Specific Requests and the Prosecutorial Duty to Disclose

Brady v. Maryland I established that, as a matter of due process, a criminal defendant has an access right upon request to evidence within the prosecutor's possession that is both favorable and material to the defense.2 The extent of this constitutional right, however, depends on the definition of materiality. In United States v. Agurs, 3 the Supreme Court created a two-tiered framework for determining materiality. With respect to evidence that the defense specifically requested, the test was whether the evidence "might have affected the outcome of the trial."' 4 With respect to generally requested evidence or evidence not requested at all, the standard was higher and less inclusive: evidence was material if it "create[d] a reasonable doubt which did not otherwise exist." In Agurs the Court imposed a lesser burden on the defendant in the specific request context because a specific request facilitates prosecutorial compliance by providing notice of evidence that the defense lacks and perceives as important.6 Implicit in the Court's reasoning was the notion that suppression of evidence specifically requested by the defendant is fundamentally unfair and amounts to prosecutorial misdealing. 7 In United States v. Bagley, 8 however, a divided Supreme Court replaced the Brady-A gurs materiality framework with a single materiality standard.9 Under Bagley, evidence is material if there is a "reasonable probability" that it "would" alter the trial result.10 The Court characterized this standard as "sufficiently flexible" to cover both the specific request and general/no request contexts."I Although it theoretically preserves a favored position for a defendant making a specific request,