473 U.S.

667
105 S.Ct. 3375
87 L.Ed.2d 481

UNITED STATES, Petitioner,

v.
Hughes Anderson BAGLEY.
No. 84-48.
Argued March 20, 1985.
Decided July 2, 1985.

Syllabus
Respondent was indicted on charges of violating federal narcotics and
firearms statutes. Before trial, he filed a discovery motion requesting, inter
alia, "any deals, promises or inducements made to [Government]
witnesses in exchange for their testimony." The Government's response
did not disclose that any "deals, promises or inducements" had been made
to its two principal witnesses, who had assisted the Bureau of Alcohol,
Tobacco and Firearms (ATF) in conducting an undercover investigation of
respondent. But the Government did produce signed affidavits by these
witnesses recounting their undercover dealing with respondent and
concluding with the statement that the affidavits were made without any
threats or rewards or promises of reward. Respondent waived his right to a
jury trial and was tried before the District Court. The two principal
Government witnesses testified about both the firearms and narcotics
charges, and the court found respondent guilty on the narcotics charges
but not guilty on the firearms charges. Subsequently, in response to
requests made pursuant to the Freedom of Information Act and the
Privacy Act, respondent received copies of ATF contracts signed by the
principal Government witnesses during the undercover investigation and
stating that the Government would pay money to the witnesses
commensurate with the information furnished. Respondent then moved to
vacate his sentence, alleging that the Government's failure in response to
the discovery motion to disclose these contracts, which he could have
used to impeach the witnesses, violated his right to due process under
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, which
held that the prosecution's suppression of evidence favorable to an

accused upon request violates due process where the evidence is material
either to guilt or punishment. The District Court denied the motion,
finding beyond a reasonable doubt that had the existence of the ATF
contracts been disclosed to it during trial, the disclosure would not have
affected the outcome, because the principal Government witnesses'
testimony was primarily devoted to the firearms charges on which
respondent was acquitted, and was exculpatory on the narcotics charges.
The Court of Appeals reversed, holding that the Government's failure to
disclose the requested impeachment evidence that respondent could have
used to conduct an effective cross-examination of the Government's
principal witnesses required automatic reversal. The Court of Appeals also
stated that it "disagree[d]" with the District Court's conclusion that the
nondisclosure was harmless beyond a reasonable doubt, noting that the
witnesses' testimony was in fact inculpatory on the narcotics charges.
Held: The judgment is reversed, and the case is remanded.
719 F.2d 1462 (CA9 1983) reversed and remanded.
Justice BLACKMUN delivered the opinion of the Court with respect to
Parts I and II, concluding that the Court of Appeals erred in holding that
the prosecutor's failure to disclose evidence that could have been used
effectively to impeach important Government witnesses requires
automatic reversal. Such nondisclosure constitutes constitutional error and
requires reversal of the conviction only if the evidence is material in the
sense that its suppression might have affected the outcome of the trial. Pp.
674-678.
Justice BLACKMUN, joined by Justice O'CONNOR, delivered an
opinion with respect to Part III, concluding that the nondisclosed evidence
at issue is material only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would
have been different. A "reasonable probability" is a probability sufficient
to undermine confidence in the outcome. This standard of materiality is
sufficiently flexible to cover cases of prosecutorial failure to disclose
evidence favorable to the defense regardless of whether the defense makes
no request, a general request, or a specific request. Although the
prosecutor's failure to respond fully to a specific request may impair the
adversary process by having the effect of representing to the defense that
certain evidence does not exist, this possibility of impairment does not
necessitate a different standard of materiality. Under the standard stated
above, the reviewing court may consider directly any adverse effect that
the prosecutor's failure to respond might have had on the preparation or

presentation of the defendant's case. Pp. 678-684.

Justice WHITE, joined by THE CHIEF JUSTICE and Justice
REHNQUIST, being of the view that there is no reason to elaborate on
the relevance of the specificity of the defense's request for disclosure,
either generally or with respect to this case, concluded that reversal was
mandated simply because the Court of Appeals failed to apply the
"reasonable probability" standard of materiality to the nondisclosed
evidence in question. P. 685.
David A. Strauss, Washington, D.C., for petitioner.
Thomas W. Hillier, II, Seattle, Wash., for respondent.
Justice BLACKMUN announced the judgment of the Court and delivered
an opinion of the Court except as to Part III.

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215
(1963), this 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 punishment." The issue in the present case concerns
the standard of materiality to be applied in determining whether a conviction
should be reversed because the prosecutor failed to disclose requested evidence
that could have been used to impeach Government witnesses.

