 

tion presented is whether on these 
facts the failure of the prosecutor 
to correct the testimony of the wit- 
ness which he knew to be false de- 
nied petitioner due process of law in 
violation of the Fourteenth Amend- 
ment to the Constitution of the 
United States. 

. The record in this Court contains 
testimony from which the following 
facts could have been found. The 
murder in question occurred early in 
the morning of August 21, 1938, in 
a Chicago, Illinois, cocktail lounge. 
Petitioner Henry Napue, the witness 

George Hamer, one Doe and one 
Townsend entered the dimly lighted 
lounge and announced their intention 
to rob t re ; no 
policeman, present in the lounge, 
drew his service revolver and began 
firing at the four men. In the melee 

at followe Send was killed, 
the officer was fatally wounded, and - 
the witness Hamer War serious! 
wounded. Napue and Poe rear 
Hamer to the car where a fifth man, 
one Webb, was waiting. In due 

course Hamer was apprehended, 
tried for urd jce- 
man, convicted on his plea of guilty 
and sentenced fo 199 gas sod 
quently, Poe was apprehended, tried, 
convicted, sentenced to death and 

executed. Hamer was not used as 
a witness. 

Thereafter, petitioner Napue was 
appremended. He was put.on trial 

  

  

   

  

with Hamer bein 
    

  

r the principal wit- 
BS 2650) 

ness *for the "State. Hamer’s tes- 
timony was extremely important 
because the passage of time and the 

dim light in the cocktail lounge made 
eyewitness identification very dif- 
ficult and uncertain, and because 
some pertinent witnesses had left 
the state. On the basis of the evi- 
dence presented, which consisted 

ig rgely of Hamer's testimony, the 
jury returned a guilty verdict and 
DT eto 100 

  

years. 

Finally, the driver of the car, 
Webb, was apprehended. Hamer 
also testified against him. He was 
convicted of murder and sentenced 
to 199 years. 

  

  

Following the conviction of Webb, 
the lawyer who, as former Assistant 
State’s Attorney, had prosecuted 
the Hamer, Poe and Napue cases 
filed a petition in the nature of a 
writ of error coram nobis on behalf 
of Hamer. In the petition he al- 

  

his [Hamer’s] sentence would be 
made and ossible, effectuated.”!    

  

The * “attorney prayed hat the court 
would effect “consummation of the 
compact entered into between the 
duly authorized representatives of 

  

1. In relevant part, his petition read 
as follows: 

["“After Hamer was sentenced your peti- 

tioner [the Assistant State’s Attorney] 
well knowing that identification of Poe, 

Napue and Webb if and when apprehended 

would be of an unsatisfactory character 
and not the kind of evidence upon which 

a jury could be asked to inflict a proper, 

severe penalty, and being unable to de- 

termine in advance whether Poe, Napue 
and Webb would make confessions of their 

participation in the crime, represented to 

Hamer that if he would be willing to co- 
operate with law enforcing officials upon 

the trial of [sic] trials of Poe, Napue and 

Webb when they were apprehended, that 
a recommendation for a reduction of his 

sentence would be made and, if possible, 

effectuated. 

“Before testifying on behalf of the 
State and against Napue, Hamer ex- 
pressed to your petitioner a reluctance to 

cooperate any further unles he were given 

definite assurance that a recommendation 

for reduction of his sentence would be 

made. Your petitioner, feeling that the 

interests of justice required Hamer’s tes- 

timony, again assured Hamer that every 

possible effort would be made to conform 

to the promise previously made to him.” 

       

    
   
   

    

   

   
   

      

   
   

   

  

   
    

   

    

   

     

  

   
   

   
   
    

   
    
     

     

    

    
    

   
    

    

    

    
       

   
   

  

   

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220 U. S. SUPREME COURT REPORTS 

the State of Illinois and George 
Hamer” 

This coram nobis proceeding came 
to The attention of Napue, who there- 
after filed a post-conviction petition, 
in which he alleged that Hamer had 
falsely testified that he had been 
promised no consideration for his 
testimony,? and that the Assistant 
State’s Attorney handling the case 
had known this to be false. ‘A hear- 
ing was ultimately held at which 
the former Assistant State’s Attor- 
Tey testified that he had only prom- 
ised to help Hamer if Hamer’s story 
“about. being a reluctant parfici- 
pant” 1n the robbery was borne out, 
and not merely 1f Hamer would tes- 
tify at petitioner’s trial. He testified 
that in his coram nobis petition on 
Hamer’s behalf he “probably used 
some language that [he] should not 
have used” in his “zeal to do some- 
thing for Hamer” to whom he “felt 
a moral obligation.” The lower 

3 Led2d 

court denied petitioner relief on the 
basis of the attorney’s testimony. 

On appeal, the Illinois Supreme 
Court affirmed on different grounds 
over two dissents. 13 Ill 2d 566, 150 
NE2d 613. It found, contrary to the 
trial court, that the attorney had 
promised Hamer consideration if he 
would testify at petitioner’s trial, a 
finding which the State does not con- 
test here. ' It further found that the 
Assistant State’s Attorney knew 
that Hamer had lied in denying that 

*[360 US 268] 

*he had been promised considordt 
tion. It held, however, that peti- 
tioner was entitled to no relief since 
the jury had already been apprised 
that someone whom Hamer had 
tentatively identified as being a pub- 
lic defender “was going to do what 
he could” in aid of Hamer, and “was 
trying to get-something did” for 

*1360 US 269] 

him.? We granted cer tiorari *to 
  

"8. The alleged false testimony of Hamer 
first ‘occurred on his cross-examination: 

“Q. Did anybody give you a reward or 

promise you a reward for testifying? 
“A. There ain’t nobody promised me 

anything.” 
On redirect examination the Assistant 

State’s Attorney again elicited the same 
false answer. 

“Q. [by the Assistant State’s Attornas 
Have I promised you that I would recom- 
mend any reduction of sentence to any- 

body? 
#A. You did not.” 

3. The following is Hamer’s testimony 
on the subject: 

“Q. [on cross-examination] And didn’t 
you tell him [one of Napue’s attorneys] 
that you wouldn’t testify in this case un- 
less you got some consideration for it? 

“A.. . . Yes, I did; I told him that. 

“Q. What are you sentenced for? 

“A. One hundred and Ninety-Nine Years. 
“Q. You hope to have that reduced, 

don’t you? 
“A. Well, if anybody would help me or 

do anything for me, why certainly I would. 
“Q. Weren't you expecting that when 

you came here today? 
“A, There haven't no one told me any- 

thing, no more than the lawyer. The 

lawyer come in and talked to me a while 
ago and said he was going to do what he 
could. 
.“Q. Which lawyer was that? 

“A. I don’t know; it was a Public De- 
fender. I don’t see him in here. 

“Q. You mean he was from the Public 
Defender’s office? 
“A. I imagine that is where he was 

from, I don’t know. 
“Q. And he was the one who told you 

that? 
“A. Yes, he told me he was Tins 

get something did for me. 
“0. . . And he told you he ‘was 

going to do something for you? 

“A. He said he was going to try toi 

“Q. And you told them Fotis officers] 
you would [testify at the trial of Napue] 

but you expected some consideration for 
it? 

“A. I asked them was there any chance 

of me getting any. The man told me he 

didn’t know, that he couldn’t promise me 
anything. 

“Q. Then you spoke to a lawyer today 
who said he would try to get your Hime 

cut? 
“A. That was this Public Defender. 1 

don’t even know his name. ... .” 

  

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consider 
first’ par 
US 919. 

First, 

viction oO! 

Headnote 

under 1 
Mooney 
Led 79! 
Pyle v 

214,63 

(CA3 I 
York ex 

US 688, 
and Whi 
Led 1 
Jones v 

335, 35¢ 
(CAT V 
Mesaro 
Led: 
result 

though 
allows i: 
appear: 
23 2 1.4% 
States ¢ 
Pa) 221 
rel. Aln 
F2d 81! 

States ¢ 

(DC II 
erally a 

The p 
knowin. 

Headnotle 

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jury’s « 
and re! 

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on the 
imony. 

ipreme 
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56, 150 
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ht +". 'NAPUE 'v ILLINOIS ‘1221 
360 US 2064, 3 L ed 2d 1217, 79 S Ct 1173 

consider the question posed inthe 
first’ paragraph of this opinion, 358 
us 919. 

First, it is established that a con- 
viction obtained through use of false 

evidence, known ‘to be 
‘Headnote 1. such by representatives 

"+ i“of the State, must fall 
aides the' Fourteenth Amendment, 
-Mooney v Holohan, 294 US 108; 79 
L ed 791, 55 S Ct 840, 98 ALR 406; 
‘Pyle v Kansas, 317 US 213, 87 L ed 
214, 63 S Ct 177; Curran v Delaware 
(CA3 Del) 259 F2d 707. See New 

‘York ex rel. Whitman v Wilson, 818 
US. 688, 87 L ed 1083, 63 S Ct 840, 

rand White v Ragen, 324 US 760, 89 
Lred 1348, 65 S Ct 978. Compare 
‘Jones v Kentucky (CA6 Ky) 97 F2d 
-835,°388, with Re Sawyer’s Petition 
(CAT Wis) 229 F2d 805, 809. Cf. 
Mesarosh v United States, 352 US 1, 

JdiLied 2d 1,77 S Ct 1, 9. | The same 
result obtains” when the’ State; al- 
though not soliciting false eviderice, 
allows it to go uncorrected when it 
‘appears. Alcorta v ‘Texas, 355 US 
28,2 Led 2d 9, 78 S Ct 103: United 
States ex rel. Thompson v Dye (CAS 
Pa) 221 F2d 763; United States ex 
rel. ‘Almeida v Baldi (CA3 Pa) 195 
‘F2d 815, 33 'ALR2d ‘1407; United 
States ex rel. Montgomery v Ragen 
-(DC 111) 86 F Supp 382. ‘See ¢en- 
Salle, annotation,’2 L ed 2d 1575. 

"The principle that a State may not 
Sh use false evidence, includ- 

ing false testimony, to 
‘Headnote 2 obtain a tainted convic- 
~(115 41 ~ tion, implicit in any con- 
‘cept’ ‘of ‘ordered liberty, does’ not 
“cease” to apply merely because the 
false ‘testimony goes ‘only 13 the 
‘credibility of the witness. ’ The 
jury’s’ estimate of the truthfulness 
and] reliability of a given. witness 
may well be determinative of guilt 

¥ ‘op nocence, and it 18 upon such 
subtle Tactors as the possible inter- 

est’ of the witness in testifying false-- 
ly that a defendant’s life or liberty 
may.depend.. As stated by the New 

York: Court of Appeals. in a case 
very Similar to this one, People v 

wavvides, 1 NY2d 554, 557, 154 NYS 

2d 885, 887,136 NE2d 853, 854, 855 

“It is of no consequence that the 

falsehood bore upon the witness’ 
credibility rather than directly upon 

defendant’s guilt. = A lie is a: lie, 
+1360. US 270] 

To matter *what its subject, and, 

if.it is in any way relevant to the 

case, the district: attorney has: the 

responsibility and duty to correct 
what he knows to be false and 
elicit ‘the truth. .. =; > That the 

{ Lot ur district. attorney’s::*si- 

Headnote 3  Jence was not the result 

‘ of “guile or a desire to 

prejudice matters little, for its im- 

pact was the same, preventing, as 

it did, a trial that could. in any real 

sense be termed fair.” all Av 

{Second we Jo not believe that ‘the \ 
Po That the jury was apprised of 

other grounds for beliey- 
Hen dnnje Xr: ing that the witness 

"Hamer may have had_ an 

interest in testifying against peti- 

loner turned what was otherwise a 

tainted trial into a fair one. As Mr. 

‘Justice: Schaefer, joined "by Chief 

Justice Davis, rightly put it in his 

dissenting opinion below, ‘13 ‘Ill 2d 

566, 571, 150 NE2d 613, 616: 

“What is overlooked here is that 
Hamer clearly testified that no one 
‘had offered to help him except an 
unidentified lawyer from" the public 

defender’s office.” 4 

. .Had the jury been apprised of the 

true facts, however, it might well 
have concluded that Hamer had 
fabricated testimony: in order to 

curry the favor of the ‘very repre- 

sentative of the State who was pros- 

‘ecuting the case in which Hamer was 
testifying, for. Hamer might have 

believed that. such.a representative 

   

      

  

    
   

  

     

  

    

   

  

   
       

    
   

            

   

  

    

    

   

  

   

    

  

   

        
   
    
      

    
    

    
    

       
   
   

    

    

   
     

        

         

       
       

        

       



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1222 U. S. SUPREME COURT REPORTS 

was in a position to implement (as 
he ultimately attempted to do) any 
promise of consideration. That the 
Assistant State’s Attorney himself 
thought it important to establish 
before the jury that no official source 
had promised Hamer consideration 
is made clear by his redirect ex- 
amination, which was the last tes- 
timony of Hamer’s heard by the 
jury: : 

“Q. Mr. Hamer, has Judge Pry- 
stalski [the trial judge] promised 
you any reduction of sentence? 

*[360 US 271] 

®%¢A. No, sir. 

“Q. Have I promised you that I 
would recommend any reduction of 

- sentence to anybody? 

“A. You did not. [That answer 
was false and known to be so by 
the prosecutor.] 

“Q. Has any Judge of the crimi- 
nal court promised that they [sic] 
would reduce your sentence? 

“A. No, sir. 

“Q. Has any representative of the 
Parole Board been to see you and 
promised you a reduction of sen- 
tence? 

“A. No, sir. 

3 Led2d 

and that we are bound by its deter- 
mination that the false testimony 
could not in any reasonable likeli- 
hood have affected the judgment of 
the jury. The State relies on Iysler 
v Florida, 315 US 411, 86 L ed 932, 
62 S Ct 688. But in that case the 
Court held only that a state stand- 
ard of specificity and substantiality 
in making allegations of federal con- 
stitutional deprivations would be 
respected, and this Court made its 
own ‘independent examination” of 
the allegations there to determine if 
they had in fact met the Florida 

standard. The duty of 
Headnote 6 this Court to make its 

own independent ex- 
amination of the record when federal 
constitutional deprivations are al- 
leged is clear, resting, as it does, on 
our solemn responsibility for main- 
taining the Constitution inviolate. 
Martin v Hunter (US) 1 Wheat 304, 
4 L ed 97; Cooper v Aaron, 358 US 1, 

*[360 US 272] 
31.ed 2d 5, 78 S Ct 1401. *This 
principle was well stated in Nie- 
motko v Maryland, 340 US 268, 271, 
051. ed 267, 270, 71 S Ct 325, 323: 

“In cases in which there is a claim 
of denial of rights under the Federal 

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Accord 

must 1 

Reve 

opinioi 
283, 94 

v Ohio, 

228, 68 

324 Us 
S Ct: 

143, 14: 
Ward © 
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Texas, 

61.S Ct 
US 412 

687. S 

304 US 

S Ct. 1. 

