John L. BRADY, Petitioner, v. STATE OF MARYLAND.
373 U.S. 83 (83 S.Ct. 1194, 10 L.Ed.2d 215)
John L. BRADY, Petitioner, v. STATE OF MARYLAND.
Argued: March 18 and 19, 1963.
Decided: May 13, 1963.
E. Clinton Bamberger, Jr., Baltimore, Md., for petitioner.
Thomas W. Jamison, III, Baltimore, Md., for respondent.
Opinion of the Court by Mr. Justice DOUGLAS, announced by Mr. Justice BRENNAN.
Petitioner and a companion, Boblit, were found guilty of murder in the
first degree and were sentenced to death, their convictions being affirmed
by the Court of Appeals of Maryland. 220 Md. 454, 154 A.2d 434. Their
trials were separate, petitioner being tried first. At his trial Brady
took the stand and admitted his participation in the crime, but he claimed
that Boblit did the actual killing. And, in his summation to the jury,
Brady's counsel conceded that Brady was guilty of murder in the first
degree, asking only that the jury return that verdict 'without capital
punishment.' Prior to the trial petitioner's counsel had requested
the prosecution to allow him to examine Boblit's extrajudicial statements.
Several of those statements were shown to him; but one dated July 9, 1958,
in which Boblit admitted the actual homicide, was withheld by the prosecution
and did not come to petitioner's notice until after he had been tried,
convicted, and sentenced, and after his conviction had been affirmed.
Petitioner moved the trial court for a new trial based on the newly discovered
evidence that had been suppressed by the prosecution. Petitioner's
appeal from a denial of that motion was dismissed by the Court of Appeals
without prejudice to relief under the Maryland Post Conviction Procedure
Act. 222 Md. 442, 160 A.2d 912. The petition for post-conviction relief
was dismissed by the trial court; and on appeal the Court of Appeals held
that suppression of the evidence by the prosecution denied petitioner
due process of law and remanded the case for a retrial of the question
of punishment, not the question of guilt. 226 Md. 422, 174 A.2d 167. The
case is here on certiorari,
371 U.S. 812, 83 S.Ct. 56, 9 L.Ed.2d 54.
The crime in question was murder committed in the perpetration of a robbery.
Punishment for that crime in Maryland is life imprisonment or death, the
jury being empowered to restrict the punishment to life by addition of
the words 'without capital punishment.' 3 Md.Ann.Code, 1957, Art.
27, § 413. In Maryland, by reason of the state constitution, the
jury in a criminal case are 'the Judges of Law, as well as of fact.'
Art. XV, § 5. The question presented is whether petitioner was denied
a federal right when the Court of Appeals restricted the new trial to
the question of punishment.
We agree with the Court of Appeals that suppression of this confession
was a violation of the Due Process Clause of the Fourteenth Amendment.
The Court of Appeals relied in the main on two decisions from the Third
Circuit Court of Appeals—United States ex rel. Almeida v. Baldi,
195 F.2d 815, 33 A.L.R.2d 1407, and United States ex rel. Thompson v.
Dye, 221 F.2d 763—which, we agree, state the correct constitutional rule.
This ruling is an extension of Mooney v. Holohan,
294 U.S. 103, 112, 55 S.Ct. 340, 342, 79 L.Ed. 791, where the Court ruled on what nondisclosure by a prosecutor violates
'It is a requirement that cannot be deemed to be satisfied by mere
notice and hearing if a state has contrived a conviction through the pretense
of a trial which in truth is but used as a means of depriving a defendant
of liberty through a deliberate deception of court and jury by the presentation
of testimony known to be perjured. Such a contrivance by a state to procure
the conviction and imprisonment of a defendant is as inconsistent with
the rudimentary demands of justice as is the obtaining of a like result
In Pyle v. Kansas,
317 U.S. 213, 215—216, 63 S.Ct. 177, 178, 87 L.Ed. 214, we phrased the rule in
'Petitioner's papers are inexpertly drawn, but they do set forth
allegations that his imprisonment resulted from perjured testimony, knowingly
used by the State authorities to obtain his conviction, and from the deliberate
suppression by those same authorities of evidence favorable to him. These
allegations sufficiently charge a deprivation of rights guaranteed by
the Federal Constitution, and, if proven, would entitle petitioner to
release from his present custody. Mooney v. Holohan,
294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791.' The Third Circuit in the Baldi case construed that statement in
Pyle v. Kansas to mean that the 'suppression of evidence favorable'
to the accused was itself sufficient to amount to a denial of due process.