* In October 1977, respondent Hughes Anderson Bagley was indicted in the

Western District of Washington on 15 charges of violating federal narcotics and
firearms statutes. On November 18, 24 days before trial, respondent filed a
discovery motion. The sixth paragraph of that motion requested:

"The names and addresses of witnesses that the government intends to call at
trial. Also the prior criminal records of witnesses, and any deals, promises or
inducements made to witnesses in exchange for their testimony." App. 18. 1

The Government's two principal witnesses at the trial were James F. O'Connor
and Donald E. Mitchell. O'Connor and Mitchell were state law-enforcement
officers employed by the Milwaukee Railroad as private security guards.
Between April and June 1977, they assisted the federal Bureau of Alcohol,
Tobacco and Firearms (ATF) in conducting an undercover investigation of
respondent.

The Government's response to the discovery motion did not disclose that any
"deals, promises or inducements" had been made to O'Connor or Mitchell. In
apparent reply to a request in the motion's ninth paragraph for "[c]opies of all
Jencks Act material,"2 the Government produced a series of affidavits that
O'Connor and Mitchell had signed between April 12 and May 4, 1977, while
the undercover investigation was in progress. These affidavits recounted in
detail the undercover dealings that O'Connor and Mitchell were having at the
time with respondent. Each affidavit concluded with the statement, "I made this
statement freely and voluntarily without any threats or rewards, or promises of
reward having been made to me in return for it."3

Respondent waived his right to a jury trial and was tried before the court in
December 1977. At the trial, O'Connor and Mitchell testified about both the
firearms and the narcotics charges. On December 23, the court found
respondent guilty on the narcotics charges, but not guilty on the firearms
charges.

In mid-1980, respondent filed requests for information pursuant to the Freedom

of Information Act and to the Privacy Act of 1974, 5 U.S.C. 552 and 552a.
He received in response copies of ATF form contracts that O'Connor and
Mitchell had signed on May 3, 1977. Each form was entitled "Contract for
Purchase of Information and Payment of Lump Sum Therefor." The printed
portion of the form stated that the vendor "will provide" information to ATF
and that "upon receipt of such information by the Regional Director, Bureau of
Alcohol, Tobacco and Firearms, or his representative, and upon the
accomplishment of the objective sought to be obtained by the use of such
information to the satisfaction of said Regional Director, the United States will
pay to said vendor a sum commensurate with services and information
rendered." App. 22 and 23. Each form contained the following typewritten
description of services:

"That he will provide information regarding T-I and other violations committed
by Hughes A. Bagley, Jr.; that he will purchase evidence for ATF; that he will
cut [sic ] in an undercover capacity for ATF; that he will assist ATF in
gathering of evidence and testify against the violator in federal court." Ibid.

The figure "$300.00" was handwritten in each form on a line entitled "Sum to
Be Paid to Vendor."

10

Because these contracts had not been disclosed to respondent in response to his
pretrial discovery motion,4 respondent moved under 28 U.S.C. 2255 to vacate

his sentence. He alleged that the Government's failure to disclose the contracts,
which he could have used to impeach O'Connor and Mitchell, violated his right
to due process under Brady v. Maryland, supra.
11

The motion came before the same District Judge who had presided at
respondent's bench trial. An evidentiary hearing was held before a Magistrate.
The Magistrate found that the printed form contracts were blank when
O'Connor and Mitchell signed them and were not signed by an ATF
representative until after the trial. He also found that on January 4, 1978,
following the trial and decision in respondent's case, ATF made payments of
$300 to both O'Connor and Mitchell pursuant to the contracts.5 Although the
ATF case agent who dealt with O'Connor and Mitchell testified that these
payments were compensation for expenses, the Magistrate found that this
characterization was not borne out by the record. There was no documentation
for expenses in these amounts; Mitchell testified that his payment was not for
expenses, and the ATF forms authorizing the payments treated them as
rewards.

12

The District Court adopted each of the Magistrate's findings except for the last
one to the effect that "[n]either O'Connor nor Mitchell expected to receive the
payment of $300 or any payment from the United States for their testimony."
App. to Pet. for Cert. 7a, 12a, 14a. Instead, the court found that it was
"probable" that O'Connor and Mitchell expected to receive compensation, in
addition to their expenses, for their assistance, "though perhaps not for their
testimony." Id., at 7a. The District Court also expressly rejected, ibid., the
Magistrate's conclusion, id., at 14a, that: "Because neither witness was
promised or expected payment for his testimony, the United States did not
withhold, during pretrial discovery, information as to any 'deals, promises or
inducements' to these witnesses. Nor did the United States suppress evidence
favorable to the defendant, in violation of Brady v. Maryland, 373 U.S. 83 [83
S.Ct. 1194, 10 L.Ed.2d 215] (1963)."