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“Q. Has any representativeof the _ Constitution, this Court 
Governor of the State of Illinois Te*dsete 7 is not bound by the con. 
promised you a reduction of sen- : clusions of lower courts, 
tence? but will reexamine the evidentiary 

5 basis on which those conclusions are 
“A. No, sir.” 

founded.” 
We are therefore unable to agree Tt is now so well settled that the 

with the Illinois Supreme Court 
“ ey Court was able to speak in Kern- 

that “there was no constitutional 1imerick Inc. v: Scurlock. 347.08 

infirmity by virtue of the false state- {70 121. 98 1, ed 546 5560 74 S Ct 

ment.” oh ; ’ 2 

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403, of the “long course of judicial 
Third, the State argues that we construction which establishes as a 

are not free to reach a principle that the duty rests on this 
Headnote 5 factual conclusion differ- Court to decide for itself facts or 

ent from that reached constructions upon which federal 
by the Illinois Supreme Court, constitutional issues” rest.”* As 

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4. See, e.g., Payne v Arkansas, 356 US Georgia, 345 US 559, 561, 97 L ed 1244, 

560, 562, 2 L ed 2d 975, 977, 718 8 Ct 1247, 73 8S Ct 891; Feiner v New York, 

844; Leyra v Denno, 347 US 556, 558, 98 340 US 315, 322, 323, note 4, 95 L ed 
L ed 948, 950, 74 S Ct 716; Avery v 295, 301, 71 S Ct 303, 328 (dissenting 

  

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‘Led 2d 

‘8 deter- 
stimony 
‘le likeli- 
ment of 
n Hysler 
ed 932, 
case the 
e stand- 
antiality 
2ral con- 
ould be 
nade its 
tion” 'of 
'rmine if 
Florida 
duty - of 
nake: its 
nt ex- 

n federal 
are al- 
does, on 

or main- 
‘nviolate. 

eat 304, 

58 US 1, 

*This 
in Nie- 
68, 271, 
25, 328: 
; a claim 
Federal 

ie Court 
the con- 

courts, 
lentiary 
ions are 

that the 
n Kern- 
347 US 
74 S Ct 
judicial 

les as a 

: on this 
facts or 

federal 
"4.3 As 

ed 1244, 
ew York, 

95 L ed 

lissenting 

  

  

NAPUE v ILLINOIS 1225 
360 US 264, 3 L ed 2d 1217, 79 S Ct 1173 

previously indicated, our own evalu- 
ation of the record here 

Headnote 8 compels us to hold that 
the false testimony used 

by the State in securing the convic- 
tion of petitioner may have had an 
effect on the outcome of the trial. 
Accordingly, the judgment below 
must be 

Reversed. 

NOTE 

An annotation on ‘Conviction on 
testimony known to prosecution to be 
perjured as denial of due process” ap- 
pears p. 1991, infra. 

  

opinion); Cassell v Texas, 339 US 282, 

283, 94 L ed 839, 845, 70 S Ct 629; Haley 
v. Ohio, 332 US 596, 5989, 92 I. ed 224, 
228, 68 S Ct 302; Malinski v New York, 

324 US 401, 404, 89 L ed 1029, 1032, 65 
S Ct 781; Ashcraft v Tennessee, 322 US 

143, 149, 88 L ed 1192, 1196, 64 S Ct 921; 
Ward v Texas, 316 US 547, 550, 86 L 
ed 1663, 1665, 62 S Ct 1139; Smith v 
Texas, 311 US 128, 130, 85 L ed 84, 86, 
61'S Ct 164; South Carolina v Bailey, 289 

US 412, 420, 77 L ed 1292, 1296, 53 S Ct 
667. See also, e.g., Roth v United States, 

354 US 476, 497, 1 L ed 2d 1498, 1514, 77 
S Ct 1304 (dissenting opinion); Stroble v 

California, 343 US 181, 190, 96 L ed 872, 
880, 72 S Ct 599; Sterling v Constantin, 

287 US 378, 398, 77 L ed 375, 385, 53 S Ct 
190; Southern P. Co. v Schuyler, 227 US 

601, 611, 57 L ed 662, 669, 33 S Ct 277, 
43 LRA NS 901; Creswill v Grand Lodge, 

K. of P. 225 US 246, 261, 56 L ed 1074, 
1080, 32 S Ct 822, 

Mr. Justice Holmes, writing for the 

Court, recognized the principle over 35 

years ago in Davis v Wechsler, 263 US 22, 
24, 68 L. ed 143, 146, 44 S Ct 13: 

« “If the Constitution and laws of the 

United States are to be enforced, this 
Court cannot accept as final the decision 

of a state tribunal as to what are the 

facts alleged to give rise to the right 
or to bar the assertion of it even upon 
local grounds.” 

      

   

           
   

    

    

    

    

        
     

    

     
   

  

   

   

              

   
   

        

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AHH ET U.S. SUPREME COURT REPORTS 49 L Ed 2d 
LA } 

ny HE \ not been 

Sil perjury, 

Vis i i context © 

Bf beyond : 
4 ES the reco: 

1 i 
£HH MARSH 
AH accused 

ah [427 US 97] was 2 : 
HEHE UNITED STATES, Petitioner, Sanson: 
ai jurors t« 

qi Vv. 
; Ei Hh LINDA AGURS 
a i : : ; 

i fil i : 427 US 97,49 LL Ed 2d 342, 96 S Ct 2392 Cons 

8 ll! disc 
| [No. 75-491] 1a 1h 

Pi Argued April 28, 1976. Decided June 24, 1976. federal 
4 | SUMMARY a 

! Three months after an accused had been convicted of second-degree 
1 murder in a jury trial in the United States District Court for the District of 

1 | Columbia, defense counsel moved for a new trial. Defense counsel asserted 
1 i that (1) the murder victim had a prior criminal record that would have ! 

3 HE further evidenced the victim’s violent character, thus supporting the defense 
; 1 i : argument that the accused had acted in self-defense, (2) the prosecutor had 

JE 1 failed to disclose the victim’s record to the defense, and (3) there was recent 
TA authority that such evidence was admissible even if not known to the 

4 SR defendant. The District Court denied the new trial motion, but rejected the 
i government’s argument that there was no duty to tender the victim’s 
1 HEE criminal record to the defense in the absence of an appropriate request, 
1! holding that even if it were assumed that the evidence was admissible, 

: nevertheless it was not sufficiently material. The United States Court of 
! + 4 i | | Appeals for the District of Columbia reversed (167 App DC 28, 510 F2d 

a 1249). : 

| On certiorari, the United States Supreme Court reversed. In an opinion 
AH by STEVENS, J., expressing the view of seven members of the court, it was 

bi held that (1) for purposes of an accused’s right to a fair trial under the due 
| process clause of the Fifth Amendment for federal criminal trials and under 

ahh the due process clause of the Fourteenth Amendment for state criminal 
} bo trials, a prosecutor had the constitutional duty to volunteer exculpatory 

ho matter to the defense, which duty was governed by a standard under which 
constitutional error would be committed if evidence omitted by a prosecutor \ 

1 Fy created a reasonable doubt about guilt, and (2) in the case at bar, the \ 
4H | prosecutor’s failure to inform the defense counsel about the victim’s crimi- \ 
/ nal record did not deprive the accused of a fair trial under the due process /! 
i a clause of the Fifth Amendment, since (a) the victim’s criminal record had 

342 

| i Briefs of Counsel, p 1337, infra. 

 



   
    

    

    

   

      

     
    

   
   

    

  

   

   
   

     

    

   

  

. if UNITED STATES v AGURS 
427 US 97, 49 L Ed 2d 342, 96 S Ct 2392 

not been requested and did not arguably give rise to any inference of 
perjury, (b) the trial judge, after considering the omitted evidence in the aN 
context of the entire record, had remained convinced of the accused’s guilt [EPS by 
beyond a reasonable doubt, and (c) the trial judge’s firsthand appraisal of : 
the record was thorough and entirely reasonable. 

  

MARSHALL, J., joined by BRENNAN, J., dissented on the ground that the 
accused in the case at bar had the burden of demonstrating only that there 115} 
was a significant chance that the withheld evidence, developed by skilled iid 
counsel, would have induced a reasonable doubt in the minds of enough [1 = 
jurors to avoid a conviction. er 

      

HEADNOTES 

Classified to U. S. Supreme Court Digest, Lawyers’ Edition 
Constitutional Law § 840 — due proc- provide defense counsel with information 

ess — fair trial — prosecutor's regarding the murder victim's arrest rec- ie 
disclosure of evidence ord, which information would have i RE 

la, 1b. A prosecutor’s failure, in a tended to support the defense argument ; 
federal murder trial before a jury, to that the accused acted in self-defense, 

a
 

a 

        

  

  

  

  

Ties : TOTAL CLIENT-SERVICE LIBRARY® REFERENCES CHE 
ict of 16 AM Jur 2d, Constitutional Law §578; 21 “Am Jur 2d, Ee arted : Criminal Law § 225; 63 Am Jur 2d, Prosecuting Attorneys re have i § 27 

a 8 AM Jur PL & Pr Forms (Rev ed), Criminal Procedure, 
cent ! Forms 281 et seq. 

v' the : 7 AM Jur TriaLs 477, Homicide 
| the : USCS, Constitution, 5th and 14 Amendments 
.im’s US L Eb Digest, Constitutional Law § 840 
Sing : ALR Digests, Constitutional Law § 669.5 
: © ' L Ep INDEX TO ANNOS, District Attorneys; Due Process of rt of ; : F2d : Law; Fair Trial 

ALR Quick INDEX, District and Prosecuting Attorneys; Due 
a Process of Law; Fair Trial 
hop FEDERAL Quick INDEX, District and Prosecuting Attorneys; 
dug & Fair Trial; United States Attorneys 
1der : 
inal ANNOTATION REFERENCES $ | 

tory ; Accused’s right to counsel under the Federal Constitution. 93 L Ed 137, 2 L Ed ad 4 
hich 7 2d 1644, 9 L Ed 2d 1260, 18 L Ed 2d 1420. Fi fl i ; 
ator : Conviction on testimony known to prosecution to be perjured as denial of due ! i the : process. 2 L Ed 2d 1575; 3 L Ed 2d 1991. : . i 
imi- : Withholding or suppression of evidence by prosecution in criminal case as 

vitiating conviction. 34 ALR3d 16. :           

 



          
  

      

  
    

  

U.S. SUPREME COURT REPORTS 49 L Ed 2d 

SYLLABUS BY REPORTER OF DECISIONS 

Respondent was convicted of second- 

degree murder for killing one Sewell 

with a knife during a fight. Evidence at 

the trial disclosed, inter alia, that Se- 

well, just before the killing, had been 

carrying two knives, including the one 

with which respondent stabbed him, that 

he had been repeatedly stabbed, but that 
respondent herself was uninjured. Subse- 
quently, respondent’s counsel moved for 

a new trial, asserting that he had discov- 

ered that Sewell had a prior criminal 
record (including guilty pleas to charges 
of assault and carrying a deadly weapon, 
apparently a knife) that would have 

tended to support the argument that 
respondent acted in self-defense, and 

that the prosecutor had failed to disclose 

this information to the defense. The Dis- 

trict Court denied the motion on the 
ground that the evidence of Sewell’s 

criminal record was not material, be- 

cause it shed no light on his character 
that was not already apparent from the 

uncontradicted evidence, particularly the 
fact that he had been carrying two 

knives, the court stressing the inconsist- 

ency between the self-defense claim and 

the fact that Sewell had been stabbed 
repeatedly while respondent was un- 

scathed. The Court of Appeals reversed, 

holding that the evidence of Sewell’s 

criminal record was material and that 

its nondisclosure required a new trial 

because the jury might have returned a 

different verdict had the evidence been 
received. Held: The prosecutor’s failure 

to tender Sewell’s criminal record to the 

defense did not deprive respondent of a 

fair trial as guaranteed by the Due Proc- 
ess Clause of the Fifth Amendment, 

where it appears that the record was not 

requested by defense counsel and gave 

rise to no inference of perjury, that the 

trial judge remained convinced of re- 

spondent’s guilt beyond a reasonable 
& 

doubt after considering the criminal rec- 
ord in the context of the entire record, 

and that the judge’s firsthand appraisal 

of the entire record was thorough and 

entirely reasonable. Mooney v Holohan, 

294 US 103, 79 L Ed 791, 55 S Ct 340, 98 
ALR 406; Brady v Maryland, 373 US 83, 
10 L Ed 2d 215, 83 S Ct 1194, distin- - 
guished. 

(a) A prosecutor does not violate the 
constitutional duty of disclosure unless 

his omission is sufficiently significant to 

result in the denial of the defendant’s 

right to a fair trial. 

(b) Whether or not procedural rules 
authorizing discovery of everything that 

might influence a jury might be desira- 

ble, the Constitution does not demand 

such broad discovery; and the mere pos- 

sibility that an item of undisclosed infor- 

mation might have aided the defense, or 

might have affected the outcome of the 

trial, does nqt establish “materiality” in 

the constitutional sense. 
(c) Nor is the prosecutor’s constitu- 

tional duty of disclosure measured by his 

moral culpability or willfulness; if the 

suppression of evidence results in consti- 

tutional error, it is because of the char- 

acter of the evidence, not the character 

of the prosecutor. 

(d) The proper standard of materiality 
of undisclosed evidence, and the stan- 

dard applied by the trial judge in this 

case, is that if the omitted evidence cre- 

ates a reasonable doubt of guilt that did 

not otherwise exist, constitutional error 

has been committed. 
167 US App. DC 28, 510 F2d 1249, re- 
versed. 

Stevens, J., delivered the opinion of 

the Court, in which Burger, C. J., and 
Stewart, White, Blackmun, Powell, and 

Rehnquist, JJ., joined. Marshall, J., filed 

a dissenting opinion, in which Brennan, 

J., joined, post, p 114, 49 L Ed 2d, p 356. 

APPEARANCES OF COUNSEL . 

Andrew L. Frey argued the cause for petitioner. 

Edwin J. Bradley argued the cause for respondent. 

Briefs of Counsel, p 1337, infra.  



   

  

   
   

ge criminal rec- 

2 entire record, 
hand appraisal 
3.thorough and 
ney v Holohan, 

55 S Ct 340, 98 
and, 373 US 83, 
061194, distin- 

1 LE 

not violate the 

sclosure unless 

'y' significant to 

the defendant’s 
Hn 

rocedural rules 

verything that 
right be desira- 
»s not demand 
| the mere pos- 
"disclosed infor- 

the defense, or 

outcome of the 

materiality” in 

itor’s constitu- 

ieasured by his 
Ifulness; if the 

sults in consti- 

se of the char- 

t the character 

| of materiality 
and the stan- 

| judge in this 

d evidence cre- 

f guilt that did 

‘itutional error 

F2d 1249, re- 

the opinion of 
ger, C. J., and 
'n, Powell, and 

irshall, J., filed 

vhich Brennan, 
Ed 2d, p 356. 

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UNITED STATES v AGURS 
427 US 97,49 L, Ed 2d 342, 96 S Ct 2392 

OPINION OF THE COURT 

Mr. Justice Stevens delivered the 

opinion of the Court. 

