Contact Us
    Contact Us

    Please use the contact form to send us an email - and receive a response within 12 hours.

    Emergency? Call 720-220-2277 (24/7)

    Map To Our Office
    Read Out Blog
    Case Evaluation
    Charged With A Crime?

    Does The Colorado District Attorney Have To Turn Over ALL Of Their Evidence?

    By H. Michael Steinberg Colorado Criminal Defense Lawyer – Attorney – Email The Authror

    Does The Colorado District Attorney Have To Turn Over ALL Of Their Evidence?

    Does The Colorado District Attorney Have To Turn Over ALL Of Their Evidence?

    Does The Colorado District Attorney Have To Turn Over ALL Of Their Evidence? – Understanding the obligations of the District Attorney to reveal every aspect of the evidence against a suspect in a Colorado criminal case means a thorough understanding of the requirement of the DA to turn over ALL of the evidence – the evidence that helps to try to convict you and the evidence that may acquit you – also known as “exculpatory evidence!”

    The DA’s obligation to disclose exculpatory evidence in criminal cases is called the Brady rule. It arises out of a case called Brady vs Maryland. In that case the United States Supreme Court held that the due process clause of the United States Constitution mandates the prosecution to disclose to the defense any material evidence favorable on the issues of guilt or punishment.

    A prosecutor’s obligation to produce favorable evidence to the defense arises principally from the Fifth Amendment’s Due Process Clause but it also derives from the Sixth Amendment’s right to a fair trial. Brady requires the government to produce evidence in its possession that is favorable to the accused, either with respect to guilt or to punishment.

    Does The Colorado District Attorney Have To Turn Over ALL Of Their Evidence?

    A Simple Summary Of The Brady Rule

    Under the so called “Brady Rule,” the government violates a defendant’s right to due process if the state withholds evidence that is favorable to the defense and material to the defendant’s guilt or punishment

    Evidence is ‘material’ within the meaning of Brady Case if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.

    A reasonable probability does not mean that the defendant “would more likely than not have received a different verdict with the evidence,” only that the likelihood of a different result is great enough to “undermine confidence in the outcome of the trial.”

    What Is Exculpatory Evidence?

    Evidence is considered exculpatory if it tends to disprove your guilt. This critical evidence can do this by:

    • Showing your innocence.

    • Undermining the credibility of government witnesses.

    • Tending to mitigate the punishment.

    What Does Making “Standard Discovery?” Mean?

    A prosecutor in the state of Colorado or the Federal government has the routine duty to provide a copy of the entire file. The “Brady” obligation goes well beyond providing a copy of the prosecutor’s file to requiring the DA to produce information that might lead to exculpatory evidence that is “favorable to the accused.”

    Evidence can be “favorable to the accused” in a number of ways.

    Examples of this kind of evidence:

    • Evidence may be exculpatory if it tends to show directly that the defendant did not commit the charged criminal acts, such as when someone else has admitted committing the crime, or because it may assist the defendant in establishing an affirmative defense.

    • Evidence may be exculpatory if it may be used to impeach a government witness. Almost any prior statement by a witness may fall within this category if it differs slightly from the witness’s existing testimony… this obviously goes to the witness’s credibility at trial.

    • Evidence may be exculpatory by actually establishing a significant absence of evidence.  The best example of this is would be forensic tests withheld from the defense that point directly or indirectly to another person who could have committed the crime.

    Brady Evidence Turns On The Facts Of Each Case

    Whether evidence is favorable to the accused depends on the facts of the case at hand.  If the evidence or information in question relates to a potential defense, the experienced criminal defense lawyer MUST articulate how the information may possibly impact the defense strategy AND how it could be favorable in light of various potential defenses.

    However, “Brady” is not a tool for general discovery. If it is attempted to be used as a device for that purpose the attempt is regularly rejected

    A Closer Look At The Facts Of The Brady Case

    The Brady case itself was an example of a classic case of critical exculpatory information withheld from the defendant. In that case another man admitted to the killing for which Brady was convicted. Brady was charged with a murder committed during the course of a robbery. His lawyer asked the prosecutor to allow him to review the statements made by the another man who was involved and while the prosecution provided  some statements, they withheld the one statement in which a confederate in the commission of the killing admitted that he was the one who actually committed the homicide.