195 F.2d, at 820. In Napue v. Illinois,
360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217, we extended the test formulated in Mooney v. Holohan when we said: 'The
same result obtains when the State, although not soliciting false evidence,
allows it to go uncorrected when it appears.' And see Alcorta v. Texas,
355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9; Wilde v. Wyoming,
362 U.S. 607, 80 S.Ct. 900, 4 L.Ed.2d 985. Cf. Durley v. Mayo,
351 U.S. 277, 285, 76 S.Ct. 806, 811, 100 L.Ed. 1178 (dissenting opinion).
We now hold 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 to punishment, irrespective of the good faith
or bad faith of the prosecution.
The principle of Mooney v. Holohan is not punishment of society for misdeeds
of a prosecutor but avoidance of an unfair trial to the accused. Society
wins not only when the guilty are convicted but when criminal trials are
fair; our system of the administration of justice suffers when any accused
is treated unfairly. An inscription on the walls of the Department of
Justice states the proposition candidly for the federal domain: 'The
United States wins its point whenever justice is done its citizens in
the courts.'A prosecution that withholds evidence on demand of an
accused which, if made available, would tend to exculpate him or reduce
the penalty helps shape a trial that bears heavily on the defendant. That
casts the prosecutor in the role of an architect of a proceeding that
does not comport with standards of justice, even though, as in the present
case, his action is not 'the result of guile,' to use the words
of the Court of Appeals. 226 Md., at 427, 174 A.2d, at 169.
The question remains whether petitioner was denied a constitutional right
when the Court of Appeals restricted his new trial to the question of
punishment. In justification of that ruling the Court of Appeals stated:
'There is considerable doubt as to how much good Boblit's undisclosed
confession would have done Brady if it had been before the jury. It clearly
implicated Brady as being the one who wanted to strangle the victim, Brooks.
Boblit, according to this statement, also favored killing him, but he
wanted to do it by shooting. We cannot put ourselves in the place of the
jury and assume what their views would have been as to whether it did
or did not matter whether it was Brady's hands or Boblit's hands
that twisted the shirt about the victim's neck. * * * (I)t would be
'too dogmatic' for us to say that the jury would not have attached
any significance to this evidence in considering the punishment of the
'Not without some doubt, we conclude that the withholding of this particular
confession of Boblit's was prejudicial to the defendant Brady. * * *
'The appellant's sole claim of prejudice goes to the punishment
imposed. If Boblit's withheld confession had been before the jury,
nothing in it could have reduced the appellant Brady's offense below
murder in the first degree. We, therefore, see no occasion to retry that
issue.' 226 Md., at 429—430, 174 A.2d, at 171. (Italics added.)
If this were a jurisdiction where the jury was not the judge of the law,
a different question would be presented. But since it is, how can the
Maryland Court of Appeals state that nothing in the suppressed confession
could have reduced petitioner's offense 'below murder in the first
degree'? If, as a matter of Maryland law, juries in criminal cases
could determine the admissibility of such evidence on the issue of innocence
or guilt, the question would seem to be foreclosed.
But Maryland's constitutional provision making the jury in criminal
cases 'the Judges of Law' does not mean precisely what it seems to say.3 The present status of that provision was reviewed recently in Giles v.