[1a] After a brief interlude in an 

inexpensive motel room, respondent 

repeatedly stabbed James Sewell, 

causing his death. She was convicted 

of second-degree murder. The ques- 

tion before us is whether the prose- 
cutor’s failure 

[427 US 99] 

to provide defense 
counsel with certain background in- 
formation about Sewell, which would 
have tended to support the argu- 
ment that respondent acted in self- 
defense, deprived her of a fair trial 
under the rule of Brady v Maryland, 
373 US 83, 100 L.Ed 2d 215, 83 S Ct 
1194. 

The answer to the question de- 
pends on (1) a review of the facts, (2) 
the significance of the failure of de- 
fense counsel to request the mate- 
rial,” and (3) the standard by which 
the prosecution’s failure to volunteer 
exculpatory material should be 
judged. 

I 

At about 4:30 p.m. on September 
24, 1971, respondent, who had been 
there before, and Sewell, registered 
in a motel as man and wife. They 
were assigned a room without a 
bath. Sewell was wearing a bowie 
knife in a sheath, and carried an- 
other knife in his pocket. Less than 
two hours earlier, according to the 
testimony of his estranged wife, he 
had had $360 in cash on his person. 

About 15 minutes later three mo- 
tel employees heard respondent 
screaming for help. A forced entry 
into their room disclosed Sewell on 
top of respondent struggling for pos- 

  

session of the bowie knife. She was 
holding the knife; his bleeding hand 
grasped the blade; according to one 
witness he was trying to jam the 
blade into her chest. The employees 
separated the two and summoned 
the authorities. Respondent departed 
without comment before they ar- 
rived. Sewell was dead on arrival at 

the hospital. 

Circumstantial evidence indicated 
that the parties had completed an 
act of intercourse, that Sewell had 
then gone to the bathroom down the 
hall, and that the struggle occurred 
upon his return. The contents of his 

pockets were in disarray on the dres- 
ser and no money was found; the 
jury may have inferred that respon- 
dent took Sewell’s money and that 
the fight. started when Sewell re-en- 
tered the room and saw what she 
was doing. 

[427 US 100] 

On the following morning respon- 
dent surrendered to the police. She 
was given a physical examination 

which revealed no cuts or bruises of 
any kind, except needle marks on 
her upper arm. An autopsy of Sewell 
disclosed that he had several deep 

stab wounds in his chest and abdo- 
men, and a number of slashes on his 
arms and hands, characterized by 
the pathologist as ‘‘defensive 

wounds.” 

Respondent offered no evidence. 
Her sole defense was the argument 
made by her attorney that Sewell 
had initially attacked her with the 

knife, and that her actions had all 
been directed toward saving her own 
life. The support for this self-defense 
  

1. The alcohol level in Sewell’s blood whs 
slightly below the legal definition of intoxica- 

tion. 

347 

  

  



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U.S. SUPREME COURT REPORTS 49 L Ed 2d 

theory was based on the fact that 

she had screamed for help. Sewell 
was on top of her when help arrived, 

and his possession of two knives in- 
dicated that he was a violence-prone 
person.’ It took the jury about 25 
minutes to elect a foreman and re- 

turn a verdict. 

Three months later defense coun- 
sel filed a motion for a new trial 
asserting that he had discovered (1) 
that Sewell had a prior criminal 
record that would have further evi- 
denced his violent character; (2) that 

the prosecutor had failed to disclose 
this information to the defense; and 
(3) that a recent opinion of the 
United States Court of Appeals for 
the District of Columbia Circuit 

made it clear that such evidence was 
admissible even if not known to the 
defendant.’ Sewell’s prior record in- 
cluded a plea of guilty to a charge of 

assault and carrying 
[427 US 101] 

a deadly 

weapon in 1963, and another guilty 
plea to a charge of carrying a deadly 
weapon in 1971. Apparently both 
weapons were knives. 

The Government opposed the mo- 

tion, arguing that there was no duty 
to tender Sewell’s prior record to the 
defense in the absence of an appro- 
priate request; that the evidence was 
readily discoverable in advance of 
trial and hence was not the kind of 

“newly discovered” evidence justify- 
ing a new trial; and that, in all 

events, it was not material. 

The District Court denied the mo- 

tion. It rejected the Government’s 
argument that there was no duty to 
disclose material evidence unless re- 

quested to do so,* 
[427 US 102] 

assumed that the 
evidence was admissible, but held 
that it was not sufficiently material. 
The District Court expressed the 
opinion that the prior conviction 
shed no light on Sewell’s character 
that was not already apparent from 
the uncontradicted evidence, particu- 
larly the fact that he carried two 
knives; the court stressed the incon- 
sistency between the claim of self- 
defense and the fact that Sewell had 
been stabbed repeatedly while re- 

spondent was unscathed. 
      

  

    

2. Moreover, the motel clerk testified that 

Sewell’s wife had said he “would use a knife”; 
however, Mrs. Sewell denied making this 
statement. There was no dispute about the 

fact that Sewell carried the bowie knife when 
he registered. 

3. See United States v Burks, 152 US App 
DC 284, 286, 470 F2d 432, 434 (1972). 

4. “THE COURT: What are you saying? 
How can you request that which you don’t 
know exists. That is the very essence of 
Brady. 

“THE COURT: Are you arguing to the 
Court that the status of the law is that if you 
have a report indicating that fingerprints 

were taken and that the fingerprints on the 
item . .. which the defendant is alleged to 
have assaulted somebody turn out not to be 

the defendant’s, that absent a specific request 
for that information, you do not have any 
obligation to defense counsel? 

348 

“MR. CLARKE: No, Your Honor. There is 

another aspect which comes to this, and that 

is whether or not the Government knowingly 
puts on perjured testimony. It has an obliga- 

tion to correct that perjured testimony. 

“THE COURT: I am not talking about per- 

jured testimony. You don’t do anything about 

it. You say nothing about it. You have got the 

report there. You know that possibly it could 
be exculpatory. Defense counsel doesn’t know 
about it. He has been misinformed about it. 

Suppose he doesn’t know about it. And be- 
cause he has made no specific request for that 
information, you say that the status of the 

law under Brady is that you have no obliga- 
tion as a prosecutor to open your mouth? 

“MR. CLARKE: No. Your Honor. . . . 

“But as the materiality of the items be- 
comes less to the point where it is not mate- 

rial, there has to be a request, or else the 

Government, just like the defense, is not on 

notice.” App 147-149. 

[2a] 
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UNITED STATES v AGURS 
427 US 97, 49 L Ed 2d 342, 96 S Ct 2392 

[2a] The Court of Appeals re- 
versed. The Court found no lack of 
diligence on the part of the defense 
and no misconduct by the prosecutor 
in this case. It held, however, that 
the evidence was material, and that 
its nondisclosure required a new 
trial because the jury might have 
returned a different verdict if the 
evidence had been received.® 

The decision of the Court of Ap- 
peals represents a significant depar- 
ture from this Court’s prior holding; 
because we believe that that court 
has incorrectly interpreted the con- 
stitutional requirement of due proc- 
ess, we reverse. 

[427 US 103] 
II 

The rule of Brady v Maryland, 373 

US 83, 10 LL Ed 2d 215, 83 S Ct 1194, 
arguably applies in three quite dif- 
ferent situations. Each involves the 
discovery, after trial, of information 
which had been known to the prose- 
cution but unknown to the defense. 

In the first situation, typified by 
Mooney v Holohan, 294 US 103, 79 
L Ed 791, 55 S Ct 340, 98 ALR 4086, 
the undisclosed evidence demon- 
strates that fhe prosecution’s case 
includes perjured testimony and that 
the SSRIS knew. < should 
have known, of the perjury.” In a 
series of subsequent cases, the Court 

has consistently held that a convic- 
tion obtained by the knowing use of 
perjured testimony is fundamentally 
unfair, and must be set aside 

  

  

there is any reasonable likelihood 

that the false testimony could have 
  

5. [2b] —— US App DC ——, 510 F2d 1249 
(1975). The opinion of the Court of Appeals 
disposed of the direct appeal filed after re- 
spondent was sentenced as well as the two 

additional appeals taken from the two orders 

denying motions for new trial. After the de- 
nial of the first motion, respondent’s counsel 

requested leave to withdraw in order to ena- 
ble substitute counsel to file a new motion for 

a new trial on the ground that trial counsel’s 

representation had been ineffective because 
he did not request Sewell’s criminal record for 
the reason that he incorrectly believed that it 
was inadmissible. The District Court denied 

that motion. Although that action was chal- 

lenged on appeal, the Court of Appeals did 
not find it necessary to pass on the validity of 

that ground. We think it clear, however, that 

counsel’s failure to obtain Sewell’s prior crim- 
inal record does not demonstrate ineffective- 
ness. 

6. Although a majority of the active judges 

of the Circuit, as well as one of the members 

of the panel, expressed doubt about the valid- 
ity of the panel’s decision, the court refused to 
rehear the case en banc. 

7. In Mooney it was alleged that the pe- 
titioner’s conviction was based on perjured 

testimony “which was knowingly used by the 
prosecuting authorities in order to obtain that 

- 

conviction, and also that these authorities 

deliberately suppressed evidence which would 

have impeached and refuted the testimony 

thus given against him.” 294 US, at 110, 79 L 
Ed 791, 55 S Ct 340, 98 ALR 406. 

The Court held that such allegations, if 

true, would establish such fundamental un- 

fairness as to justify a collateral attack on 
petitioner’s conviction. 

“It is a requirement that cannot be deemed to 
be satisfied by mere notice and hearing if a 

State has contrived a conviction through the 

pretense of a trial which in truth is but used 

as a means of depriving a defendant of liberty 

through a deliberate deception of court and 
jury by the presentation of testimony known 
to be perjured. Such a contrivance by a State 
to procure the conviction and imprisonment 
of a defendant is as inconsistent with the 

rudimentary demands of justice as is the 

obtaining of a like result by intimidation.” Id., 
at 112, 79 L Ed 791, 55 S Ct 340, 98 ALR 406. 

8. Pyle v Kansas, 317 US 213, 87 L Ed 214, 
63 S Ct 177; Alcorta v Texas, 355 US 28, 2 L 

Ed 2d 9, 78 S Ct 103; Napue v Illinois, 360 US 
264, 3 L Ed 2d 1217, 79 S Ct 1173; Miller v 
Pate, 386 US 1, 17 L Ed 2d 690, 87 S Ct 785; 
Giglio v United States, 405 US 150, 31 L Ed 
2d 104, 92 S Ct 763; Donnelly v DeChristoforo, 
416 US 637, 40 LL Ed 2d 431, 94 S Ct 1868. A 

  

  

 



  
    

  

  

      
  

U.S. SUPREME COURT REPORTS 49 L Ed 2d 

affected the judgment of the jury. It 
is this line of cases on which the 

[427 US 104] 
Court of Appeals placed primary re- 
liance. In those cases the Court has 
applied a strict standard of material- 

ity, not just because they involve 

prosecutorial misconduct, but more 

importantly because they involve a 
corruption of the truth-seeking func- 
tion of the trial process. Since this 

case Involves no misconduct, and 
since there is no reason to question 

the veracity of any of the prosecu- 

tion witnesses, the test of material- 

ity followed in the Mooney line of 
cases 1s not necessarily applicable to 
this case. 

The second situation, illustrated 
by the Brady case itself, is charac- 
terized by a pretrial request for spe- 
cific evidence. In that case defense 
counsel had requested the extrajudi- 
cial statements made by Brady’s ac- 
complice, one Boblit. This Court held 
that the suppression of one of Bob- 
lit’'s statements deprived Brady of 
due process, noting specifically that 
the statement had been requested 

and that it was “material.” A fair 
analysis of the holding in Brady in- 
dicates that implicit in the require- 
ment of materiality is a concern that 
the suppressed evidence might have 
affected the outcome of the trial. 

Brady was found guilty of murder 
in the first degree. Since the jury did 
not add the words “without capital 

punishment” to the verdict, he was 
sentenced to death. At his trial 
Brady did not deny his involvement 
in the deliberate killing, but testified 
that it was his accomplice, 

[427 US 105] 

Boblit, 
rather than he, who had actually 
strangled the decedent. This version 
of the event was corroborated by one 
of several confessions made by Boblit 
but not given to Brady’s counsel 
despite an admittedly adequate re- 
quest. 

After his conviction and sentence 
had been affirmed on appeal," Brady 
filed a motion to set aside the judg- 
ment, and later a post-conviction 
proceeding, in which he alleged that 
the State had violated his constitu- 
tional rights by suppressing the Bob- 
lit confession. The trial judge denied 
relief largely because he felt that 
Boblit’s confession would have been 
inadmissible at Brady's’ trial. The 
Maryland Court of Appeals disa- 
greed;' it ordered a new trial on the 
issue of punishment. It held that the 
withholding of material evidence, 
even “without guile,” was a denial of 
due process and that there were 
valid theories on which the confes- 
sion might have been admissible in 
Brady’s defense. 

This Court granted certiorari to 
consider Brady’s contention that the 
violation of his constitutional right 
to a fair trial vitiated the entire 

  

9. See Giglio, supra, at 154, 31 LL Ed 2d 104, 
92 S Ct 763, quoting from Napue, supra, at 
271, 3 L Ed 2d 1217, 79 S Ct 1173. 

10. “We now hold that the suppression by 
the prosecution of evidence favorable to an 
accused upon request violates due process 

where the evidence is material either to guilt 

or to punishment, irrespective of the good 

faith or bad faith of the prosecution.” Brady v 
Maryland, 373 US 83, 87, 10 LL Ed 2d 215, 83 

S Ct 1194. Although in Mooney the Court had 

been primarily concerned with the willful 

350 

misbehavior of the prosecutor, in Brady the 
Court focused on the harm to the defendant 

resulting from nondisclosure. See discussions 
of this development in Note, The Prosecutor’s 

Constitutional Duty to Reveal Evidence to the 

Defendant, 74 Yale LJ 136 (1964); and Com- 

ment, Brady v Maryland and The Prosecu- 

tor’s Duty to Disclose, 40 U Chi L Rev 112 
(1972). 

11. 220 Md 454, 154 A2d 434 (1959). 

12. 226 Md 422, 174 A2d 167 (1961). 

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side the judg- 
post-conviction 
1e alleged that 
1 his constitu- 

ssing the Bob- 
1 judge denied 

he felt that 
uld have been 
v's ‘trial. The 

Appeals disa- 
'w trial on the 

t held that the 
rial evidence, 
vas a denial of 

t there were 
-h the confes- 
admissible in 

    

  

     

   
   

     

      

  

certiorari to 
ntion that the 
‘tutional right 
»d the entire 
  

tor, in Brady the 
to the defendant 

o. See discussions 

. The Prosecutor’s 

11 Evidence to the 

(1964); and Com- 

nd The Prosecu- 

J] Chi L Rev 112 

14 (1959). 

