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Epidemic of Brady Violations: Why Wasn’t This Defendant’s Conviction Overturned?

Brady v. Maryland 373 U.S. 83 (1963) was a landmark United States Supreme Court case in which the prosecution had withheld certain evidence from the defendant. The defendant challenged his conviction, arguing it had been contrary to the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

The Supreme Court held that withholding exculpatory evidence (evidence that tends to exonerate you) violates due process “where the evidence is material either to guilt or to punishment.”

What is Brady Evidence?

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Exculpatory evidence is “material” if “there is a reasonable probability that [your] conviction or sentence would have been different had these materials been disclosed.” Brady evidence includes statements of witnesses or physical evidence that conflicts with the prosecution’s witnesses, and evidence that could allow the defense to discredit (or “impeach”) a witness for the prosecution.

In other words, the prosecution is duty bound to disclose evidence that could lead to your being found not guilty of the charges against you. Unfortunately, that doesn’t always happen.

In the following case, the U.S. Court of Appeals for the Ninth Circuit (one step below the U.S. Supreme Court) decided that although some of the undisclosed evidence against the defendant was favorable to him, it wasn’t “material” evidence and therefore did not invoke what is often referred to as a “Brady violation.”

United States v. Olsen (Case No. 10-36063, 9th Cir., December 10, 2013)

Kenneth Olsen was convicted by a federal jury of knowingly developing a biological weapon in violation of 18 U.S.C. § 175. He admitted to producing “ricin,” a highly toxic poison, but claimed it was not for use as a weapon.

On appeal, Olsen challenged several aspects of his conviction, including that a Brady violation had occurred. The U.S. prosecutor assigned to his case failed to disclose an investigative report to the defense counsel and the trial court which determined that a government analyst who had been called upon had potentially contaminated the evidence and that he was “incompetent” and had committed “gross misconduct.”

Ultimately, the government was allowed to introduce evidence of “spiked” allergy pills and the jury heard testimony from the analyst, all without being informed of the serious doubts to their reliability.

How Did the Court Rule?

The Ninth Circuit denied Olsen’s appeal, holding that although the report was favorable to the defendant, it wasn’t “material” in that it would not have affected the outcome of the case.

The Panel stated: “Even if [the analyst’s] credibility as a witness had been totally destroyed, we are confident beyond a reasonable doubt that the jury would have found Olsen guilty, based on the overwhelming evidence presented by the government that he intended to use the ricin he possessed as a weapon.”

Epidemic of Brady Violations

The Chief Judge, joined by several other judges in the case, lambasted the majority for permitting “an epidemic of Brady violations,” and disagreed with the court’s opinion in a forceful dissent:

“The panel’s ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it’s possible the defendant would’ve been convicted anyway.”

What Does the Olsen Decision Mean?

The decision in the Olsen case is disturbing. A defendant on trial for his or her life is entitled to and should be able to expect that his or her constitutional rights to a fair and impartial proceeding are protected.

Furthermore, a jury must be permitted to weigh any permissible evidence that tends to exonerate you regardless of the court’s opinion of the evidence.

This case serves to demonstrate the frightening truth that prosecutors have reasons to withhold evidence that they know might be exculpatory because they’re rarely caught and, even when they are, they are often do not face any consequences for their actions.1

Your chances for a favorable outcome in a criminal case brought against you improve considerably when you have an experienced criminal defense attorney by your side committed to protecting your rights.

Trust Wallin & Klarich to Protect Your Legal Rights

If you or someone you love has been accused of a crime, you need to contact an experienced criminal defense attorney at Wallin & Klarich today. At Wallin & Klarich, our attorneys have over 30 years of experience successfully defending our clients in state and federal courts. Protecting your constitutional rights is our first priority.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, trust the knowledgeable criminal defense attorneys at Wallin & Klarich to examine all of the evidence against you to determine if there are any weaknesses in the prosecution’s case. We will argue aggressively that the charges against you should be reduced or dismissed altogether. We will employ every available strategy to help you win your case.

Call us today at (888) 280-6839 for a free telephone consultation. We will get through this together.


1. [California Appellate Report: Opinion by Professor Shaun Martin, University of San Diego School of Law, December 10, 2013; http://calapp.blogspot.com/2013/12/us-v-olsen-part-two-9th-cir-dec-10-2013.html]

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