Brady is all about requiring the prosecution to disclose exculpatory information to the defense, and a careful reading of the case will explain what is meant by exculpatory information. Giglio is also about exculpatory information, but a particular kind of information that includes disclosure of certain information regarding a prosecution witness. At its basic level, Giglio requires the prosecution to disclose impeachment information regarding a prosecution witness. For instance, is the witness getting paid by the government? Is the witness getting immunity? Did the government give the witness assistance in some form? If so, then the information must be disclosed to the defense. In our social media driven world there is a concern about “electronic” communications and the possibility that those communications may contain content that should be disclosed. For example, how would these cases apply to an email or text message in which a law enforcement officer who is a prosecution witness comments that a key prosecution witness is being “deceptive?” Or, what about a social media post by a law enforcement officer who is a prosecution witness that shows a bias for a particular group of individuals, including the defendant. I also attached a March 30, 2011 Memorandum from the U.S. Department of Justice that discusses the obligation on federal prosecutors to preserve electronic communications and a reminder that some of these communications may have to be revealed to the defense.
There are a few essentials that you must understand and be able to define:
1. What is exculpatory information.
2. What is meant by impeachment.
3. What does “materiality” mean in these cases.
4. What happens to a conviction when a Brady violation occurs.