57 (1961).     

  oF 

UNITED STATES v AGURS 
427 US 97, 49 L Ed 2d 342, 96 S Ct 2392 

proceeding.’ The holding that the 
suppression of exculpatory evidence 
violated Brady's right to due process 
was affirmed, as was the separate 

holding that he should receive a new 

trial on the issue of punishment but 
not on the issue of guilt or inno- 
cence. The Court interpreted the 

Maryland Court 
[427 US 106] 

of Appeals opinion 
as ruling that the confession was 

inadmissible on that issue. For that 

reason, the confession- could not 
have affected the outcome on the 

issue of guilt but-could have affected 
Brady's punishment. It was material 
on the latter issue but not the for- 
mer. And since it was not material 

on the issue of guilt, the entire trial 

was not lacking in due process. 

e test of materiality in a case 
like Brady in which specific informa- 

tion has been requested by the de- 
fense is not necessarily the same as 
in a case in which no such request 
has been made." Indeed, this Court 
has not yet decided whether the 
prosecutor has any obligation to pro- 
vide defense counsel with exculpa- 

tory information when no request 

has been made. Before addressing 
that question, a brief comment on 
the function of the request is appro- 

priate. 

[3] In Brady the request was spe- 

cific. It gave the prosecutor notice of 
exactly what the defense desired. 
Although there is, of course, no duty 
to provide defense counsel with un- 

limited discovery of everything 

    

  

     

  

known by the prosecutor, if the sub- 

ject matter of such a request is ma- 
terial, or indeed if a substantial ba- 
sis for claiming materiality exists, it 
is reasonable to require the prosecu- 
tor to respond either by furnishing 

the information or by subm] 

prosecutor receives a specific and 
relevant request, the failure to make 
any response is seldom, if ever, ex- 
usable. 
  

In many cases, however, exculpa- 
tory information in the possession of 

the prosecutor may be unknown to 
defense counsel. In such a situation 

he may make no request at all, or 
possibly ask for “all Brady material” 
or for “anything exculpatory.” Such 
a request really gives the prosecutor 
no better notice than if no request is 

~- [427 US 107) 
made. If there is a duty to respond 
to a general request of that kind, it 
must derive from the obviously ex- 

culpatory character of certain evi- 
dence in the hands of the prosecutor. 
But if the evidence is so clearly sup- 
portive of a claim of innocence that 
it gives the prosecution notice of a 

duty to produce, that duty should 
equally arise even if no request is 
made. Whether we focus on the de- 

sirability of a precise definition of 
the prosecutor’s duty or on the po- 
tential harm to the defendant, we 
conclude that there is no significant 
difference between cases in which 

there has been merely a general 
request for exculpatory matter and 
cases, like the one we must now 

decide, in which there has been no 
  

13. “The petitioner was denied due process 
of law by the State’s suppression of evidence 
before his trial began. The proceeding must 

commence again from the stage at which the 

petitioner was overreached. The denial of due 
process of law vitiated the verdict and the 

sentence. Rogers v Richmond, 365 US 534, 

545, [6 L Ed 2d 760, 81 S Ct 735]. The verdict 

is not saved because other competent evidence 

would support it. Culombe v Connecticut, 367 
US 568, 621, [6 L Ed 2d 1037, 81 S Ct 1860). ” 
Brief for Petitioner in Brady v Maryland, Po. 
490, OT 1962, p 6. 

14. See 40 U Chi L Rev, supra, n 10, at 115- 
137. 

351 

 



    

              

  

    

U.S. SUPREME COURT REPORTS 

request at all. The third situation in 
which the Brady rule arguably ap- 
plies, typified by this case, therefore 
embraces the case in which only a 
general request for “Brady material” 
has been made. 

We now consider whether the 
prosecutor has any constitutional 
duty to volunteer exculpatory mat- 
ter to the defense, and if so, what 
standard of materiality gives rise to 
that duty. 

III 

[4] We are not considering the 
scope of discovery authorized by the 
Federal Rules of Criminal Proce- 
dure, or the wisdom of amending 
those Rules to enlarge the defend- 
ant’s discovery rights. We are deal- 
ing with the defendant’s right to a 
fair trial mandated by the Due Proc- 
ess Clause of the Fifth Amendment 
to the Constitution. Our construction 
of that Clause will apply equally to 
the comparable Clause in the Four- 
teenth Amendment applicable to tri- 
als in state courts. 

The problem arises in two princi- 
pal contexts. First, in advance of 
trial, and perhaps during the course 
of a trial as well, the prosecutor 
must decide what, if anything, he 
should voluntarily submit to defense 
counsel. 

[427 US 108] 

Second, after trial a judge 
may be required to decide whether a 

49 L Ed 2d 

nondisclosure deprived the defend- 
ant of his right to due process. Logi- 
cally the same standard must apply 
at both times. For unless the omis- 
sion deprived the defendant of a fair 

trial, there was no constitutional 
violation requiring that the verdict 
be set aside; and absent a constitu- 
tional violation, there was no breach 
of the prosecutor’s constitutional 
duty to disclose. 

Nevertheless, there is a significant 

practical difference between the pre- 
trial decision of the prosecutor and 
the post-trial decision of the judge. 
Because we are dealing with an in- 
evitably imprecise standard, and be- 
cause the significance of an item of 
evidence can seldom be predicted 

accurately until the entire record is 
complete, the prudent prosecutor 
will resolve doubtful questions in 
favor of disclosure. But to reiterate a 
critical point, the prosecutor will not 
have violated his constitutional duty 
of disclosure unless his omission is of 
sufficient significance to result in the 
denial of the defendant’s right to a 
fair trial. 

The Court of Appeals appears to 
have assumed that the prosecutor 
has a constitutional obligation to 
disclose any information that might 
affect the jury’s verdict. That state- 
ment of a constitutional standard of 
materiality approaches the “sporting 
theory of justice” which the Court 
expressly rejected in Brady. For a 

  

15. “In the present case a unanimous Court 
of Appeals has said that nothing in the sup- 
pressed confession ‘could have reduced the 

appellant Brady's offense below murder in the 

first degree” We read that statement as a 
ruling on the admissibility of the confession 
on the issue of innocence or guilt. A sporting 
theory of justice might assume that if the 
suppressed confession had been used at the 
first trial, the judge’s ruling that it was not 
admissible on the issue of innocence or guilt 
might have been flouted by the jury just as 

352 

might have been done if the court had first 
admitted a confession and then stricken it 
from the record. But we cannot raise that 

trial strategy to the dignity of a constitutional 

right and say that the deprival of this defend- 
. ant of that sporting chance through the use of 

a bifurcated trial (cf. Williams v New York, 

337 US 241, [93 L Ed 1337, 69 S Ct 1079) 

denies him due process or violates the Equal 
Protection Clause of the Fourteenth Amend- 

ment.” 373 US, at 90-91, 10 L Ed 2d 215, 83 S 

Ct 1194 (footnote omitted). 

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UNITED STATES v AGURS 
427 US 97,49 L Ed 2d 342, 96 S Ct 2392 

jury’s 
[427 US 109] 

appraisal of a case “might” be 
affected by an improper or trivial 
consideration as well as by evidence 
giving rise to a legitimate doubt on 
the issue of guilt. If everything that 

might influence a jury must be dis- 
closed, the only way a prosecutor 
could discharge his constitutional 
duty would be to allow complete 
discovery of his files as a matter of 

routine practice. 

[5, 6] Whether or not procedural 
rules authorizing such broad discov- 
ery might be desirable, the Constitu- 

tion surely does not demand that 
much. While expressing the opinion 

that representatives of the State 
may not “suppress substantial mate- 
rial evidence,” former Chief Justice 
Traynor of the California Supreme 
Court has pointed out that “they are 
under no duty to report sua sponte 
to the defendant all that they learn 
about the case and about their wit- 
nesses.” In re Imbler, 60 Cal 2d 554, 
569, 387 P2d 6, 14 (1963). And this 
Court recently noted that there is 
“no constitutional requirement that 
the prosecution make a complete 
and detailed accounting to the de- 

fense of all police investigatory work 

on a case.” Moore v Illinois, 408 US 
786,795, 33 L. Ed 2d 706, 92 S-Ct 
2562. The mere possibility that an 
item of undisclosed information 

[427 US 110] 

might have helped the 

defense, or might have affected the 
outcome of the trial, does not estab- 
lish “materiality” in the constitu- 

tional sense. 

[71 Nor do we believe the constitu- 
tional obligation is measured by the 
moral culpability, or the willfulness, 
of the prosecutor.” If evidence 
highly probative of innocence is in 
his file, he should be presumed to 
recognize its significance even if he 
has actually overlooked it. Cf. Giglio 
v United States, 405 US 150, 154, 31 
L.Ed 2d 104, 92 S Ct 763. Con- 
versely, if evidence actually has no 
probative significance at all, no pur- 
pose would be served by requiring a 
new trial simply because an inept 
prosecutor incorrectly believed he 
was suppressing a fact that would be 
vital to the defense. If the suppres- 
sion of evidence results in constitu- 
tional error, it is because of the 
character of the evidence, not the 
character of the prosecutor. 

[8, 9] As the District Court recog- 
nized in this case, there are situa- 

  

16. In his opinion concurring in the judg- 
ment in Giles v Maryland, 386 US 66, 98, 17 

L Ed 2d 737, 87 S Ct 793, Mr. Justice Fortas 

stated: 
“This is not to say that convictions ought to 

be reversed on the ground that information 

merely repetitious, cumulative, or embellish- 

ing of facts otherwise known to the defense or 
presented to the court, or without importance 

to the defense for purposes of the preparation 

of the case or for trial was not disclosed to 

defense counsel. It is not to say that the State 
has an obligation to communicate prelimi- 
nary, challenged, or speculative information.” 

17. In Brady this Court, as had the Mary- 
land Court of Appeals, expressly rejected the 

good faith or the bad faith of the prosecutor 
as the controlling consideration: “We now 

hold that the suppression by the prosecution 

of evidence favorable to an accused upon 
request violates due process where the evi- 

dence is material either to guilt or to punish- 
ment, irrespective of the good faith or bad 
faith of the prosecution. The principle of Moo- 
ney v Holohan is not punishment of society 
for misdeeds of a prosecutor but avoidance of 

an unfair trial to the accused.” 373 US, at 87, 
10 L Ed 2d 215, 83 S Ct 1194. (Emphasis 
added.) If the nature of the prosecutor’s con- 

duct is not controlling in a case like Brady, 
surely it should not be controlling when the 
prosecutor has not received a specific request 
for information. N 

353 

 



  

  
    

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U.S. SUPREME COURT REPORTS 

tions in which evidence is obviously 
of such substantial value to the de- 
fense that elementary fairness re- 
quires it to be disclosed even without 
a specific request.’® For though the 
attorney for the sovereign must 
prosecute the accused with earnest- 
ness and vigor, he 

[427 US 111] 
must always be 

faithful to his client’s overriding in- 
terest that “justice shall be done.” 
He is the “servant of the law, the 
twofold aim of which is that guilt 
shall not escape or innocence 
suffer.” Berger v United States, 295 
US 78, 88, 79 LL Ed 1314, 55 S Ct 
629. This description of the prosecu- 
tor’s duty illuminates the standard 
of materiality that governs his obli- 
gation to disclose exculpatory evi- 
dence. 

[10] On the one hand, the fact that 
such evidence was available to the 
prosecutor and not submitted to the 
defense places it in a different cate- 
gory than if it had simply been dis- 
covered from a neutral source after 
trial. For that reason the defendant 
should not have to satisfy the severe 
burden of demonstrating that newly 
discovered evidence probably would 
have resulted in acquittal.’ If the 
standard applied to the usual motion 
for a new trial based on newly dis- 
covered evidence were the same 
when the evidence was in the State’s 

49 L Ed 2d 

possession as when it was found in a 
neutral source, there would be no 
special significance to the prosecu- 
tor’s obligation to serve the cause of 
justice. 

[11, 12] On the other hand, since 
we have rejected the suggestion that 
the prosecutor has a constitutional 
duty routinely to deliver his entire 
file to defense counsel, we cannot 
consistently treat every nondisclo- 
sure as though it were error. It nec- 
essarily follows that the judge 
should not order a new trial every 

time he is unable to 
[427 US 112] 

characterize a 
.nondisclosure as harmless under the 
customary harmless-error standard. 
Under that standard when error is 
present in the record, the reviewing 
judge must set aside”the verdict and 
judgment unless his “conviction is 
sure that the error did not influence 
the jury, or had but very slight ef- 
fect.” Kotteakos v United States, 328 
US 750, 764, 90 L. Ed 1557, 66 S Ct 
1239. Unless every nondisclosure is 
regarded as automatic error, the 
constitutional standard of material- 
ity must impose a higher burden on 
the defendant. 

[13a, 14a, 15] The proper standard 
of materiality must reflect our over- 
riding concern with the justice of the 
finding of guilt.? Such a finding is 

  

18. The hypothetical example given by the 
District Judge in this case was fingerprint 
evidence demonstrating that the defendant 
could not have fired the fatal shot. 

19. This is the standard generally applied 
by lower courts in evaluating motions for new 
trial under Fed Rule Crim Proc 33 based on 
newly discovered evidence. See, e.g., Ashe v 
United States, 288 F2d 725, 733 (CA6 1961); 
United States v Thompson, 493 F2d 305, 310 

(CA9 1974), cert denied, 419 US 834, 42 L Ed 
2d 60, 95 S Ct 60; United States v Houle, 490 
F2d 167, 171 (CA2 1973), cert denied, 417 US 

970, 41 L Ed 2d 1141, 94 S Ct 3174; United 
States v Meyers, 484 F2d 113, 116 (CA3 1973); 

354 

Heald v United States, 175 F2d 878, 883 
(CA10 1949). See also 2 C. Wright, Federal 
Practice and Procedure § 557 (1969). 

20. [13b, 14b] It has been argued that the 
standard should focus on the impact of the 
undisclosed evidence on the defendant’s abil- 
ity to prepare for trial, rather than the mate- 

riality of the evidence to the issue of guilt or 
innocence. See Note, The Prosecutor’s Consti- 
tutional Duty to Reveal Evidence to the De- 
fense, 74 Yale LJ 136 (1964). Such a standard 
would be unacceptable for determining the 

materiality of what has been generally recog- 
nized as “Brady material” for two reasons. 

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» a finding is 
  

5 F2d 878, 883 

Wright, Federal 

(1969). 

1 argued that the 
e impact of the 
defendant’s abil- 
r than the mate- 
issue of guilt or 
secutor’s Consti- 
lence to the De- 
Such a standard 
determining the 
generally recog- 

for two reasons. 

          

UNITED STATES v AGURS 
427 US 97, 49 L Ed 2d 342, 96 S Ct 2392 

permissible only if supported by evi- 
dence establishing guilt beyond a 
reasonable doubt. It necessarily fol- 
lows that if the omitted evidence 
creates a reasonable doubt that did 
not otherwise exist, constitutional 
error has been committed. This 
means that the omission must be 
evaluated in the context of the en- 
tire record.?! If there is no reasona- 

ble doubt about 
[427 US 113] 

guilt whether or not 
the additional evidence is consid- 
ered, there is no justification for a 
new trial. On the other hand, if the 
verdict is already of questionable 
validity, additional evidence of rela- 
tively minor importance might be 
sufficient to create a reasonable 
doubt. ’ 

This statement of the standard of 
materiality describes the test which 
courts appear to have applied in 
actual cases although the standard 
has been phrased in different lan- 
guage.? It is also the standard which 
the trial judge applied in this case. 

