TO: FBI Beth

FROM: Special Agent James Kidd

DATE: February 5, 2016
SUBJECT: Brady Violation Remedy

Complying with Brady requirements continues to be a challenge that faces all law

enforcement. As FBI agents we set the example and carry the expectation as being the purveyors

of justice. The FBI must implement certain guidelines in our investigative policies and

procedures. These guidelines should include case file organizational procedures and establishing

criteria to the disclosure of material evidence on potential witnesses. These guidelines will

reduce the possibility of Brady errors during the release of material and exculpatory evidence.

There are several reasons as to why agents do not disclose Brady material to the

prosecutors. There may be agents that have the ends justify the means mentality doing

whatever is necessary to get a conviction. Other reasons for not disclosing material include

substandard investigations and the lack of training. It is imperative that agents receive training

that defines and promotes the concept and understanding of Brady.

The basic principles in understanding Brady v. Maryland is that due process is violated

when the prosecutor fails to disclose evidence, which is favorable to the accused, and is material.

The word favorable carries the meaning that if disclosed and used effectively, may make the

difference between conviction and acquittal, including exculpatory and impeachment evidence.

Guidelines in case organizational procedures will assist agents in the proper documentation and

organization of the case file. Successfully organizing the case file will prevent material evidence

from being unintentionally lost or misplaced. In my position, I have addressed numerous agents

on the failure to place all investigative notes into the case file. There has also been issues
pertaining to what is considered internal documents. The agencys entire case file, including

electronic communications, inserts, and emails should be reviewed for discovery information. If

the agency determines the email to be an internal document then it may not be necessary to

release, but it will be advisable to produce the discoverable information contained in the email.

Material evidence also includes evidence that relates to witness credibility. The failure to

disclose Brady information about all witnesses in a criminal case, including our agents, can be

used as a basis to overturn a conviction, or other sanctions. The FBI must establish clear

guidelines to our agents, in regards to potential witnesses, that the following should be disclosed:

the investigators notes about the witness, the witnesss statements, and prior statements and

omissions that are inconsistent. This material evidence could possibly impeach the witness. For

example last month the states prosecutors disclosed evidence that could impeach a key witness

as they knew she had outstanding warrants where the defense did not have that evidence.

Ultimately the best defense against civil litigation filed as a result of Brady v Maryland is

to ensure that investigative policy and procedures are in place. These policies must include case

file organizational procedures and establishing criteria as to the disclosure of material on the

impeachment of potential witnesses.