Navigating Brady and Giglio: Is the Prosecutor Withholding Important Evidence?

June 23, 2021 Criminal Defense

What is Brady Evidence?

The term “Brady evidence” comes from the holding of Brady v. Maryland, a United States Supreme Court case in which it was established that the State or Prosecutor has the affirmative duty of disclosing all evidence within their possession or, with due diligence, could be in their possession, that is material in regard to guilt or punishment.[1] If such evidence is not turned over by the Prosecutor, it results in a due process, or constitutional, violation, no matter the good or bad intentions of the Prosecutor.[2] Evidence is “material” if there is a reasonable probably, or a probability sufficient to undermine confidence in the outcome of the trial or sentencing in a criminal case, that disclosing such evidence will change the outcome of a criminal proceeding.[3] Essentially, Prosecutors have the duty to present all facts known that could be favorable to the defendant.[4] Today, Brady and other cases discussing the Brady rule enforce a rule that Prosecutors have a “duty to learn of”[5] and turn over to defense counsel or the defendant all “favorable,”[6] “material”[7] information known by the Prosecutor or those acting on behalf of the Prosecutor, including the police.[8] Prosecutors must turn over this information to defense counsel or the defendant in a timely manner so that defense may use the disclosed material effectively and appropriately prepare a defense.[9] Furthermore, the Prosecutor has a duty to learn of any favorable information, as the Brady rule does not apply just to evidence within the Prosecutor’s existing knowledge.[10]

What is Giglio Evidence?

Nine years after Brady came another landmark United States Supreme Court decision, Giglio v. United States, which held that Brady evidence includes “exculpatory” material, or material that could prove a defendant’s innocence or mitigate their guilt, as well as impeaching information that could be used to cast doubt on the testimony and credibility of the Prosecution’s witness.[11] Giglio imposed upon Prosecution the affirmative duty to turn over to the defense not only evidence that would negate the defendant’s guilt, but also evidence that could be used to impeach the credibility of the prosecution’s witnesses, including law enforcement officers.[12]

What are Examples of Brady and Giglio Evidence?

Examples of Brady Evidence[13]

  • “Evidence that tends to exonerate the accused
  • Evidence that materially impeaches any fact or witness
  • Evidence that would lessen the punishment
  • Any evidence that supports a valid defense to the charge
  • Any exculpatory (could prove the innocence of the accused) evidence.”

Examples of Giglio Evidence[14]

  • Prior criminal records of witnesses
  • Other acts of misconduct of witnesses
  • Promises of leniency or immunity offered to witnesses
  • Evidence that would show a witness’s bias towards the accused

How Can a Criminal Defense Attorney Ensure That You Get Access to Brady/Giglio Evidence?

In order to ensure that the Prosecutor in you or a loved one’s case is not withholding information that could prove innocence or impeach a witness, educated and trained defense counsel must be retained. Well-prepared defense attorneys will file a Brady/Giglio motion requesting the evidence that could help in the criminal case of you or a loved one. Filing a motion for such evidence to the Prosecutor is extremely important because it puts the Prosecutor on notice and imposes a further obligation on them because a failure to respond to a Brady/Giglio motion is “seldom, if ever, excusable.”[15] However, defense counsel familiar with Brady and Giglio rules is imperative because what the Prosecutor discloses after a request is final, so the motion must be extremely specific and avoid any generality.[16]

Contact a Tallahassee criminal defense lawyer as soon as possible to discuss you or a loved one’s options in attaining information that could be extremely beneficial to the outcome of a criminal case. Don Pumphrey and the members of the legal team at Pumphrey Law Firm have expansive experience in obtaining Brady and Giglio information and will ensure that no evidence that could change the outcome of a criminal case will fall through the cracks. Call a defense attorney today at (850) 681-7777 or send an online message to discuss your options during and open and free consultation with an attorney in our legal team.

This article was written by Gabi D’Esposito

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[1] Brady v. Maryland, 373 U.S. 83 (1963).

[2] Id. at 87.

[3] Id.

[4] Smith v. State, 95 So.2d 525, 527 (Fla. 1957).

[5] Kyles v. Whitley, 514 U.S. 419, 437 (1995).

[6] Brady, 373 U.S. at 87.

[7] Id.

[8] Kyles, 514 U.S. at 437.

[9] Id.

[10] Id.

[11] Giglio v. United States, 405 U.S. 150 (1972).

[12] Id.

[13] Discovery Requirements, The Florida Bar, available at:

[14] Giglio Information Law and Legal Definition, USLegal, available at:

[15] United States v. Bagley, 473 U.S. 667, 681-83 (1985).

[16] Johnson v. Butterworth, 713 So.2d 985 (Fla. 1998).

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