What Is Exculpatory Evidence? | Explore Law Firms and Legal Advice

Exculpatory evidence is crucial for defendants in criminal cases. This type of evidence is favorable to the defendant and can help obtain a not guilty ruling.

Testimony, documents, video footage, DNA and other forms of physical evidence can be exculpatory evidence. The key is that the evidence supports the finding of a defendant not guilty of the crime being charged.

“Exculpatory evidence is evidence that tends to show that the person is not guilty of the crime he or she is accused of,” says Adam Hoffinger, a professor at the George Washington University Law School.

To be deemed exculpatory evidence, however, it does not need to prove a defendant’s innocence.

Exculpatory evidence can also simply indicate that the actions of the defendant were either justified or excused. This typically means that while the defendant is guilty of the crime, there are mitigating factors that limit the criminal liability. In these cases, the defendant is less culpable for committing a wrongful act due to the surrounding circumstances.

Due to the 1963 decision in Brady v. Maryland, the prosecution is legally compelled to turn over any exculpatory evidence it finds. During that case, the Supreme Court held that the government violated the defendant’s right to due process under the Fourteenth Amendment by withholding evidence that could have helped the defendant’s case.

Commonly referred to as the Brady rule, this established that prosecutors and law enforcement must disclose all evidence – even if it hurts their case. This rule is violated when prosecutors – and in most cases, law enforcement agencies – fail to provide the defendant or their lawyer with evidence that might be favorable to the defendant.

Prosecutors typically make the first call as to what is exculpatory evidence and, consequently, needs to be shared. However, the judge will ultimately decide whether a piece of information is exculpatory and must be disclosed.

If the prosecution withholds exculpatory evidence, there are a few different potential outcomes. These outcomes will largely depend on when this fact is revealed – whether the matter has yet to go to trial, is currently on trial or the trial has ended.

The Brady rule applies for the duration of the criminal matter. That includes everything from the pre-trial discovery process through the period after a defendant has been convicted. The discovery process is critical, as it is the period when parties obtain evidence from each other through interrogatories, depositions or requests for the production of documents.

If the defense finds that the prosecution is withholding exculpatory evidence during the pre-trial process, it can file a motion with the court to obtain the withheld evidence. During this stage, the stakes are relatively low for violations.

“Judges usually find that it’s no harm, no foul. You still have time to prepare or use the information,” Hoffinger says. However, if the prosecution still refuses to turn over evidence, even after being summoned to do so, it could be subject to sanctions or other penalties from the court.

During the trial, the consequences begin to heighten. A judge may order that the evidence be immediately presented in court. If it is early in the trial or the evidence has little impact, the trial will typically proceed. However, if it is late in the trial or has a major impact on the case, the judge may declare a mistrial.

The stakes of violating the Brady rule are at their highest when the prosecution has already secured a conviction. This is particularly true if the prosecution withheld the evidence to secure a conviction.

“The consequences can be very severe for the government,” Hoffinger says. The defense can make a motion for various forms of relief, including the overturning of a conviction or the “dismissal of an otherwise righteous case.”

How this is handled will depend on if the withholding is determined to be a mistake or relatively minor. In these circumstances, the case may be dismissed without prejudice by the judge.

However, if the judge determines that there was misconduct and the withholding of material is extreme, the case will be dismissed with prejudice. In these circumstances, the defendant cannot be retried for the crime. There will also be consequences for the prosecutors, with judges opening up an internal investigation of misconduct.

“There shouldn’t be any hard calls” if a prosecutor is on the fence about producing exculpatory evidence, Hoffinger explains. “It’s better and safer to err on the side of disclosure; the risk of not turning something over is too great.”