Mid-trial Disclosure of Brady Material May Violate Due Process

United States v. Burke, ___ F.3d ___, 2009 WL 1926850 (10th Cir. 2009)
Clarifying older case law that might have implied differently, the Court holds that belated, mid-trial disclosure of impeachment or exculpatory information per Brady violates due process, if it is shown that an earlier disclosure would have created a reasonable doubt of guilt. The defense must articulate to the court why the delay is materially prejudicial. The district court then has discretion to determine an appropriate remedy: exclusion of the witness, limitations on the scope of testimony, instructions to the jury, or even mistrial.

Although a Brady violation, Defendant failed to articulate why the disclosure during government examination of its own witness of witness’s plea agreement with government materially prejudiced him so that the sanction of striking his testimony would be appropriate. Defendant thoroughly cross-examined the witness on the agreement once it was disclosed. Although Defendant now argues on appeal that he was prejudiced in how he designed his trial strategy, that was not an argument made to the district court. Not plain error. Harmless error in suppression of cross-examination of government witness: that witness’ testimony was cumulative of other testimony.