The holding in Brady v. Maryland requires disclosure only of evidence
that is both favorable to the accused and material either to guilt or
punishment. A fair analysis of the holding in Brady indicates that implicit
in the requirement of materiality is a concern that the suppressed evidence
might have affected the outcome of the trial.
Reversal was therefore not warranted because “the disclosure would have had no
effect upon [the district court’s] finding that [Bagley] was guilty of the offenses for
which he was convicted.”
Commentators have attacked Bagley as indefensible in light of the specific
requirements of the Sixth Amendment’s confrontation clause. Even if the ruling is
constitutionally sound, it grants the prosecution a clear advantage over the defense:
the government may “induce a witness to lie, fail to disclose the inducements, and
then escape reversal on the grounds that disclosure would not have produced a
different result.” The defendant may therefore be deprived of this opportunity to
challenge the veracity of the testimony.
B. Cautionary Instructions to the Jury
When a witness testifies pursuant to a cooperation agreement, the court must
inform the jury of the exact nature of the agreement and instruct the jury to weigh the
accomplice’s testimony with care. In most instances, the instruction represents “no
more than a commonsense recognition that an accomplice may have a special
interest in testifying, thus casting doubt upon his veracity.” Moreover, the
instruction must be worded in a way that conforms with the burden of proof at trial.