Vol. 24 No. 8- “Brady” Obligation Imposed On Law Enforcement

March 18, 2009

On December 8, 2008, the Ninth Circuit U.S. Court of Appeals, in the case of Tennison v. City and County of San Francisco, (2008) 548 F.3d 1293 held that “exculpatory evidence cannot be kept out of the hands of the defense just because the prosecutor does not have it, where an investigating agency does.  That would undermine Brady by allowing the investigating agency to prevent production by keeping a report out of the prosecutor’s hands until the agency decided the prosecutor ought to have it ….”


John Tennison and Antoine Goff served 13 years in state prison for a murder of which both were, ultimately, declared factually innocent.  After their release, they filed complaints under 42 U.S.C. sec. 1983 alleging, among other things, that two San Francisco P.D. homicide inspectors “withheld exculpatory evidence and manufactured and presented perjured testimony during the investigation and prosecution of Plaintiffs for the murder of Roderick Shannon.”
The Inspectors filed an appeal after their motion for summary judgment, on the basis of absolute and qualified immunity from civil liability, was denied.  The Ninth Circuit upheld the denial of their motion.

The primary factual issues in the case involved the failure of the Inspectors to provide the prosecutor with evidence which would have assisted the Plaintiffs in defending themselves in the criminal prosecution.  Among the items not turned over to the prosecutor was a taped interview with another person who confessed to committing the murder, as well as notes from interviews with individuals whose testimony would also have been beneficial to the Plaintiffs in their defense.

The Inspectors argued, among other things, that (1) they had no duty to disclose the “confession” because they did not find it to
be credible; (2) that they had placed the
confession in their file and the prosecutor has access to the file; and (3) the Plaintiffs had to prove the Inspectors acted in bad faith in order to establish section 1983 liability.

Duty of Police Officers Versus Prosecutors

The Investigators argued that law enforcement could withhold material without creating aBrady violation; they claimed that “Brady imposes a duty on prosecutors, but not on police officers, to disclose exculpatory evidence.”

It had been argued by the Inspectors that the duty was the prosecutors, under the case ofBrady v. State of Maryland, 373 U.S. 83 (1963), to seek out and find, among members of the “prosecution team,” any material which must be disclosed to the defense.  However, the Ninth Circuit stated that, “the Inspector’s position is untenable in light of the Supreme Court’s admonition that “Brady suppression occurs when the government fails to turn over evidence that is known only to police investigators and not to the prosecutor.”

The Court cited to several prior decisions, from the United States Supreme Court and from federal courts of appeal, to support its holding that this duty is imposed on law enforcement, as well.   For example, in the case of Newsome v. McCabe, 256 F.3d 747 (2001), the 7th Circuit U. S. Court of Appeals stated that “it was clearly established … that police could not withhold exculpatory information about fingerprints and the conduct of a lineup from prosecutors.”

The obligation, therefore, on law enforcement is to make the prosecutor, not the defendant, aware of potential Brady material, so the prosecutor can fulfill his or her constitutional obligation to disclose such material to the defense.  It is imperative to remember that failure to disclose such material will result in the reversal of a conviction, if one has been secured.

Bad Faith

The Inspectors also argued that in order to establish a 1983 violation, the Plaintiffs had to prove that they acted in bad faith.  However, the Court, again referring to prior decisions, rejected that argument.  Citing to Brady itself, the Tennison court stated that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.”  (Emphasis in original.)

It is also important to remember that, following the Brady decision, the U.S. Supreme Court ruled that the defense need not make a request for such material – the prosecutor has an affirmative obligation to disclose it, even if it is not requested.

The Court also noted that “Brady has no good faith or inadvertence defense.”  What that means, among other things, is that even if the prosecutor negligently fails to disclose exculpatory material to the defense, it is no excuse.  “Inadvertence” is not a defense to aBrady violation, any more than is the lack of knowledge by the prosecution due to the failure of law enforcement to notify the prosecutor of such material.


The Tennison decision is clear – the duty to disclose exculpatory, Brady, material falls on law enforcement, as well as on the prosecution.  It will not be an acceptable argument, against a motion to reverse a conviction, to claim that Brady material was not produced because law enforcement failed to notify the prosecution of its existence.

Merely placing such evidence in a file, but not bringing it to the attention of the prosecution, will not fulfill law enforcement’s obligation to disclose such evidence.  What constitutes exculpatory evidence, and what must be disclosed, is to be decided by the prosecution.  But, in order to do that, the prosecutor must be aware of its existence.

As with all legal matters, we urge that you confer with your agency’s legal counsel for advice and guidance.  As always, if you wish to discuss this case in greater detail, please don’t hesitate to contact me at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com.