State, 229 Md. 370, 183 A.2d 359, appeal dismissed,
372 U.S. 767, 83 S.Ct. 1102, where the several exceptions, added by statute or carved out by judicial
construction, are reviewed. One of those exceptions, material here, is
that 'Trial courts have always passed and still pass upon the admissibility
of evidence the jury may consider on the issue of the innocence or guilt
of the accused.' 229 Md., at 383, 183 A.2d, at p. 365. The cases cited
make up a long line going back nearly a century. Wheeler v. State, 42
Md. 563, 570, stated that instructions to the jury were advisory only,
'except in regard to questions as to what shall be considered as evidence.'
And the court 'having such right, it follows of course, that it also
has the right to prevent counsel from arguing against such an instruction.'
Bell v. State, 57 Md. 108, 120. And see Beard v. State, 71 Md. 275, 280,
17 A. 1044, 1045, 4 L.R.A. 675; Dick v. State, 107 Md. 11, 21, 68 A. 286,
290. Cf. Vogel v. State, 163 Md. 267, 162 A. 705.
We usually walk on treacherous ground when we explore state law for state
courts, state agencies, and state legislatures are its final expositors
under our federal regime. But, as we read the Maryland decisions, it is
the court, not the jury, that passes on the 'admissibility of evidence'
pertinent to 'the issue of the innocence or guilt of the accused.'
Giles v. State, supra. In the present case a unanimous Court of Appeals
has said that nothing in the suppressed confession 'could have reduced
the appellant Brady's offense below murder in the first degree.'
We read that statement as a ruling on the admissibility of the confession
on the issue of innocence or guilt. A sporting theory of justice might
assume that if the suppressed confession had been used at the first trial,
the judge's ruling that it was not admissible on the issue of innocence
or guilt might have been flouted by the jury just as might have been done
if the court had first admitted a confession and then stricken it from
the record.But we cannot raise that trial strategy to the dignity of a
constitutional right and say that the deprival of this defendant of that
sporting chance through the use of a bifurcated trial (cf. Williams v.
337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337) denies him due process or violates the Equal Protection Clause of the
Separate opinion of Mr. Justice WHITE.
1. The Maryland Court of Appeals declared, 'The suppression or withholding
by the State of material evidence exculpatory to an accused is a violation
of due process' without citing the United States Constitution or the
Maryland Constitution which also has a due process clause.We therefore
cannot be sure which Constitution was invoked by the court below and thus
whether the State, the only party aggrieved by this portion of the judgment,
could even bring the issue here if it desired to do so. See New York City
v. Central Savings Bank,
306 U.S. 661, 59 S.Ct. 790, 83 L.Ed. 1058; Minnesota v. National Tea Co.,
309 U.S. 551, 60 S.Ct. 676, 84 L.Ed. 920. But in any event, there is no cross-petiton by the State, nor has it
challenged the correctness of the ruling below that a new trial on punishment
was called for by the requirements of due process. In my view, therefore,
the Court should not reach the due process question which it decides.
It certainly is not the case, as it may be suggested, that without it
we would have only a state law question, for assuming the court below
was correct in finding a violation of petitioner's rights in the suppression
of evidence, the federal question he wants decided here still remains,
namely, whether denying him a new trial on guilt as well as punishment
deprives him of equal protection. There is thus a federal question to
deal with in this Court, cf. Bell v. Hood,
327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939, wholly aside from the due process question involving the suppression
of evidence. The majority opinion makes this unmistakably clear. Before
dealing with the due process issue it says, 'The question presented
is whether petitioner was denied a federal right when the Court of Appeals
restricted the new trial to the question of punishment.' After discussing
at some length and disposing of the suppression matter in federal constitutional
terms it says the question still to be decided is the same as it was before:
'The question remains whether petitioner was denied a constitutional
right when the Court of Appeals restricted his new trial to the question
The result, of course, is that the due process discussion by the Court
is wholly advisory.
2. In any event the Court's due process advice goes substantially beyond
the holding below. I would employ more confining language and would not
cast in constitutional form a broad rule of criminal discovery. Instead,
I would leave this task, at least for new, to the rule-making or legislative
process after full consideration by legislators, bench, and bar.
3. I concur in the Court's disposition of petitioner's equal protection argument.
Mr. Justice HARLAN, whom Mr. Justice BLACK joins, dissenting.