    Brady was convicted and sentenced to death and it was established after the trial that the other man’s statement that he had actually done the killing would – while not establishing that Brady’s conviction for first degree murder was unjust – WOULD have been very relevant to Brady’s sentence.

    To Be Brady Evidence, It Must Be Material

    The most difficult obstacle to establishing a Brady violation is the requirement of materiality.  Evidence “is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome would have been different.”

    The best approach to persuading the prosecution to turn over evidence is to:

    1. Persuade the prosecutor that the disclosure of Brady evidence should occur in the pre-trial context as there is no way to know what evidence is material until it is ALL disclosed.

    2. Educate the prosecutor about the defense, making certain that the prosecutor understands how a piece of evidence fits into the defense to be asserted at trial. While the defense may lose the element of surprise, such as it is, (the prosecutor almost always knows the defense anyway) disclosing the defense forces the prosecutor to review the prosecutor’s own evidence and witnesses, such as cooperating witnesses’ uncharged misconduct, their initial exculpation evidence of the defendant, or their lies to the prosecutor about their own culpability… all are critical information to the defense.

    When Are Brady Disclosures To Be Made? – The Timing Of Brady Information And Evidence

    If the material is exculpatory, it must be disclosed sufficiently in advance of trial to be useful to the defense. and the trial court may order prompt pre-trial disclosure.

    Conclusion And Summary of A Brady Violation – The Core Requirements

    The Evidence Must Be Favorable to the Accused and Material To The Defense

    The three elements of a Brady violation:

    1) A Brady violation occurs when the government fails to disclose materially favorable evidence irrespective of good faith or bad faith on the part of the government;

    2) Brady evidence includes both impeachment and exculpatory information;

    3) The prosecution’s disclosure duties extend to evidence that is known only to other government agents involved in the investigations;

    4) Evidence is only material if there is a reasonable probability that the outcome of the proceeding would have been different if the evidence had been disclosed; and

    5) Reversal of a conviction requires a showing that the materially favorable evidence evaluated in light of the totality of evidence is of such a nature as to undermine confidence in the verdict

    Examples Of Possible Brady evidence would be:

    Exculpatory Evidence

    Impeachment Evidence

    Benefits Provided to a Government Witnesses

    Prior Statements and Interviews

    Information Related to the Defense Theory of the Case

    Evidence the Prosecution Does Not Intend to Use at Trial

    Inadmissible Evidence

    The most difficult element to prove is materiality – material evidence does not have to be so strong that one considering it would likely vote for the defendant’s acquittal; materiality requires only a “‘reasonable probability’ of a different result.

    Does The Colorado District Attorney Have To Turn Over ALL Of Their Evidence?

    ABOUT THE AUTHOR: H. Michael Steinberg Email The Author  A Denver Colorado Criminal Defense Lawyer  – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277.

    Over 40 Years Specializing in Colorado Criminal LawH. Michael Steinberg is an aggressive Colorado criminal defense lawyer with over 40 years of Colorado Criminal Law experience. He is not looking to negotiate a plea in every case. He is looking for the best possible outcome, based on all the facts and evidence, so that you can get on with your life.

    “I believe that I can help people who are in need and deliver the kind of quality legal service to clients they expect.” – H. Michael Steinberg

    Please call H. Michael if you have any questions about the topic in this case – Does The Colorado District Attorney Have To Turn Over ALL Of Their Evidence?

    Other Articles of Interest:

    If you found the information provided on this webpage to be helpful, please click my Plus+1 button so that others may also find it.

    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
    The Edward Building
    8400 East Prentice Ave, Penthouse 1500
    Greenwood Village, Colorado, 80111
    E-Mail:  [email protected]
    Primary Web Site:
    Colorado Criminal Law Blog:
    Main:  303.627.7777
    Cell:  720.220.2277
    24/7 Pager:  303.543.4433
    FAX (Toll Free):  1.877.533.6276
    Always investigate a lawyer's qualifications and experience before making a
    decision to retain that lawyer or, for that matter, any professional any field.