He evaluated the significance of Se- 
well’s prior criminal record in the 
context of the full trial which he 
recalled in detail. Stressing in par- 
ticular the incongruity of a claim 
that Sewell was the aggressor with 
the evidence of his multiple wounds 
and respondent’s unscathed condi- 
tion, the trial judge indicated his 

unqualified opinion that respondent 

was guilty. He 
[427 US 114) 

noted that Sewell’s 
prior record did not contradict any 
evidence offered by the prosecutor, 
and was largely cumulative of the 
evidence that Sewell was wearing a 

bowie knife in a sheath and carrying 
a second knife in his pocket when he 

registered at the motel. 

[1b] Since the arrest record was 
not requested and did not even argu- 

ably give rise to any inference of 
perjury, since after considering it in 

the context of the entire record the 
trial judge remained convinced of 

respondent’s guilt beyond a reasona- 
  

First, that standard would necessarily encom- 
pass incriminating evidence as well as excul- 

patory evidence, since knowledge of the prose- 
cutor’s entire case would always be useful in 
planning the defense. Second, such an ap- 
proach would primarily involve an analysis of 

the adequacy of the notice given to the de- 

fendant by the State, and it has always been 
the Court’s view that the notice component of 

due process refers to the charge rather than 
the evidentiary support for the charge. 

21. “If, for example, one of only two 
eyewitnesses to a crime had told the prosecu- 
tor that the defendant was definitely not its 

perpetrator and if this statement was not 

disclosed to the defense, no court would hesi- 
tate to reverse a conviction resting on the 

testimony of the other eyewitness. But if 
there were fifty eyewitnesses, forty-nine of 

whom identified the defendant, and the prose- 
cutor neglected to reveal that the other, who 
was without his badly needed glasses on the 

misty evening of the crime, had said that the 

criminal looked something like the defendant 

but he could not be sure as he had only had a 

brief glimpse, the result might well be differ- 

ent.” 40 U Chi L Rev, supra, n 10, at 125. 

22. See, e.g., Stout v Cupp, 426 F2d 881, 

882-883 (CA9 1970); Peterson v United States, 

411 F2d 1074, 1079 (CA8 1969); Lessard v 

Dickson, 394 F2d 88, 90-92 (CA9 1968), cert 

denied, 393 US 1004, 21 L Ed 2d 469, 89 S Ct 

494; United States v Tomaiolo, 378 F2d 26, 28 

(CA2 1967). One commentator has identified 

three different standards this way: 

“As discussed previously, in earlier cases 
the following standards for determining mate- 

riality for disclosure purposes were enunci- 
ated: (1) evidence which may be merely help- 
ful to the defense; (2) evidence which raised a 

reasonable doubt as to defendant’s guilt; (3) 
evidence which is of such a character as to 
create a substantial likelihood of reversal.” 

Comment, Materiality and Defense Requests: 
Aids in Defining the Prosecutor’s Duty of 
Disclosure, 59 Iowa L Rev 433, 445 (1973).\.See 
also Note, The Duty of the Prosecutor \to 
Disclose Exculpatory Evidence, 60 Col L. Rev 
858 (1960). 

355 

_s 

 



        
      

      

U.S. SUPREME COURT REPORTS 

ble doubt, and since we are satisfied 
that his firsthand appraisal of the 
record was thorough and entirely 
reasonable, we hold that the prose- 
cutor’s failure to tender Sewell’s rec- 
ord to the defense did not deprive 

49 L Ed 2d 

respondent of a fair trial as guaran- 

teed by the Due Process Clause of 

the Fifth Amendment. Accordingly, 
the judgment of the Court of Ap- 
peals is reversed. 

SEPARATE OPINION 

Mr. Justice Marshall, with whom 
Mr. Justice Brennan joins, dissent- 
ing. 

The Court today holds that the 
prosecutor’s constitutional duty to 
provide exculpatory evidence to the 
defense is not limited to cases in 
which the defense makes a request 

for such evidence. But once having 
recognized the existence of a duty to 
volunteer exculpatory evidence, the 
Court so narrowly defines the cate- 
gory of “material” evidence em- 

braced by the duty as to deprive it of 
all meaningful content. 

In considering the appropriate 
standard of materiality governing 
the prosecutor’s obligation to volun- 
teer exculpatory evidence, the Court 
observes: 

“[T]he fact that such evidence was 
available to the prosecutor and 
not submitted to the defense 

places it in a different category 
than if it had simply been 

[427 US 115] 

discov- 
ered from a neutral source after 
trial. For that reason the defend- 
ant should not have to satisfy the 
severe burden of demonstrating 
that newly discovered evidence 

probably would have resulted in 
acquittal [the standard generally 
applied to a motion under Fed 

Rule Crim Proc 33 based on newly 

discovered evidence!]. If the stan- 
dard applied to the usual motion 
for a new trial based on newly 

discovered evidence were the same 
when the evidence was in the 
State’s possession as when it was 
found in a neutral source, there 

would be no special significance to 

the prosecutor’s obligation to serve 

the cause of justice.” Ante, at 111, 

49 L Ed 2d 354 (footnote omitted). 

I agree completely. 

The Court, -however, seemingly 
forgets these precautionary words 
when it comes time to state the 

proper standard of materiality to be 

applied in cases involving neither 

the knowing use of perjury nor a 
specific defense request for an item 

of information. In such cases, the 

prosecutor commits constitutional 

error, the Court holds, “if the omit- 
ted evidence creates a reasonable 

doubt that did not otherwise exist.” 

Ante, at 112, 49 L Ed 2d 355. As the 

Court’s subsequent discussion makes 

clear, the defendant challenging the 

prosecutor’s failure to disclose evi- 
dence is entitled to relief, in the 

Court’s view, only if the withheld 

evidence actually creates a reasona- 

ble doubt as to guilt in the judge’s 
mind. The burden thus imposed on 

the defendant is at least as “severe” 
  

1. The burden generally imposed upon such 
a motion has also been described as a burden 

of demonstrating that the newly discovered 
evidence would probably produce a different 
verdict in the event of a retrial. See, e.g. 

356 

United States v Kahn, 472 F2d 272, 287 (CA2 

1973); United States v Rodriguez, 437 F2d 

940, 942 (CA5 1971); United States v Curran, 

465 F2d 260, 264 (CAT 1972).  



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UNITED STATES v AGURS 
427 US 97, 49 L Ed 2d 342, 96 S Ct 2392 

as, if not more 
[427 US 116] 

“severe” than,? the 
burden he generally faces on a Rule 
33 motion. Surely if a judge is able 
to say that evidence actually creates 
a reasonable doubt as to guilt in his 
mind (the Court’s standard), he 

would also conclude that the evi- 
dence “probably would have resulted 
in acquittal” (the general Rule 33 
standard). In short, in spite of its 
own salutary precaution, the Court 
treats the case in which the prosecu- 
tor withholds evidence no differently 
from the case in which evidence is 
newly discovered from a neutral 
source. The “prosecutor’s obligation 
to serve the cause of justice” is.re- 
duced to a status, to borrow the 
Court’s words, of “no special signifi- 
cance.” Ante, at 111, 49 L Ed 2d 354. 

Our overriding concern in cases 
such as the one before us is the 
defendant’s right to a fair trial. One 
of the most basic elements of fair- 
ness in a criminal trial is that avail- 
able evidence tending to show inno- 
cence, as well as that tending to 
show guilt, be fully aired before the 

jury; more particularly, it is that the 
State in its zeal to convict a defend- 
ant not suppress evidence that 
might exonerate him. See Moore Vv 
Illinois, 408 US 786, 810, 33 L Ed 2d 
706, 92 S Ct 2562 (1972) (opinion of 
Marshall, J.). This fundamental no- 
tion of fairness does not pose any 
irreconcilable conflict for the prose- 
cutor, for as the Court reminds us, 
the prosecutor “must always be 
faithful to his client’s overriding in- 
terest ‘that justice shall be done.” ” 
Ante, at 111, 49 LL Ed 2d 354. No 
interest of the State is served, and 
no duty of the prosecutor advanced, 

by the suppression of evidence favor- 
able to the defendant. On the con- 
trary, the prosecutor fulfills his most 
basic responsibility when he fully 
airs all the relevant evidence at his 
command. 

I recognize, of course, that the 
exculpatory value to the defense of 
an item of information will often not 
be apparent to the prosecutor in 
advance of trial. And 

[427 US 117] 

while the gen- 
eral obligation to disclose exculpa- 
tory information no doubt continues 
during the trial, giving rise to a duty 
to disclose information whose signifi- 
cance becomes apparent as the case 
progresses, even a conscientious 
prosecutor will fail to appreciate the 
significance of some items of infor- 
mation. See United States v Keogh, 
391 F2d 138, 147 (CA2 1968). I agree 
with the Court that these considera- 
tions, as well as the general interest 
in finality of judgments, preclude the 
granting of a new trial in every case 
in which the prosecutor has failed to 
disclose evidence of some value to 
the defense. But surely these consid- 
erations do not require the rigid rule 
the Court intends to be applied to all 
but a relatively small number of 
such cases. 

Under today’s ruling, if the prose- 
cution has not made knowing use of 
perjury, and if the defense has not 
made a specific request for an item 
of information, the defendant is enti- 
tled to a new trial only if the with- 
held evidence actually creates a rea- 
sonable doubt as to guilt in the 

judge’s mind. With all respect, this 
rule is completely at odds with the 
overriding interest*in assuring that 
evidence tending to show innocence 

  

2. See United States v Keogh, 391 F2d 138, 
148 (CA2 1968), in which Judge Friendly im- 
plies that the standard the Court adopts is 

more severe than the standard the Court 

rejects. 

357 

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U.S. SUPREME COURT REPORTS 49 L Ed 2d 

is brought to the jury’s attention. standard of materiality is the stan- 
The rule creates little, if any, incen- dard that “courts appear to have 
tive for the prosecutor conscien- applied in actual cases although the 
tiously to determine whether his standard has been phrased in differ- 
files contain evidence helpful to the ent language.” Ante, at 113, 49 L Ed 
defense. Indeed, the rule reinforces 2d 355 (footnote omitted). There is 

Court’s, 

the deter: 
of the im; 
on the ju: 
tion canu 

certainty.’ 
the natural tendency of the prosecu- 
tor to overlook evidence favorable to 

no basis for this assertion. None of 

the cases cited by the Court in sup- 
the defense, and creates an incentive port of its statement suggests that a The Co 
for the prosecutor to resolve close judgment of conviction should be a limited 
questions of disclosure in favor of sustained so long as the judge re- dard virt: 
concealment. mains convinced beyond a reasona- have des: 

ble doubt of the defendant’s guilt. vailing vi 

  
More fundamentally, the Court’s undisclos: 

  
        

  

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a 

rule usurps the function of the jury 
as the trier of fact in a criminal 
case. The Court’s rule explicitly es- 
tablishes the judge as the trier of 
fact with respect to evidence with- 
held by the prosecution. The defend- 
ant’s fate is sealed so long as the 
evidence does not create a reasona- 
ble doubt as to guilt in the judge’s 
mind, regardless of whether the 

[427 US 118] 

evi- 
dence is such that reasonable men 
could disagree as to its import—re- 
gardless, in other words, of how 
“close” the case may be.’ 

The Court asserts that this harsh 

The prevailing 
[427 US 119] 

view in the federal 
courts of the standard of materiality 
for cases involving neither a specific 
request for information nor other 
indications of deliberate misconduct 
—a standard with which the cases 
cited by the Court are fully consist- 
ent—is quite different. It" is essen- 
tially the following: If there is a 
significant chance that the withheld 
evidence, developed by skilled coun- 
sel, would have induced a reasonable 
doubt in the minds of enough jurors. 
to avoid a conviction, then the judg- 
ment of conviction must be set 
aside? This standard, unlike the 

  

3. To emphasize the harshness of the 
Court’s rule, the defendant’s fate is deter- 
mined finally by the judge only if the judge 
does not entertain a reasonable doubt as to 

guilt. If evidence withheld by the prosecution 

does create a reasonable doubt as to guilt in 

the judge’s mind, that does not end the case— 
rather, the defendant (one might more accu- 

rately say the prosecution) is “entitled” to 
have the case decided by a jury. 

4. In Stout v Cupp, 426 F2d 881 (CA9 1970), 
a habeas proceeding, the court simply quoted 
the District Court’s finding that if the sup- 
pressed evidence had been introduced, “the 

jury would not have reached a different re- 
sult.” Id., at 883. There is no indication that 
the quoted language was intended as any- 
thing more than a finding of fact, which 
would, quite obviously, dispose of the defend- 
ant’s claim under any standard that might be 
suggested. In Peterson v United States, 411 
F2d 1074 (CA8 1969), the court appeared to 
require a showing that the withheld evidence 

358 

“was ‘material’ and would have aided the 

defense.” Id., at 1079. The court in Lessard v 

Dickson, 394 F2d 88 (CA9 1968), found it 

determinative that the withheld evidence 

“could hardly be regarded as being able to 

have much force against the inexorable array 

of incriminating circumstances with which 
[the defendant] was surrounded.” Id., at 91. 
The jury, the court noted, would not have 
been “likely to have had any [difficulty]” with 
the argument defense counsel would have 

made with the withheld evidence. Id., at 92. 

Finally, United States v Tomaiolo, 378 F2d 26 

(CA2 1967), required the defendant to show 

that the evidence was “material and of some 
substantial use to the defendant.” Id., at 28. 

5. See, e.g., United States v Morell, 524 F2d 

550, 553 (CA2 1975); Ogden v Wolff, 522 F2d 

816, 822 (CA8 1975); Woodcock v Amaral, 511 

F2d 985, 991 (CA1 1974); United States v 

Miller, 499 F2d 736, 744 (CA10 1974); Shuler 

v Wainwright, 491 F2d 1213, 1223 (CA5 1974); 

that the 

perjured 
prosecut 

known, ¢ 
49 L Ed 
convictic 
there is 
that the 

affected 
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UNITED STATES v AGURS 
427 US 97, 49 L Ed 2d 342, 96 S Ct 2392 

Court’s, reflects a recognition that 
the determination must be in terms 
of the impact of an item of evidence 
on the jury, and that this determina- 
tion cannot always be made with 

certainty.® 

[427 US 120] 

The Court approves—but only for 
a limited category of cases—a stan- 
dard virtually identical to the one I 
have described as reflecting the pre- 
vailing view. In cases in which “the 
undisclosed evidence demonstrates 
that the prosecution’s case includes 
perjured testimony and that the 
prosecution knew, or should have 
known, of the perjury,” ante, at 103, 
49 L Ed 2d 349, the judgment of 
conviction must be set aside "if 
there is any reasonable likelihood 
that the false testimony could have 
affected the judgment of the jury.” 
Ibid. This lesser burden on the de- 
fendant is appropriate, the Court 
states, primarily because the with- 
holding of evidence contradicting 
testimony offered by witnesses called 
by the prosecution “involve[s] a cor- 
ruption of the truth-seeking function 
of the trial process.” Ante, at 104, 49 
L Ed 2d 350. But surely the truth- 
seeking process is corrupted by the 
withholding of evidence favorable to 

the defense, regardless of whether 
the evidence is directly contradictory 
to evidence offered by the prosecu- 
tion. An example offered by Mr. Jus- 
tice Fortas serves to illustrate the 

point. “[L]et us assume that the 
State possesses information that 
blood was found on the victim, and 
that this blood is of a type which 
does not match that of the accused 
or of the victim. Let us assume that 
no related testimony was offered by 
the State.” Giles v Maryland, 386 
US 66, 100, 17 L. Ed 2d 737, 87 S Ct 
793 (1967) (concurring in judgment). 
The suppression of the information 
unquestionably corrupts the truth- 
seeking process, and the burden on 
the defendant in establishing his en- 
titlement to a new trial ought be no 
different from the burden he would 
face if related testimony had been 
elicited by the prosecution. See id., 
at 99-101, 17 LL. Ed 2d 737, 87 S Ct 
793. 

