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Banks v. Dretke


Before the defendant’s murder trial, the government provided the defendant with the following statement “[W]e will, without the necessity of motions[,] provide you with all discovery to which you are entitled.” Thereafter, the government presented two witnesses to the jury and failed to draw attention to their false testimony. One witness falsely stated he was not a paid informant and another witness perjured himself about his pretrial preparation. The witness testified on three occasions that “he had not talked to anyone about his testimony.” However, the witness actually engaged in at least one “pretrial practice sessio[n]” in which prosecutors and a police officer coached him.


Whether the government’s concealment of offering a witness that was a paid informant and its involvement in coaching a witness is exculpatory evidence subject to Brady v. Maryland?


Yes. The government violates the principles of due process by allowing perjured testimony to be presented without challenge.


In Brady v. Maryland, the Court held 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.” In Strickler v. Greene, 527 U.S. 263 (1999), the Court further clarified that to establish an effective Brady claim, (1) the evidence must be favorable to the accused (2) the evidence must have been suppressed by the government (intentionally or unintentionally) and (3) the accused must have been harmed as a result.

In this case, the Court found that the defendant demonstrated the standards for a Brady claim. A government witness that is a paid informant qualifies as evidence advantageous to the defendant. The prosecution repeatedly allowed false testimony to stand uncorrected. The government represented that it held nothing back yet was silent when its witnesses perjured themselves. The Court concluded that the defendant was harmed by these suppressions as he could not properly impeach key witnesses for the government.


540 U.S. 668, 124 S. Ct. 1256 (2004)

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