Brady Violation: Frequently Asked Questions (FAQ)
(Post-Conviction Relief – Texas and Federal Habeas Corpus)
What is a Brady Violation?
A Brady Violation occurs when the prosecution fails to disclose evidence that is favorable to the accused and material to guilt or punishment. This rule comes from the U.S. Supreme Court case Brady v. Maryland, 373 U.S. 83 (1963) -pdf-.
Put simply:
If prosecutors had evidence that could help the defendant or undermine the State’s case - and they did not turn it over - that is a Brady violation.
What counts as “favorable” evidence?
Evidence is favorable if it:
- Helps prove the defendant’s innocence
- Lessens the defendant’s punishment
- Undermines the credibility of a government witness
- Supports a defense theory of the case
Examples include:
- Witness statements contradicting State witnesses
- Deals or promises made to cooperating witnesses
- Evidence pointing to another suspect
- Recantations, affidavits, or inconsistent statements
- Forensic test results that do not support guilt
What does “material” mean?
Evidence is material if there is a reasonable probability that the result of the trial or punishment would have been different if the evidence had been disclosed.
The test is not “Would the jury definitely acquit?” but rather:
Would the withheld evidence undermine confidence in the outcome?
How do Brady Violations affect a conviction?
A serious Brady violation can be grounds for:
- Overturning the conviction
- Remanding the case for a new trial
- Suppressing improper evidence
- Reconsidering sentencing
Brady claims are often raised in post conviction writs, particularly Texas 11.07 writs and federal habeas petitions.
What are examples of Brady Violations seen in real cases?
- The State hides a witness statement contradicting the prosecution’s story.
- A cooperating witness received a plea deal, but the deal was not revealed to the defense.
- Forensic experts gave opinions that were buried or ignored.
- Police reports showed inconsistent suspect descriptions that were never turned over.
How is a Brady claim raised in a post conviction writ?
To raise Brady in a post conviction writ, you must show:
- The State possessed favorable evidence.
- The evidence was suppressed (not disclosed).
- The evidence was material to guilt or punishment.
The post conviction attorney gathers proof through:
- Obtaining police files, prosecution files, and case records
- Interviewing witnesses
- Collecting affidavits
- Forensic review
- Reviewing trial transcripts
- Filing open-records requests (when appropriate)
Can Brady violations be discovered years after the trial?
Yes. Many Brady violations are uncovered long after conviction, including:
- Reviewing original trial files for the first time
- Finding suppressed documents in prosecutor or police archives
- Witnesses coming forward
- New forensic evidence
- Newly revealed agreements with witnesses
The law recognizes that prosecution suppression may not be discovered immediately.
Is it Brady if the defense “could have found it” themselves?
No.
The government has an affirmative duty to disclose.
They cannot hide favorable information and argue, “Well, the defense could have found it eventually.”
Can suppression be intentional or accidental?
Both can qualify. Trials are overturned for Brady even when:
- Prosecutors did not realize the evidence was withheld
- Police had the evidence and prosecutors never looked at it
Brady is about fairness, not prosecutorial intent.
Can a Brady violation be shown if the defense lawyer didn’t ask for the evidence?
Yes.
The prosecution must disclose whether or not the defense asks.
How do your attorneys attack Brady violations?
Our post-conviction team investigates whether:
- Key documents never reached the defense
- Prosecution files contain favorable evidence unknown to trial counsel
- Witnesses received undisclosed deals
- Law enforcement withheld reports
- False testimony was allowed to stand uncorrected
We build a detailed, fact-based claim supported by:
- Affidavits
- Case law
- Forensic experts
- Documentary proof
- Discovery of evidence hidden at trial
How do you prove Brady in Texas 11.07 writs?
We structure Brady writs around:
- A history of what the State possessed
- Proof the defense lacked knowledge of it
- Demonstration of how it impacts guilt or punishment
We present:
- Supporting affidavits
- Witness statements
- File records
- Open-records responses
- Police/prosecutor documentation
- Forensic reports
These materials are submitted to the Texas Court of Criminal Appeals for review.
How do you prove Brady in Federal Habeas (2254 or 2255)?
In federal court, Brady claims are built on:
- Demonstrating the constitutional violation
- Showing prejudice
- Providing clear factual support
Federal courts take Brady extremely seriously.
If my trial lawyer never knew about the evidence, can I still raise Brady?
Yes.
That is exactly when Brady applies - when the defense never had it but should have.
Why does Brady matter?
Because the truth matters.
Every defendant has the right to:
- A fair trial
- Honest disclosure
- Evidence necessary for a defense
When the prosecution withholds evidence, the system fails.
What should I do if I suspect a Brady violation in my case?
Contact our post-conviction attorneys for a confidential review.
We examine your trial, sentencing, and appellate record to determine whether a Brady claim may be available and how it should be presented in a writ application.
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