The Court derives its “reasonable 

likelihood” standard for cases involv- 
ing perjury from cases such as Na- 
pue v 

[427 US 121] 

Illinois, 360 US 264, 3 L Ed 2d 
1217, 79 S Ct 1173 (1959), and Giglio 
v United States, 405 US 150, 31 L 

  

United States v Kahn, 472 F2d, at 287; Clarke 
v Burke, 440 F2d 853, 855 (CA7 1971); Hamric 

v Bailey, 386 F2d 390, 393 (CA4 1967). 

6. That there is a significant difference 
between the Court’s standards and what has 

been described as the prevailing view is made 
clear by Judge Friendly, writing for the court 
in United States v Miller, 411 F2d 825 (CA2 

1969). After stating the court’s conclusion 

that a new trial was required because of the 
Government’s failure to disclose to the de- 
fense the pretrial hypnosis of its principal 

witness, Judge Friendly observed: 

“We have reached this conclusion with 
some reluctance, particularly in light of the 
considered belief of the able and conscientious 

district judge, who has lived with this case for 
years, that review of the record in light of all 

the defense new trial motions left him ‘con- 
vinced of the correctness of the jury’s verdict.’ 
We, who also have had no small exposure to 
the facts, are by no means convinced other- 
wise. The test, however, is not how the newly 
discovered evidence concerning the hypnosis 
would affect the trial judge or ourselves but 
whether, with the Government's case against 

[the defendant] already subject to serious at- 
tack, there was a significant chance that this 
added item, developed by skilled counsel as it 
would have been, could have induced a rea- 
sonable doubt in the minds of enough jurors 
to avoid a conviction. We cannot conscien- 

tiously say there was not.” Id., at 832 (foot- 
note omitted). 

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U.S. SUPREME COURT REPORTS 49 L Ed 2d 

Ed 2d 104, 92 S Ct 763 (1972). But 
surely the results in those cases, and 

the standards applied, would have 
been no different if perjury had not 
been involved. In Napue and Giglio, 

co-conspirators testifying against the 
defendants testified falsely, in re- 
sponse to questioning by defense 
counsel, that they had not received 
promises from the prosecution. The 
prosecution failed to disclose that 
promises had in fact been made. The 

corruption of the truth-seeking proc- 
ess stemmed from the suppression of 

evidence affecting the overall credi- 
bility of the witnesses, see Napue, 

supra, at 269, 3 L. Ed 2d 1217, 719 S 
Ct 1173; Giglio, supra, at 154, 31 L 
Fd 24 104, 92 'S Ct 763, and that 

corruption would have been present 
whether or not defense counsel had 

elicited statements from the wit- 
nesses denying that promises had 
been made. 

It may be that, contrary to the 
Court’s insistence, its treatment of 

perjury cases reflects simply a desire 

to deter deliberate prosecutorial mis- 
conduct. But if that were the case, 
we might reasonably expect a rule’ 

imposing a lower threshold of mate- 

riality than the Court imposes—per- 

haps a harmless-error standard. And 
we would certainly expect the rule 
to apply to a broader category of 
misconduct than the failure to dis- 
close evidence that contradicts testi- 
mony offered by witnesses called by 
the prosecution. For the prosecutor 
is guilty of misconduct when he de- 
liberately suppresses evidence that 
is clearly relevant and favorable to 
the defense, regardless, once again, 
of whether the evidence relates di- 
rectly to testimony given in the 
course of the Government’s case. 

This case, however, does not in- 
volve deliberate prosecutorial mis- 
conduct. Leaving open the question 
whether a different rule might ap- 
propriately be applied in cases in- 
volving deliberate misconduct,” I 
would hold that the 

[427 US 122] - 2 

defendant in 
this case had the burden of demon- 
strating that there is a significant 
chance that the withheld evidence, 
developed by skilled counsel, would 
have induced a reasonable doubt in 
the minds of enough jurors to avoid 
a conviction. This is essentially the 
standard applied by the Court of 
Appeals, and I would affirm its judg- 
ment. 

  

7. It is the presence of deliberate prosecuto- 
rial misconduct and a desire to deter such 
misconduct, presumably, that leads the Court 
to recognize a rule more readily permitting 
new trials in cases involving a specific defense 
request for information. The significance of 

the defense request, the Court states, is sim- 

ply that it gives the prosecutor notice of what 
is important to the defense; once such notice 

is received, the failure to disclose is “seldom, 

if ever, excusable.” Ante, at 106, 49 L Ed 2d 

351. It would seem to follow that if an item of 
information is of such obvious importance to 

the defense that it could not have escaped the 

prosecutor’s attention, its suppression should 

be treated in the same manner as if there had 

been a specific request. This is precisely the 
approach taken by some courts. See e.g, 
United States v Morell, 524 F2d, at 553; 

United States v Miller, 499 F2d, at 744; 

United States v Kahn, 472 F2d, at 287; 
United States v Keogh, 391 F2d, at 146-147. 

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pA li [408 US 786] WL bod 

LYMAN A. MOORE, Petitioner, ¥ 
2 so y ‘ 

a STATE OF ILLINOIS 

408 US 786, 33 L Ed 2d 706, 92 S Ct 2562, reh den 409 US 897, 
34 1. Ed 24 155, 93 S Ct 87 

[No. 69-5001] 

Argued January 18, 1972. Decided June 29, 1972. 

SUMMARY 

After a trial in the Circuit Court, Cook County, Illinois, the accused 
was convicted of murder, with the death penalty imposed by the jury. 
At a postconviction hearing, he claimed that he was deniec a fair trial 
because the state suppressed (1) a state witness’ misidentification of 
him as a man known as “Slick,” statements by two other persons that 
he was not “Slick,” a police lieutenant’s unsuccessful attempts to find 
“Slick,” and the witness’ statement on the day of the trial that “Slick” 
looked different from the accused, and (2) a policeman’s diagram of 
the seating arrangement at the bar-restaurant murder scene, showing 
that the door through which the accused allegedly entered was behind a 
state eyewitness’ chair. He also argued that a 16-gauge shotgun in his 
possession at the time of his arrest was improperly received in evidence 
because the state ballistics technician’s opinion was that the victim was 
killed by a 12-gauge shotgun shell. The trial court denied the petition 
for postconviction relief, and the Supreme Court of Illinois affirmed both 
the conviction and the denial of postconviction relief (42 Ill 2d 73, 246 
NE2d 299). 

On certiorari, the United States Supreme Court reversed the judgment 
insofar as it imposed the death penalty, and remanded the case for further 
St In an opinion by BLACKMUN, J., expressing the views of 

embers of the court, it was held that the accused was not denied due 
process, because the evidence described in (1) above was not material to 
the issue of guilt. in the light of all the evidence; the diagram did not 
show the prosecution witness’ testimony to be false; and the introduc- 
tion of the shotgun was not so irrelevant or inflammatory as to deny the 
accused a fair trial. However, the court also ruled that the death penalty 
could not be imposed. 

MARSHALL, J., joined by DOUGLAS, STEWART, and PoweLL, JJ., con- 
curring in part and dissenting in part, agreed that the death penalty could 

Briefs of Counsel, p 980, infra. 
(33 L Ed 2d} 

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16 violate the Fourteenth Amendment, but declared that the evidence 
in (1) above was both material and absolutely critical to the defense, and 

that the failure to disclose the diagram contributed to the denial of due 

rocess. 

HEADNOTES 

Classified to U. S. Supreme Court Digest, Annotated 

Constitutional Law § 840 — due proc- 
ess — evidence ; 

1. The prosecution’s suppression of 

evidence, in the face of a defense pro- 
duction request, violates due process 

where the evidence is favorable to the 

accused and is material either to guilt 

or to punishment. 

Constitutional Law § 840 — due proc- 
ess — evidence 

2. A state witness’s misidentifica- 

tion of the accused as a man known as 

“Slick,” statements by two other per- 

sons that the accused was not “Slick,” a 

police lieutenant’s unsuccessful at- 

tempts to find “Slick,” and the wit- 

ness’s statement on the day of the 

trial that “Slick” looked different from 

the accused, are not material to the 

issue of guilt within the meaning of 
the rule that the prosecution's sup- 

pression of evidence, in the face of a 

defense production request, violates 

due process where the evidence is 

favorable to the accused and is ma- 

terial either to guilt or to punishment. 

Constitutional Law § 840 — due proc- 

ess — false testimony 

3. Under the rule that a prosecu- 
tor’s failure to correct testimony which 

he knows to be false violates the ac- 

cused’s right to due process of law, 

a policeman’s diagram of the seating 

arrangement at a card table in a bar- 

restaurant which was the murder 

scene does not show that a prosecution 
witness’s testimony concerning his 

view of the murder was false, although 

the diagram shows the witness seated 

with the door behind tim, where the 

diagram does not ind: ite the direc- 

tion in which the witnec:s was facing 

or looking at the time of the murder, 

and the witness testified that his posi- 

tion at the table gave him a view of 

the bartender-victim, and that he could 

  

Form 201 

TOTAL CLIENT-SERVICE LIBRARY® REFERENCES 

21 AM Jur 2d, Criminal Law $225 

-8 AM JUR PL & PR ForMS (Rev ed), Criminal Procedure, 

US L Ep Digest, Constitutional Law § 840 

ALR DiIGesTs, Constitutional Law § 669.5 

L Ep INDEX TO ANNO (Rev ed), Due Process of Law 

ALR Quick INDEX, Due Process of Law 

FEDERAL QUICK INDEX, Due Process of Law 
3 
| 
§ \ y 4 ANNOTATION REFERENCES 

. Conviction on testimony known to Withholding or suppression of evi- 

dence by prosecution in criminal case 
as vitiating conviction. 84 ALR3d 15. 

prosecution to be perjured as denial 
of due process. 
L Ed 2d 1991. 

2 L Ed 2d 1575, 3          



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looking toward the door when, the ac- 

cused walked in, and where nothing 

in the diagram indicates that the wit- 

ness was looking in another direction 

or that it was impossible for him to see 

the nearby door from his seat at 
the card table. 

Appeal and Error § 806.5 — state evi- 
dence rule : 

4. The issue whether a shotgun was 

properly admitted into evidence under 

Illinois law is not subject to review 

by the United States Supreme Court. 

Appeal and Error § 441 — raising fed- 

eral question 

5. On certiorari to review a state 

murder conviction, the United States 

Supreme Court can conclude that a 

due process claim is not properly pre- 

sented for review where due process 

was not argued in the state courts 

and is raised for the first time before 

the Supreme Court. 

Constitutional Law § 840 — due proc- 
ess — evidence 

6. The introduction of a 16-gauge 

shotgun into evidence in a state mur- 

der prosecution does not deprive the 

accused of the due process of law guar- 

sion that its ballistics technician, if 
called, would testify that in his opin- 

ion the waddings taken from the vic- 

tim’s body came from a 12-gauge shot- 

gun shell, where the 16-gauge shotgun 

was in the accused’s constructive pos- 

session when he was arrested and 

there was substantial other evidence 

in the record that a shotgun was used 

to kill the victim, and that he suf- 

fered the wounds one would expect 

from a shotgun fired at close range. 

Appeal and Error § 1656; Criminal 

Law §§ 82, 83 — moot questions 

7. On certiorari to review an II- 

linois murder conviction, with the 

death penalty imposed by the jury, in 

which the accused claims as error the 

rejection of six veniremen who had 

voiced general objections to capital 

punishment, the United States Su- 
preme Court need not review the ac- 

cused’s claim, because ti.e rejection of 
the veniremen could invalidate the 

sentence but not the conviction, and - 

the death penalty cannot be imposed 
since the imposition of the death penal- 

ty under statutes like those of Illinois 
violates the Eighth and Fourteenth 

Amendments. 

SYLLABUS BY REPORTER OF DECISIONS 

Moore, who was convicted of 

murder and sentenced to death for the 

shotgun slaying of a bartender at a 

Lansing, Illinois, tavern, claimed that 

he was denied a fair trial and due proc- 

ess bécause the State failed to make 

pretrial disclosure of several items of 

evidence helpful to the defense, failed 
to correct false testimony of one 

Powell, and succeeded in introducing 

into evidence a shotgun that was not the 

murder weapon. The evidence not dis- 

closed consisted of a pretrial statement 

by one Sanders that Moore was 

known te him as “Slick” and that he 

had first met “Slick” some six months 

before the killing, and documents and 

testimony that established that Moore 

was not the man known to others in 

the area as “Slick.” Powell testified 

that he- observed the killing, and the 
State did not introduce into evidence 

a diagram that, Moore claims, il- 

lustrates that Powell did not see the 

shooting. The State Supreme Court 
rejected the claim that evidence had 

been suppressed and false evidence 

had been left uncorrected, and held 

that the shotgun was properly admit- 
ted into evidence as a weapon in 

Moore’s possession when he was ar- 

rested and suitable for commission of 
the crime charged. Moore also attacked 

the imposition of the death penalty 

for noncompliance with the standards 

of Witherspoon v Illinois, 391 US 510, 
20 L Ed 2d 776, 88 S Ct 1770. Held: 

I. The evidentiary items (other than 

the diagram) on which Moore bases his 

suppression claim relate to Sanders’ 

misidentification of Moore as “Slick” 
and not to the identification, by San- 
ders and others, of Moore as the person 
who made incriminating statements 

    

 



  

  

tiary items are not material under the 

standard of Brady v Maryland, 373 US 

83, 10 L Ed 2d 215, 83 S Ct 1194. The 

diagram does not support Moore’s con- 

tention that the State knowingly permit- 
ted false testimony to remain uncorrect- 

ed, in violation of Napue v Illinois, 360 

US 264, 3 L.Ed 24 1217, 79 5:Ct 11173, 

since the diagram does not show that 

it was impossible for Powell to see the 

shooting. ‘ 

2. Moore's due process claim as to the 

shotgun was not previously raised and 

therefore is not properly before this 

Court, and in any event the introduction 

€raliy reversiile error. 

3. The sentence of death may not be 

imposed on Moore. Furman v Georgia, 
408 US 238, 33 L. Ed 2d 346, 92 S Ct 

2726. 42 111 2d 73, 246 NE2d 299, re- 

versed in part and remanded. 

Blackmun, J., delivered the opinion 

of the Court, in which Burger, C. J., 

and Brennan, White, and Rehnquist, JJ., 

joined. Marshall, J., delivered an opin- 

ion concurring in part and dissenting 

in part, in which Douglas, Stewart, and 

Powell, JJ., joined, post, p 800, 33 L Ed 
2d p 716. 