I think this case presents only a single federal question: did the order
of the Maryland Court of Appeals granting a new trial, limited to the
issue of punishment, violate petitioner's Fourteenth Amendment right
to equal protection? In my opinion an affirmative answer would be required
if the Boblit statement would have been admissible on the issue of guilt
at petitioner's original trial. This indeed seems to be the clear
implication of this Court's opinion.
The Court, however, holds that the Fourteenth Amendment was not infringed
because it considers the Court of Appeals' opinion, and the other
Maryland cases dealing with Maryland's constitutional provision making
juries in criminal cases 'the Judges of Law, as well as of fact,'
as establishing that the Boblit statement would not have been admissible
at the original trial on the issue of petitioner's guilt.
But I cannot read the Court of Appeals' opinion with any such assurance.
That opinion can as easily, and perhaps more easily, be read as indicating
that the new trial limitation followed from the Court of Appeals'
concept of its power, under § 645G of the Maryland Post Conviction
Procedure Act, Md.Code, Art. 27 (1960 Cum.Supp.) and Rule 870 of the Maryland
Rules of Procedure, to fashion appropriate relief meeting the peculiar
circumstances of this case, rather than from the view that the Boblit
statement would have been relevant at the original trial only on the issue
of punishment. 226 Md., at 430, 174 A.2d, at 171. This interpretation
is indeed fortified by the Court of Appeals' earlier general discussion
as to the admissibility of third-party confessions, which falls short
of saying anything that is dispositive of the crucial issue here. 226
Md., at 427—429, 174 A.2d, at 170.
Nor do I find anything in any of the other Maryland cases cited by the
Court (ante, p. 89) which bears on the admissibility vel non of the Boblit
statement on the issue of guilt. None of these cases suggests anything
more relevant here than that a jury may not 'overrule' the trial
court on questions relating to the admissibility of evidence. Indeed they
are by no means clear as to what happens if the jury in fact undertakes
to do so. In this very case, for example, the trial court charged that
'in the final analysis the jury are the judges of both the law and
the facts, and the verdict in this case is entirely the jury's responsibility.'
Moreover, uncertainty on this score is compounded by the State's acknowledgment
at the oral argument here that the withheld Boblit statement would have
been admissible at the trial on the issue of guilt.
In this state of uncertainty as to the proper answer to the critical underlying
issue of state law, and in view of the fact that the Court of Appeals
did not in terms address itself to the equal protection question, I do
not see how we can properly resolve this case at this juncture. I think
the appropriate course is to vacate the judgment of the State Court of
Appeals and remand the case to that court for further consideration in
light of the governing constitutional principle stated at the outset of
this opinion. Cf. Minnesota v. National Tea Co.,
309 U.S. 551, 60 S.Ct. 676, 84 L.Ed. 920.
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Neither party suggests that the decision below is not a 'final judgment'
within the meaning of
28 U.S.C. 1257(3), and no attack on the reviewability of the lower court's judgment
could be successfully maintained. For the general rule that 'Final
judgment in a criminal case means sentence. The sentence is the judgment'
(Berman v. United States,
302 U.S. 211, 212, 58 S.Ct. 164, 166, 82 L.Ed. 204) cannot be applied here. If in fact the Fourteenth Amendment entitles
petitioner to a new trial on the issue of guilt as well as punishment
the ruling below has seriously prejudiced him. It is the right to a trial
on the issue of guilt 'that presents a serious and unsettled question'
(Cohen v. Beneficial Industrial Loan Corp.,
337 U.S. 541, 547, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528) that 'is fundamental to the further conduct of the case' (United
States v. General Motors Corp.,
323 U.S. 373, 377, 65 S.Ct. 357, 359, 89 L.Ed. 311). This question is 'independent of, and unaffected by' (Radio
Station WOW v. Johnson,
326 U.S. 120, 126, 65 S.Ct. 1475, 1479, 89 L.Ed. 2092) what may transpire in a trial at which petitioner can receive only a
life imprisonment or death sentence. It cannot be mooted by such a proceeding.