13

The District Court found beyond a reasonable doubt, however, that had the
existence of the agreements been disclosed to it during trial, the disclosure
would have had no effect upon its finding that the Government had proved
beyond a reasonable doubt that respondent was guilty of the offenses for which
he had been convicted. Id., at 8a. The District Court reasoned: Almost all of the
testimony of both witnesses was devoted to the firearms charges in the
indictment. Respondent, however, was acquitted on those charges. The
testimony of O'Connor and Mitchell concerning the narcotics charges was
relatively very brief. On cross-examination, respondent's counsel did not seek to
discredit their testimony as to the facts of distribution but rather sought to show

that the controlled substances in question came from supplies that had been
prescribed for respondent's personal use. The answers of O'Connor and
Mitchell to this line of cross-examination tended to be favorable to respondent.
Thus, the claimed impeachment evidence would not have been helpful to
respondent and would not have affected the outcome of the trial. Accordingly,
the District Court denied respondent's motion to vacate his sentence.
14

The United States Court of Appeals for the Ninth Circuit reversed. Bagley v.
Lumpkin, 719 F.2d 1462 (1983). The Court of Appeals began by noting that,
according to precedent in the Circuit, prosecutorial failure to respond to a
specific Brady request is properly analyzed as error, and a resulting conviction
must be reversed unless the error is harmless beyond a reasonable doubt. The
court noted that the District Judge who had presided over the bench trial
concluded beyond a reasonable doubt that disclosure of the ATF agreement
would not have affected the outcome. The Court of Appeals, however, stated
that it "disagree[d]" with this conclusion. Id., at 1464. In particular, it disagreed
with the Government'sand the District Court'spremise that the testimony
of O'Connor and Mitchell was exculpatory on the narcotics charges, and that
respondent therefore would not have sought to impeach "his own witness." Id.,
at 1464, n. 1.

15

The Court of Appeals apparently based its reversal, however, on the theory that
the Government's failure to disclose the requested Brady information that
respondent could have used to conduct an effective cross-examination impaired
respondent's right to confront adverse witnesses. The court noted: "In Davis v.
Alaska, . . . the Supreme Court held that the denial of the 'right of effective
cross-examination' was ' "constitutional error of the first magnitude" ' requiring
automatic reversal." 719 F.2d, at 1464 (quoting Davis v. Alaska, 415 U.S. 308,
318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974) ) (emphasis added by Court of
Appeals). In the last sentence of its opinion, the Court of Appeals concluded:
"we hold that the government's failure to provide requested Brady information
to Bagley so that he could effectively cross-examine two important government
witnesses requires an automatic reversal." 719 F.2d, at 1464.

16

We granted certiorari, 469 U.S. 1016, 105 S.Ct. 427, 83 L.Ed.2d 354 (1984),
and we now reverse.

II
17

The holding in Brady v. Maryland requires disclosure only of evidence that is

both favorable to the accused and "material either to guilt or to punishment."
373 U.S., at 87, 83 S.Ct., at 1196. See also Moore v. Illinois, 408 U.S. 786,

794-795, 92 S.Ct. 2562, 2567-2568, 33 L.Ed.2d 706 (1972). The Court

explained in United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2397, 49
L.Ed.2d 342 (1976): "A fair analysis of the holding in Brady indicates that
implicit in the requirement of materiality is a concern that the suppressed
evidence might have affected the outcome of the trial." The evidence
suppressed in Brady would have been admissible only on the issue of
punishment and not on the issue of guilt, and therefore could have affected only
Brady's sentence and not his conviction. Accordingly, the Court affirmed the
lower court's restriction of Brady's new trial to the issue of punishment.
18

The Brady rule is based on the requirement of due process. Its purpose is not to
displace the adversary system as the primary means by which truth is
uncovered, but to ensure that a miscarriage of justice does not occur.6 Thus, the
prosecutor is not required to deliver his entire file to defense counsel,7 but only
to disclose evidence favorable to the accused that, if suppressed, would deprive
the defendant of a fair trial:

19

"For unless the omission deprived the defendant of a fair trial, there was no
constitutional violation requiring that the verdict be set aside; and absent a
constitutional violation, there was no breach of the prosecutor's constitutional
duty to disclose. . . .

20

". . . But to reiterate a critical point, the prosecutor will not have violated his
constitutional duty of disclosure unless his omission is of sufficient significance
to result in the denial of the defendant's right to a fair trial." 427 U.S., at 108, 96
S.Ct., at 2399.

21

In Brady and Agurs, the prosecutor failed to disclose exculpatory evidence. In

the present case, the prosecutor failed to disclose evidence that the defense
might have used to impeach the Government's witnesses by showing bias or
interest. Impeachment evidence, however, as well as exculpatory evidence, falls
within the Brady rule. See Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct.
763, 766, 31 L.Ed.2d 104 (1972). Such evidence is "evidence favorable to an
accused," Brady, 373 U.S., at 87, 83 S.Ct., at 1196, so that, if disclosed and
used effectively, it may make the difference between conviction and acquittal.
Cf. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217
(1959) ("The jury's estimate of the truthfulness and reliability of a given
witness may well be determinative of guilt or innocence, and it is upon such
subtle factors as the possible interest of the witness in testifying falsely that a
defendant's life or liberty may depend").