APPEARANCES OF COUNSEL 

James J. Doherty argued the cause for petitioner. 
Thomas J. Immel argued the cause for respondent. 
Briefs of Counsel, p 980, infra. 

OPINION OF THE COURT 

[408 US 787] 

Mr. Justice Blackmun 

the opinion of the Court. 

This state murder case, with the 
death penalty imposed by a jury, 
¢omes here from i Supreme Court 

of Illinois. The grant of certiorari, 
403 US 953, 29 LL Ed 2d 864, 91 S 

Ct 2280 (1971), was limited to three 

of four questions presented by the 
petition. These concern the nondis- 
closure to the defense of allegedly 

exculpatory evidence possessed by 

the prosecution or the police; the 
admission into evidence of a shot- 

gun that was not the murder weap- 
on; and the rejection of eight ve- 

niremen who had voiced general 
objections to capital punishment. 

The first and third issues respec- 
tively focus on the application of 
Brady v 

delivered 

  

[408 US 788] 

Maryland, 373 US 83, 10 
L Ed 2d 215, 83 S Ct 1194 (1963), 
and Witherspoon v Illinois, 391 US 
510, 20 L Ed 2d 776, 88 S Ct 1770 
(1968). 

I 

Petitioner Lyman A. Moore was 
ca   

   

  

convicted in 1964 of the first- : 

Zitek. Moore's 
appeal to the Supreme Court of Illi- 

nois was held in abeyance while he 
petitioned the trial court for post- 

conviction relief. After a hearing 
in January 1967, that petition was 

denied. Moore’s appeal from the de- 
nial was consolidated with his ap- 

peal from the conviction and sen- 

tence. With one justice dissenting 
and another not participating, the 
Illinois court affirmed the judg- 
ments. 42 Ill 2d 73, 246 NE2d 299 
(1969). 

  

@ 

II 

The homicide was committed on 
April 25, 1962. The facts are im- 
portant: 

A. The victim, Zitek, operated a 
bar-restaurant In the 1 pr of Lan- 
sing, southeast of Chicago. Patrici 

Hill was a waitress there. “Donald 
Q.Brien, Charles A. Mayer, and Hen- 

lex Powell were customers. 
  

  

Another bar called the Ponderosa 
Tap was located in Dolton, also 

southeast of Chicago. It was owned 

 



  

      

: 
54 

T
y
 
Ry
 

rn 
E
R
R
 

Se
 

a
 

I
 

a
 

wo
 

. 
. 

" 

    

  

        

(MOES vet § A. Lliiailia SU 

the bartender. One of Fair’s cus-/ 

tomers was Virgle Sanders. 

A third bar known as Wanda and 
Del’s was in Chicago. Delbert Jones 

was the operator. William Leon 

Thompson was a patron. 

The Westmoreland Country Club 

was in Wilmette, about 50 miles 
north of Lansing. The manager 

there was Herbert Anderson. 

B. On the evening of April 25 
Zitek VAS TENANE PAT at his place 

in Lansing. Shortly before 10 p. m. 
two men, one with a moustache - 

monisneq the pair several times for 

using profane 
[408 US 789] 

language. They con- 

tinued in their profanity and, short- 

ly, Zitek elected them About an 

hour later a man carrying a shot- 
gun entered. He laid the weapon 

  

  

  

  

   

    

SHthe par ana-shot-amd Killed Zitek. 
The gunman ran out, pursued by 

patrons, and escaped in an automo- 

bile. 

C. At the trial waitress Hill posi- 

tively identified Moore as one of the 

two men ejected from the bar and 
as the one who returned and killed 

Zitek. She testified that she had a 
clear and close view from her work- 

ing area at the bar and that she 
observed Zitek’s ejection of the two 

men and the shotgun killing an hour 

later. 

  

     

D. A second in-court identifica- 

tion of Moore as the man who Kkille 
itek was made by the customer 

Powell, Powell, who at the time 
was playing pinochle with others, 

testified that he observed Moore en- 
ter the bar with a shotgun and shoot 

Zitek; that after the shooting he 
pursued Moore; and that outside the 

bar Moore stopped momentarily, 
turned, and shouted, “Don’t come 

any further or I'll shoot you, too.” 

  

ih raliiclie iad . Liis YE: SEE 

oT two ddyS arter. tne rnurder, he 

was In the Ponderosa Tap and that 
a customer there, whom Sanders 
identified as “Slick.” remarked Yo 

  

  
  

Sanders that it was “open season - 
on bartenders” and that he had shot 

one in Lansing. At the trial San- 
ders sre Moore as the man 

TT TAS TL IDE DC iat fm— 
April 27. Moore was with another 
man who had a moustache. The two 

asked for a ride to Harvey, Illinois. 
The owner, Fair, agreed to give 
them the ride. 

F. Fair testified that Moore was 
one of the two men who requested 

and were given the ride; that during 

the journey one of them was re- 
ferred to as “Barbee”; and that one 

said “something like, ‘Well, if we 
hadn’t had that trouble w th the 
bartender in Lansing, we’d have 

been all right.” ” 

G. The Ponderosa bartender, 
Joyce, testified that Sanders 

[408 US 790] 

  

        

and 
Fair were in that tavern on April 

27: that Moore was there at the 

same time; and that he arranged 
with Fair for Fair to give Moore 

and his companion a ride. 

It is thus apparent that there 

veLe-Rositive-n-court identifications 
of Moore as the slayer by the wait- 

ress Hill 1 w- 
ell, and that there were in-court 
identifications of Moore as haying 

been present at the bar in Dolton 
two days later by Sanders, by Fair, 

ana by Joyce. | 

H. Six months after the slaying, 
in the early morning hours of Octo- 
ber 31, 1962, a Chicago police officer 
was shot at from a 1957 Ford auto- 
mobile. Two men fled the scene. The 

police “staked out” the car, and sev- 
eral hours later Moore and a mous- 

tached man, later identified as Jerry 
Barbee, were arrested when they ap- 

  

  

  

  

  

  

  
  

A
R
O
 
a
I
 

 



  

roadie ala e ! ag ERIC, 

The aatobiohlle prov ed to be owned 

by Barbee. A fully loaded sawed- 
off 16-gauge shotgun was in the 
car.! The shotgun was introduced 
in evidence at Moore’s trial.2 The 
State conceded that the gun so in- 

troduced was not the murder weap- 
on, and that the State’s ballistics 

technician, if called, would testify 
that the waddings taken from- Zi- 
tek’s body came, in his opinion, from 

a 12-gauge shotgun shell. 

I. The defense called manager 

Anderson of the Westmoreland 
Country Club as a witness. He tes- 

tified that Moore had been hired as 
a waiter there on April 24 (the day 
before the murder) ; that the club 

records indicated there was a spe- 
cial party at the club on the evening 
of—April 25; and that Moore was 

pald for working 
WS 408 US 791] 

until sometime be- 

tween 10 p.m. and midnight. The 
<ehs’S bartender testified to the 
same effect. Each of these wit- 

nesses nevertheless admitted that 
he could not remember seeing Moore 

at the club that night, but said that 

he would have known if he had been 

absent for any substantial period 

of time. The club records also in- 

dicated that Moore worked at the 

club the afternoon of April 27, when, 
according to the testimony of San- 

ders, Fair, and Joyce, Moore was at 

the Ponderosa Tap in Dolton.? 

  

  

  

  

  

  

  

J. O’Brien, the customer at Zi- 

tek’s, testified for the defense that 

he observed Zitek eject tw: e 

evenin d that Moore 

  

‘estaurant at the time ot 
tha homicide, he did not see the per- 
son who shot Zitek. A police officer 
testified that in his opinion O’Brien 
was drunk at the time. 

III 

Prigr to the trial, the Jf 

eo disclosure of “all wr 
statements taken by the police from 

‘any witness. The State agreed to 

  

  

furnish existing statements of pros- ¢ 

ecution witnesses. At the post-con- 
viction hearing, Moore argued, and 
the claim is presented here, that he 
was denied a fair trial because six 

items of evidence, unknown to him 

at the time of the trial. were not 
produced and, in fact, were sup- 
pressed by the State: 

A. On April 30, 1962, Sanders 
tatement to the police that 

be had mot The tran STar” for the 

first tie "QQOUL SIX_months_ago” 
in Wanda and Del’s tavern. Testi- 
mony at the post-conviction hearing 

by Lieutenant Turbin of the Lan- 

sing Police Department revealed 
that at the time of trial the police 
possessed an FBI report 

[408 US 792] 

that Moore 
was in Leavenworth Penitentiary 

from 1957 to March 4, 1962. That 
report thus proved that Sanders 
could not have met Moore at Wanda 
and Del’s in November 1961. The 

defense was not giv r of the 
statement made. by Sanders. The 
prosecuting attorney asserted at the 

post-conviction hearing that he did 
not recall having seen the statement 
before or during the trial. 

  

  

1. This early morning incident was re- 
counted in an earlier trial of Moore and 

Barbee for an armed robbery at Harvey, 

Illinois, on July 27, 1962. People v Moore, 
35 I11 2d 399, 401-402, 220 NE2d 443, 444- 
445 (1966), cert denied, 389 US 861, 19 
L Ed 2d 128, 88 S Ct 112 (1967). 

2. A revolver found at Moore’s feet at 

the time of his arrest and a shoulder 
holster then on his person were ruled in- 
admissible. 

3. A like alibi defense was submitted at 
the earlier armed robbery trial of Moore 
and Barbee. People v Moore, 35 Ill 24, at 

406, 220 NE2d, at 447. 

    

iw an ef 

S 
re pai 

| 

 



      

                

statement, tnat is, on April 30, 
WE raided W anda and Del’s 1 

ing for “Slick.” *Slick” was not 
“there, but Jones, the tavern’s oper- 

ator, said that he could identify 
“Slick.” After Moore was arrested, 
Jones was not asked by the police 
whether Moore was ‘Slick.” The 

defense was not advised of the raid 
until after the trial. At the post- 

conviction hearing Jones testified 
that Moore was not “Slick” His 

testimony, however, was stricken on 
the ground that it pertained to in- 

nocence or guilt and was not admis- 
sible upon collateral review. 

C. After the raid on Wanda and 
Del’s, the police secured from their 

files a picture of James E. “Slick” 
Watts and assigned Lieutenant Tur- 
bin the task of finding Watts. His 

search was unsuccessful. Moore as- 

serts that the attempt to find Watts 
was not made known to the defense 

until cross-examination of the Lan- 

sing police chief at the post-convie- 
tion hearing. 

  

D. After Moore was arrested on 
October 31, he was photographed by 

the police. The photograph was 
shown to William Leon Thompson, 
the patron of Wanda and Del’s. 
Thompson testified at the post-con- 
viction hearing that he told Lieuten- 
ant Turbin that the picture “didn’t, 

to the best of my knowledge, resem- 
ble the man that I knew” as “Slick.” 

He identified a picture of Watts as 
“the Slick I know.” Defense coun- 

sel testified that through the course 
of the trial neither the police 

[408 US 793] 

; nor 
the prosecutor advised them about 
Thompson and his disclaimer. 

E. § the start of the trial San- 

observe oore ior e first 

time sinc e 1n- 
cident at the Ponderosa Tap. San- 

ders remarked to the prosecuting 
  

aCCoIn TTT Te ed him into the courtroom 

tha TIE Person he knew. as "QLok” rson he knew.as 
was about 30240 pounds a 
than LL Ly 

a rr of the officers responded, Well 
you know how the jailhouse beans 

are.” Moore contends that he ahd 
defense counsel were not advised 

of this remark of Sanders until after 
the trial had concluded. 

F. Mayer, one of the card players 
at Zitek’s at the time of the murder, 

gave the police a written statement. 
On the back of the statement Officer 
Koppitz drew a sketch of the seat- 
ing arrangement at the card table. 
The diagram shows that the corners 
of the table pointed north, south, 
east, and west. Cardplayer Powell 

was placed on the southwest side. 
The bar was about 10 feet no:th of 

the table. The door was to the 
southwest. Moore argues that the 

diagram is exculpatory and contra- 
dicts Powell's testimony that he ob- 

served the shooting. Defense coun- 

  

  

sel testified that they were not™ 
shown the diagram during the trial. — 

  

  

identification of Moore as ders’ 
  

“Slick”; and that the evidence not 
proceed was_material and would 
ave been helpful to his defense. | 

The Illinois court held that the 
State had not suppressed material 
evidence favorable to Moore, that 
the T 

[408 US 794] 

record shows that the prosecu- 
tion presented its entire file to de- ~ 
fense counsel, and that no further 
request for disclosure was made. 42 
Ill 2d, at 80-81, 246 NE2d, at 304. 

/ 

  

  
  

AN 

   



  

  ER a Rvs Lo HP 
claim that a specific request is not 

an “indispensable prerequisite” for 
the disclosure of exonerating evi- 

dence by the State and that the 
defense could not be expected to 

make a request for specific evidence 
that it did not know was in exist- 
ence. 

In Brady v Maryland, 373 US 83, 

101. Ed 2d 215,83 S Ct 1194 (1963), 
the petitioner and a companion were 
found guilty by a jury of first-de- 

gree murder and were sentenced to 
death. In his summation to the 
jury, Brady’s counsel conceded that 

Brady was guilty, but argued that 
the jury should return its verdict 

“without capital punishment.” Pri- 
or to the trial, counsel had requested 

that the prosecution allow him to 
examine the codefendant’s extra-ju- 
dicial statements. Some of these 
were produced, but another, in 

which the codefendant admitted the 
actual homicide, was withheld and 
did not come to Brady’s notice until 

after his conviction. In a post-con- 
viction proceeding, the Maryland 

Court of Appeals held that this de- 
nied Brady due process of law, an 
remanded the case for retrial on th 

issue of punishment. This Cou 
affirmed. It held “that the suppre 

    

  

    

   

   
   

    

  

     

1408 US 795] 

char- 
acter for the defense, and (¢) the 
materiality of the evidence. These 
are the standards by which the pros- 

ecution’s conduct in Moore's case is 

to be measured. 

   

  

Moore’s counsel asked severgl 
preseeution-avitnesses if they had 

ivep statements to the police. Ea 
witness (Hill, Powell, Fair) who h 

given a statement admitted doi 

  

  

- \ ry {/ 

{ A v 

d UC ; 

  

   

  

    
diate ndered. The same inqu 

Bost vy igh of witness San 
He was the only state witness w 
was not asked THe qUESLIO y. e as 3 

eg) » 3 Iv LY post-conviction nearing the inquiry €o.ue 

was made. Sanders admitted mak- ¢ fabemeln 
ing a statement to the police and 
the statement was tendered. 