See Largent v. Texas,
318 U.S. 418, 421—422, 63 S.Ct. 667, 668—669, 87 L.Ed. 873. Cf. Local No.
438 Const. and General Laborers' Union v. Curry,
371 U.S. 542, 549, 83 S.Ct. 531, 536, 9 L.Ed.2d 514
Judge Simon E. Sobeloff when Solicitor General put the idea as follows
in an address before the Judicial Conference of the Fourth Circuit on
June 29, 1954:
'The Solicitor General is not a neutral, he is an advocate; but an
advocate for a client whose business is not merely to prevail in the instant
case. My client's chief business is not to achieve victory but to
establish justice. We are constantly reminded of the now classic words
penned by one of my illustrious predecessors, Frederick William Lehmann,
that the Government wins its point when justice is done in its courts.'
See Dennis, Maryland's Antique Constitutional Thorn, 92 U. of Pa.L.Rev.
34, 39, 43; Prescott, Juries as Judges of the Law: Should the Practice
be Continued, 60 Md.St.Bar Assn.Rept. 246, 253 254.
For one unhappy incident of recent vintage see Oklahoma Packing Co. v.
Oklahoma Gas & Electric Co.,
309 U.S. 4, 60 S.Ct. 215, 84 L.Ed. 447, 537, that replaced an earlier opinion in the same case, 309 U.S. 703.
'In the matter of confessions a hybrid situation exists. It is the
duty of the Court to determine from the proof, usually taken out of the
presence of the jury, if they were freely and voluntarily made, etc.,
and admissible. If admitted, the jury is entitled to hear and consider
proof of the circumstances surrounding their obtention, the better to
determine their weight and sufficiency. The fact that the Court admits
them clothes them with no presumption for the jury's purposes that
they are either true or were freely and voluntarily made. However, after
a confession has been admitted and read to the jury the judge may change
his mind and strike it out of the record. Does he strike it out of the
jury's mind?' Dennis, Maryland's Antique Constitutional Thorn,
92 U. of Pa.L.Rev. 34, 39. See also Bell v. State, supra, 57 Md. at 120;
Vogel v. State, 163 Md., at 272, 162 A., at 706 707.
Md.Const., Art. 23; Home Utilities Co., Inc., v. Revere Copper & Brass,
Inc., 209 Md. 610, 122 A.2d 109; Raymond v. State ex rel. Szydlouski,
192 Md. 602, 65 A.2d 285; County Com'rs of Anne Arundel County v.
English, 182 Md. 514, 35 A.2d 135, 150 A.L.R. 842; Oursler v. Tawes, 178
Md. 471, 13 A.2d 763.
I agree with my Brother WHITE that there is no necessity for deciding in
this case the broad due process questions with which the Court deals at
pp. 86—88 of its opinion.
Section 645G provides in part: 'If the court finds in favor of the
petitioner, it shall enter an appropriate order with respect to the judgment
or sentence in the former proceedings, and any supplementary orders as
to rearraignment, retrial, custody, bail, discharge, correction of sentence,
or other matters that may be necessary and proper.' Rule 870 provides
that the Court of Appeals 'will either affirm or reverse the judgment
from which the appeal was taken, or direct the manner in which it shall
be modified, changed or amended.'
It is noteworthy that the Court of Appeals did not indicate that it was
limiting in any way the authority of Day v. State, 196 Md. 384, 76 A.2d
729. In that case two defendants were jointly tried and convicted of felony
murder. Each admitted participating in the felony but accused the other
of the homicide. On appeal the defendants attacked the trial court's
denial of a severance, and the State argued that neither defendant was
harmed by the statements put in evidence at the joint trial because admission
of the felony amounted to admission of guilt of felony murder. Nevertheless
the Court of Appeals found an abuse of discretion and ordered separate
new trials on all issues.
In response to a question from the Bench as to whether Boblit's statement,
had it been offered at petitioner's original trial, would have been
admissible for all purposes, counsel for the State, after some colloquy,
stated: 'It would have been, yes.'