What is a “Brady Motion” and how do I bring one?

A Brady motion is a defendant’s request for the prosecution in a criminal case to turn over any potentially exculpatory evidence (which means evidence that may be favorable to the accused).

Defense attorneys generally bring this motion as part of the pretrial process, or later in a case, when they believe that prosecutors are withholding such information.

Examples of exonerating information a defendant may seek through a Brady motion:

• video footage that shows a defendant was not at the scene of a crime.
• the identity of a witness that saw another person commit the crime in question.
• fingerprint evidence that shows another person was holding a gun in a murder case.

If a party files a Brady motion, and a judge determines that the district attorney has withheld favorable evidence (“Brady material”), then the motion could result in:

• a reversal of a conviction,
• a dismissal of charges,
• a mistrial, and/or
• possible charges of prosecutorial misconduct.

Please note that a Brady motion is not the same thing as a California Pitchess motion. The latter is a defendant’s request for information contained in a law enforcement officer’s personnel file. Defense attorneys typically file these motions when they believe their client has been a victim of police misconduct.

California Senate Bill 1421 became law in September 2018. This new law makes a Pitchess motion unnecessary for some types of information requests.

Our California criminal defense attorneys will highlight the following in this article:

• 1. What is a Brady motion?
• 2. What is a Brady disclosure?
• 3. When does a defendant bring a Brady motion?
• 4. What is the possible result of bringing a Brady motion?
• 5. Is a Brady motion the same as a Pitchess motion?
• 6. What is a Penal Code 995 motion?
• Additional reading

1. What is a Brady motion?

A Brady motion is a defendant’s request that the prosecution in a California criminal case turns over any potentially “exculpatory” evidence or evidence that may be favorable to the accused.

A defense attorney files this motion as part of the pretrial process, or later in a case, when they believe prosecutors are withholding such information.

The motion gets its name “Brady” because of the United States Supreme Court case Brady v. Maryland. This case says that in any criminal proceeding, prosecutors have a constitutional duty to give the defense any evidence that might show the defendant is innocent of the crime charged. Failure to do so may constitute a Brady violation.¹

Please note that a Brady motion can be filed throughout a criminal proceeding, not just before a criminal trial begins. This is because prosecutors have an ongoing legal duty to turn over all exculpatory material, whenever they find it.

Examples of evidence that a Brady motion might seek include:

• DNA evidence that does not place you at the crime scene,
• fingerprints that show you were not at the crime scene,
• witness statements that verify your alibi,
• surveillance video that shows you were not near the crime scene,
• physical evidence, and
• recordings.

The evidence must have a reasonable probability of showing that an accused did not commit the crime he is charged with.

Note that these motions are formal legal motions that require a hearing involving the following parties:

• the judge presiding over the case,
• the prosecutor, and
• the defense attorney.

During the hearing, the defense asserts that the prosecution is withholding certain information showing that a defendant did not commit the crime in question. The prosecution then usually denies the assertion, or states that certain evidence is not material or favorable to an accused.

At the hearing, a judge will determine whether or not any evidence is

• material or
• immaterial.

If the evidence is material, the judge will compel disclosure by the prosecution.²

2. What is a Brady disclosure?

A Brady disclosure is when prosecutors provide to the defense any evidence that is favorable to the criminal defendant.

The U.S. Supreme Court mandated this disclosure in the case of Brady v. Maryland.³ The court said that the divulgence of this evidence is part of a defendant’s Due Process right under the Fifth Amendment to the U.S. Constitution.

If there is evidence favorable to the accused, prosecutors typically disclose it during the discovery phase of a criminal case. And, the evidence is provided after defense attorneys make a formal request for such information.

3. When does a defendant bring a Brady motion?

A defense attorney files a Brady motion when he/she believes that prosecutors have withheld any information or evidence subject to a Brady disclosure.

Please note that a Brady motion can be filed throughout a criminal proceeding, not just before a criminal trial begins. This is because prosecutors have an ongoing duty under the Brady Rule to turn over all exculpatory information, whenever they find it.

This means a Brady motion can be brought at any of the following times:

• during the discovery phase,
• during pre-trial motions,
• just prior to a trial starting,
• after a prosecutor’s opening argument,
• after the examination of any of the State’s witnesses,
• after the prosecutor’s closing argument, and
• prior to any sentencing of the defendant.

4. What is the possible result of bringing a Brady motion?

A Brady motion will either be denied or granted. The outcome depends on the facts of a case.

If prosecutors have sufficiently disclosed all evidence favorable to the defense, or if there is not any, then the motion will have little impact and will be denied.

If, however, a judge determines that a prosecutor has withheld evidence, then the motion will be granted, and the judge will order the prosecution to turn over the evidence in question.

In these cases, the granting of the motion could result in:

• an overturning/reversal of a conviction if the judge believes the new evidence shows the defendant is not guilty,
• a dismissal of charges if the judge believes there is no longer probable cause to prosecute the defendant,
• a mistrial if the prosecution’s actions denied the defendant due process (which would require the D.A. to bring an entirely new trial if they still wish to pursue charges), and/or
• possible charges of prosecutorial misconduct if the D.A.’s actions were especially egregious – the defendant may even have grounds to sue for malicious prosecution to pay for their damages.

5. Is a Brady motion the same as a Pitchess motion?

No. A California “Pitchess motion” is a defendant’s request for information contained in a law enforcement officer’s personnel file.⁴

California criminal defense attorneys typically file a Pitchess motion as part of the pretrial process when they believe their client has been a victim of police misconduct.

California Senate Bill 1421 was signed into law in September 2018. This new law makes a Pitchess motion unnecessary for some types of information requests.

Under SB 1421, four types of police records are now open for public inspection. These records pertain to the situations when:

1. an officer shoots his gun at a person;
2. an officer uses force against another person and the result is death or great bodily injury;
3. there is a prior finding that an officer committed a sexual assault; and,
4. an officer commits a dishonest act (e.g., commits perjury or files a false report).⁵

After Senate Bill 1421, Pitchess motions are still relevant if:

• a defendant seeks information from an officer’s personnel file; and,
• that information is not authorized for inspection under SB 1421.

Examples of information a defendant may seek that is not covered within SB 1421 may include:

• records which show that an officer racially profiled; or,
• records which show that an officer coerced a confession.

6. What is a Penal Code 995 motion?

A motion under California Penal Code 995 asks a trial judge to dismiss all or part of a criminal case.

It applies in cases in which:

1. all the charges are felony charges, or
2. the charges include both felony and misdemeanor charges.⁶

The motion may also apply to a prosecutor’s request for

• sentencing enhancements and/or
• allegations of special circumstances.

All the charges – including enhancements and special circumstances – must have factual support. The preliminary hearing judge must decide if those facts are strong enough to merit a trial.

If the defense believes the preliminary hearing judge decided incorrectly, they can bring a 995 motion. This asks the trial judge to review the preliminary hearing judge’s decision.

Additional reading

For more in-depth information, refer to these scholarly articles:

• A Solution to Brady Violations: Neutral Evidence Referees and Stricter Sanctions – Loyola Law Review.
• Legally Blind: Hyperadversarialism, Brady Violations, and the Prosecutorial Organizational Culture – St. John’s Law Review.
• Brady Violations: An in-Depth Look at Higher Standard Sanctions for a High-Standard Profession – Wyoming Law Review.
• Mapping the Path of Brady Violations: Typologies, Causes & Consequences in Erroneous Conviction Cases – Syracuse Law Review.
• Understanding the Significance & Complexity of the Brady Rule – Journal of Student Research.

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