  

  

     
    

  

   

   

The record discloses, as the Illi- 

nois court states, 42 Ill 2d, at 80, 

246 NE2d, at 304, that theeRbtses. 
cutor at the trial submitted his en- 
ire file to the defense. e prose- 

cutor, however, has no recollection 

that Sanders’ statement was in the: 
e statement, therefore, et 

ther was in that file and not noted 

by the defense or it was not in the 
possession of the prosecution at the 

  

       
      

  

  sion by the prosecution of evidence 
favorable to an accused upon request 
violates due process where the evi- 

dence is material either to guilt or 

to punishment, irrespective of the 
good faith or bad faith of the pros- 
ecution.” 373 US, at 87, 10.L. Ed 
24 at 218, 

(LL The heart of the holding in 
Brady is the prosecution’s suppres- 

ono evITeTe Tn The Ta 7 & 
defense production fequest, where 

am br the ac- 
and 1s material either to guilt 

or to punishment. Important, then, 

are (a) suppression by the prosecu- 
= tion after a request by the defense, 

  

   

  

      

  

   

   

  

   the.police abandoned when evewit- 
ngsses to the killing and witnesses to 
Moore's presence at the Ponderosa 

were found. Unquestionably, as the 

State now concedes,* Sanders was in 

error when he indicated to the police 
that he met Moore at Wanda and 
Del’s about six months prior to April 
30, 1962. Moore’s incarceration at 

Leavenworth until March shows 

that conclusion to have been an in- 

   



  
    

        
  

      

stance of mistaken identity. But 

the mistake was as to the identifica- 

tion of Moore as “Slick,” not as to 
[408 US 796] 

the presence of Moore at the 
Ponderosa Tap on April 27,5 “Sand- 
ers’ testimony to the effect that 

it was Moore he spoke with at the 
Ponderosa Tap in itself is not sig- 
nificantly, if at all, impeached. In- 

deed, it is buttressed by the testi- 
mony of bartender Joyce and oper- 

ator Fair, both of whom elaborated 
the incident by their description of 

the man, and by Moore’s request for 

a ride to Harvey, Illinois, Fair's 
providing that ride, and Fair’s hear- 

ing, on that trip, the reference to 
one of the men as ‘Barbee,’ ” and a 

second reference to trouble with a 
bartender in Lansing. 

The other four of the first five 

items—that Jones told police he 

could identify “Slick” and subse- 
quently testified that Moore was not 

“Slick”; that the police had a pic- 

ture of Watts and assigned the lieu- 

tenant, unsuccessfully, to find 
Watts; that Thompson had been 

shown a picture of Moore and told 
the police that Moore was not 

“Slick”; and that on the day of the 

trial Sanders remarked that the 
man he knew as “Slick” looked 
heavier than Moore—are in exactly 

the same category. They all relate 

  

tu “Slick,” not Moore, and quite nat 

urally go off on Sanders’ initial mis- 

identification of “Slick” with Moore. 

[2] None of*tHE"fwre, items serves 

to impeachlin any waygthe positive 

iflentification bv Hill and by Powell 
of 

     

    [408 US 797] 

Moore as Zitek’s killer, or the 
testimony of Fair and Jdyce that 
Moore was at the Ponderosa Tap on 

April 27, or the testimony of Fair 
that the moustached Barbee was ac- 

companying Moore at that time, and 
that one of the two men made the 

additional and undisputed admission 9 (+ fend 
on the ride to Harvey. ~     

  

  

. nub hg 

in the light of all the evidence, that | = .. ned § 
Sanders’ misidentification_of-Moore | 7 i 
as. Slick was not material to the is- lay A 

sue of guilt. 3 A 
The remaining claim of suppres- ° dag 

sion relates to the diagram.on the gun rh 
bEeR=Or~Mayers statement to the ¢° OQ, 1. 
police.® Moore contends that the 5 lo 
diagram TWOWS that Powell was by Wr B5Y, 
SEated with his Dack to the entrance hy oo. : w) 
to Zitek’s and, thus, necessarily con- ® ' 4 nd 
tradicts his testimony that he was pave > 

looking toward the entrance as he MeL 
sat at the card table, and that the ; : 
State knowingly permitted false 
testimony to remain uncorrected, in 

violation of Napue v Illinois, 360 US 
264, 3 1. E4A.24 1217, 79S Ct 1173 
(1959). 

  

4. Brief for Respondent 4; Tr of Oral 
Arg 28. 

5. The dissent observes, post, at 804, 33 

L Ed 2d at 718, “When confronted with 
this fact [Moore’s imprisonment at Leaven- 
worth], -Sanders indicated that it was im- 

possible that petitioner [Moore] was the 
man with whom he had spoken in the 
Ponderosa Tavern.” This is a misreading 
of Sanders’ testimony. The question and 
Sanders’ answer were: 

“Q. And did you tell me and also later 
on, did you tell the policeman from the 
State’s Attorney’s Office that if you had 
known that this fellow, Lyman Moore, was 
in the Federal Penitentiary until March 
4, 1962, you would definitely not have 
identified him as being Slick that you 
knew? 

- the cross-examination of Officer Koppitz 

“A. If he’s in jail it would have been i 
impossible to be the same man.” Abstract 

of Record 296. 
6. Contrary to the assertion ou the dis- 

sent that the Mayer statement, with its 
accompanying diagram, was never made 
available to the defense, post, at 803, 33 
L Ed 2d at 718 and 809, 33 LL Ed 2d at 721, 

the trial transcript indicates that during 

a request was made by the defense for 
all written statements taken by the officer 
from persons in Zitek’s restaurant at the 
time of the shooting. The court granted 
the request and the record recites that 
statements of Mayer and others were fur- 
nished to defense counsel.  



  Se 

In Napue the inci : 

tion witness at SR Ss mur or ta 
was an accomplice then serving a 
sentence for the crime. He testified, 
in response to an inquiry by the 

prosecutor, that he had received no 
promise of consideration in return 
for his testimony. In fact, the pros- 
ecutor had promised him considera- 
tion, but he did nothing to correct the 
witness’ false testimony. This Court 
held that the failure of the pros- 

ecutor to correct the testimony, 
which he knew to be false, denied 

Napue due process of law, and that 
this was so even though the false 
testimony went only to the credibil- 

ity of the witness. See 
[408 US 798] 

eCii- 

also Miller 

v Pate, 386 US 1, 17 L. Ed 2d 690, 37 

S Ct 78 (1967); and Alcorta v 
Texas, 355 US 28, 22 L Ed 2d 9, 78 

S Ct 103 (1957). 

[3] We are not persuaded that 

the diagram shows that Powell's 
testimony was false. The officer 
who drew the diagram testified at 

the post-conviction hearing that it 

did not indicate the direction in 
which Powell was facing or looking 
at the time of the shooting. Powell 
testified that his position at the 

table gave him a view of the bar- 
tender, that at the moment he could 
not bid 1n the pinochle game and h 

1a nis hand down and was looki 

toward the door when Moore walked 

i in the diagram 
to indicate that Powell was looking 

in another di jon or that it was 
impossible for him to see the near- 

by door from his seat at the card 
table. Furthermore, after the 

shooting he pursued Moore but 

  

  

  

  

SLU 4 ed 

that he, too tht ie Tot 

In summary, the background 

presence of the elusive “Slick,” 
while somewhat confusing, is at 

most an insignificant factor. The 
attempt to identify Moore as “Slick™ 
encountered difficulty, but nothing 

served to destroy the two-witness 
identification of Moore as Zitek’s as- 

sailant, the three-witness identifica 
tion of Moore as present at the 

Ponderosa Tap, the two-witness 

identification of Moore as one of the 
men who requested and obtained a 

ride from the Ponderosa in Dolton to 
Harvey, Illinois, and Fair's tes- 

timony as to the admission made on 

that ride. 

We adhere to the principles of 
Brady and Napue, but hold that the 
present record embraces no violation 

of those principles. 

IV 

The 16-gauge shotgun was ad- 

mitted into evidence at the triai over 
the objection of the defense that it 
was not the murder weapon, that it 

had no connection with the crime 

charged, and that it was inadmis- 

sible under Illinois 
[408 US 799] 

law.” During his 
closing argument to the jury, the 

prosecuting attorney stated that the 
16-gauge shotgun was not used to 
kill Zitek,® but that Moore and his 

companion, Barbee, were “the kind 
of people that use shotguns.’””? 

The Supreme Court of Illinois held 
that the shotgun was properly ad- 
mitted into evidence as a weapon in 

Moore’s possession at the time of 
his arrest, and was a weapon “suit- 
  

7. See n 2, 
8. Curiously, the State argues in this 

Court that it is possible that the 16-gauge 
shotgun was the murder weapon. Brief 
for Respondent 20-21. 

9. Later in his closing argument the 
prosecuting attorney referred to the 16- 

gauge shotgun and stated again that a 
12-gauge shotgun killed Zitek. He argued 
that a shotgun is not “the most humane 
type weapon” and that the death penalty 
is appropriate in a case in which a shot- 
gun is used to murder a person.  



        

        

        

-parged . . sven tnougn tere 

is no showing that it was the actual 
weapon used.” 42 Ill 2d, at 78, 246 
NE2d, at 303. Moore claims that 
the gun’s introduction denied him 

due process. 

[4, 51 Of course, the issue whether 

the shotgun was properly admitted 

into evidence under Illinois law is 

not subject to review here. The due 
process claim, however, appears to 

be raised for the first time before us. 
There is no claim by Moore, and 

there is nothing in the record to dis- 

close, that due process was argued in 
the state courts. We could con- 
clude, therefore, that the issue is not 

one properly presented for review. 

[6] In any event, we are unable 

to conclude that the shotgun’s in- 

troduction deprived Moore of the 

due process of law guaranteed him 
by the Fourteenth Amendment. The 

16-gauge shotgun, found in the car, 
was in the constructive possession of 
both Moore and Barbee when they 

were arrested after the shooting in- 
cident on October 31. There is sub- 

stantial other evidence in the record 
; [408 US 800] 

that a shotgun was used to kill 

Zitek, and that he suffered the 
wounds one would expect from a 

SEPARATE 

Myr. Justice Marshall, with whom 
Mr. Justice Douglas, Mr. Justice 
Stewart, and Mr. Justice Powell 
join, concurring in part and dissent- 
ing in part. 

Petitioner was convicted of 
murder in the -Illinois state courts 
and sentenced to death. The Su- 
preme Court of Illinois affirmed 
the conviction and sentence by a 
divided court. 42 Ill 2d 73, 246 NE 
2d 299 (1969). This Court holds 
that the imposition of the death sen- 

tence violated the principle estab- 

testimol,” as to the murder itself, 
with all the details as to the shotgun 
wounds, is such that we cannot say 
that the presentation of the shot- 
gun was so irrelevant or so inflam- 

matory that Moore was denied a fair 
trial. The case is not federally re- 
versible on this ground. 

V 

[7] Inasmuch as the Court to- 
day has ruled that the imposition of 

the death penalty under statutes 
such as those of Illinois is violative 
of the Eighth and Fourteenth 
Amendments, Furman v Georgia, 

408 US p 238, 33 LL Ed 2d p 346, 93 

S Ct 2726, it is unnecessary for us 
to consider the claim of noncompli- 

ance with the Witherspoon stand- 
ards. In Witherspoon, 391 US, at 
523 in n. 21, 20 L. Ed 2d at 785, the 
Court stated specifically, “Nor, 
finally, does today’s holding render 

invalid the conviction, as opposed to 
the sentence, in this or any other 

case” (emphasis in original). The 
sentence of death, however, may not 

now be imposed. 
The judgment, insofar as it im- 

poses the death sentence, is re- 
versed, Furman v Georgia, supra, 

and the case is remanded for further 

proceedings. 

OPINION 

lished today in Furman v Georgia, 
4083 US 238, 33 1. Ed 2d 346, 93 S Ct 

2726, and that the sentence must 
be vacated, but the Court upholds 
the underlying conviction. 1 agree 
with the majority that the sentence 

is invalid and 
[408 US 801] 

join Part V of the 
opinion of the Court. 1 also agree 

that the introduction of the shotgun 

into evidence at petitioner's trial 
did not violate the Fourteenth 

Amendment.! 
  

1. I find the constitutional question pre- 
sented by the introduction of this evi- 

dence to be much harder than the ma- 

jority seems to. It was uncontradicted at 

  

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disclose to petitioner certain evi- 

dence that might well have been of 
substantial assistance to the de- 
fense, the State denied him a fair 

trial. 

The opinion of the Court relates 

at some length the facts relating to 

the crime with which petitioner was 

charged, the circumstances of his 
arrest, the course of the trial, and 
the developments at the post-convic- 

tion hearing. As these facts are 

complicated and quite confusing, 
[408 US 802] 

1 
have not reiterated them here. 

Rather, I have emphasized those 
that seem to me to be particularly 
important and I have added several 
details that are omitted from the 

Court’s opinion. ) 

Two interrelated defenses were 
rafSed agains e charge of murder 

—_— i isidentification. Peti- 

tioner’s theory of the case was that 

he was not at the scene when the 

murder was committed and that 

those witnesses who testified that 

they saw him there were confusing 

him with someone else. 

  

Only two witnesses affirmatively 

murder and that they coul:t identify 

petitioner as the assailant. They 

were Patricia Hill, a waitress in the 

victim’s bar, and Henley Powell, a 

customer. Aside from their tes- 

timony, the only other evidence in- 

troduced against petitioner related 
to statements that he allegedly 

made two days after the murder. 

“There is a problem with the eye- 
witness testimony of Powell that did 

not become apparent until the post- 

conviction hearing in the trial court. 

At trial he testified as follows: 

“The defendant (indicating) came 

into the tavern while I was at the 

table. I first saw him when he 

walked in the door with a shotgun. 

I was sitting at the table along the 

wall. I was facing where the bar- 

tender was standing and I also had 

a view of the man that walked in the 

door. I was looking to the west.” 

Abs 32. 

But at the post-conviction hearing 

it was discovered that police officers 

who had investigated the murder 

possessed a statement by one Charles 

Mayer, who had been sitting with 
  

trial that the weapon introduced against 
petitioner had no bearing on the crime 
with which he was charged. It was, in 

fact, clear that the shotgun admitted into 
evidence was a 16-gauge gun, whereas 

the murder weapon was a 12-gauge gun. 
Despite the fact that the prosecution con- 
ceded this in a pretrial bill of partic- 
ulars, it did everything possible to obfus- 
cate the fact that the weapon admitted 
into evidence was not the murder weapon. 
This was highly improper. The record 
also indicates that the trial judge was con- 
fused as to why he thought the weapon 
should be admitted. At one point he 
said, “There was testimony here that this 

was a shotgun killing. And I can see 
nothing wrong if they say that this de- 
fendant, who will be identified by other 
people, was apprehended with this gun.” 
Abstract of Record (Abs), 65. If the 

trial judge meant to imply that because 
the crime was committed with a shotgun, 
it was sufficient to prove that the peti- 
tioner possessed any shotgun, whether or 
not it was the murder weapon, he surely 
erred. But it is impossible to tell from 
the record in this case precisely what was 
intended, or whether the judge confused 
the jury when he admitted the weapon. 
Although this highly prejudicial and ir- 
relevant evidence was introduced, and al- 
though the prosecution did its best to lead 
the jury to believe that there was a re- 
lationship between the murder weapon and 
the shotgun in evidence, the fact that peti- 
tioner’s counsel explained to the jury that 
the two weapons were not identical is, on 

the very closest balance, enough to war- 
rant our finding that the jury was not 
improperly misled as to the nature of the 
evidence before it.