Certain types of impeachment evidence are required to be disclosed by the Government to the defendant upon the defendant’s request. The disclosure of evidence by the Government upon the defendant’s request is commonly referred to as disclosure of Brady materials. Brady materials must be known to the Government and must be material to the defendant’s case to require disclosure. The requested impeachment evidence must have been admissible at trial because inadmissible evidence would not have had an effect on the outcome of the trial. Types of impeachment evidence that are discoverable include:

• promises of leniency for Government witnesses.
• plea agreements with respect to criminal charges against witnesses.
• Negotiations with respect to criminal charges against witnesses.
• Testimony that was given in exchange for governmental favors.

It is unclear whether presentence reports constitute discoverable Brady material for impeachment purposes. presentence reports may be used for impeachment purposes. Some circuits have permitted disclosure of the reports to the defendant upon his request.

If the impeachment evidence is disclosed at the defendant’s trial, prejudice may result to the defendant because he was unable to prepare for the disclosure of such evidence ahead of time. It is within the trial court’s discretion to permit such evidence to be introduced or to grant the defendant a new trial on the basis of a Brady violation, if requested by the defendant.

Timing of Disclosure

The Government is required to disclose impeachment evidence in a reasonable time frame so that the defendant is able to use the evidence in his case. However, several courts have held that if the Government turns over impeachment evidence on the eve of defendant’s trial, the impeachment evidence is not untimely.

Brady Violation

If the Government fails to disclose Brady materials by failing to disclose impeachment evidence to the defendant upon his request, a new trial may be required to rectify the due process violation suffered by the defendant.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.