22

The Court of Appeals treated impeachment evidence as constitutionally

22

The Court of Appeals treated impeachment evidence as constitutionally

different from exculpatory evidence. According to that court, failure to disclose
impeachment evidence is "even more egregious" than failure to disclose
exculpatory evidence "because it threatens the defendant's right to confront
adverse witnesses." 719 F.2d, at 1464. Relying on Davis v. Alaska, 415 U.S.
308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Court of Appeals held that the
Government's failure to disclose requested impeachment evidence that the
defense could use to conduct an effective cross-examination of important
prosecution witnesses constitutes " 'constitutional error of the first magnitude' "
requiring automatic reversal. 719 F.2d, at 1464 (quoting Davis v. Alaska, supra,
415 U.S., at 318, 94 S.Ct., at 1111).

23

This Court has rejected any such distinction between impeachment evidence
and exculpatory evidence. In Giglio v. United States, supra, the Government
failed to disclose impeachment evidence similar to the evidence at issue in the
present case, that is, a promise made to the key Government witness that he
would not be prosecuted if he testified for the Government. This Court said:

24

"When the 'reliability of a given witness may well be determinative of guilt or

innocence,' nondisclosure of evidence affecting credibility falls within th[e]
general rule [of Brady ]. We do not, however, automatically require a new trial
whenever 'a combing of the prosecutors' files after the trial has disclosed
evidence possibly useful to the defense but not likely to have changed the
verdict. . . .' A finding of materiality of the evidence is required under Brady. . .
. A new trial is required if 'the false testimony could . . . in any reasonable
likelihood have affected the judgment of the jury. . . .' " 405 U.S., at 154, 92
S.Ct., at 766 (citations omitted).

25

Thus, the Court of Appeals' holding is inconsistent with our precedents.

26

Moreover, the court's reliance on Davis v. Alaska for its "automatic reversal"
rule is misplaced. In Davis, the defense sought to cross-examine a crucial
prosecution witness concerning his probationary status as a juvenile delinquent.
The defense intended by this cross-examination to show that the witness might
have made a faulty identification of the defendant in order to shift suspicion
away from himself or because he feared that his probationary status would be
jeopardized if he did not satisfactorily assist the police and prosecutor in
obtaining a conviction. Pursuant to a state rule of procedure and a state statute
making juvenile adjudications inadmissible, the trial judge prohibited the
defense from conducting the cross-examination. This Court reversed the
defendant's conviction, ruling that the direct restriction on the scope of crossexamination denied the defendant "the right of effective cross-examination

which ' "would be constitutional error of the first magnitude and no amount of
showing of want of prejudice would cure it." Brookhart v. Janis, 384 U.S. 1, 3"
' [86 S.Ct. 1245, 1246, 16 L.Ed.2d 314]." 415 U.S., at 318, 94 S.Ct., at 1111
(quoting Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 749, 19 L.Ed.2d 956
(1968)). See also United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039,
2047, 80 L.Ed.2d 657 (1984).
27

The present case, in contrast, does not involve any direct restriction on the
scope of cross-examination. The defense was free to cross-examine the
witnesses on any relevant subject, including possible bias or interest resulting
from inducements made by the Government. The constitutional error, if any, in
this case was the Government's failure to assist the defense by disclosing
information that might have been helpful in conducting the cross-examination.
As discussed above, such suppression of evidence amounts to a constitutional
violation only if it deprives the defendant of a fair trial. Consistent with "our
overriding concern with the justice of the finding of guilt," United States v.
Agurs, 427 U.S., at 112, 96 S.Ct., at 2401, a constitutional error occurs, and the
conviction must be reversed, only if the evidence is material in the sense that its
suppression undermines confidence in the outcome of the trial.

III
A.
28

It remains to determine the standard of materiality applicable to the

nondisclosed evidence at issue in this case. Our starting point is the framework
for evaluating the materiality of Brady evidence established in United States v.
Agurs. The Court in Agurs distinguished three situations involving the
discovery, after trial, of information favorable to the accused that had been
known to the prosecution but unknown to the defense. The first situation was
the prosecutor's knowing use of perjured testimony or, equivalently, the
prosecutor's knowing failure to disclose that testimony used to convict the
defendant was false. The Court noted the well-established rule that "a
conviction obtained by the knowing use of perjured testimony is fundamentally
unfair, and must be set aside if there is any reasonable likelihood that the false
testimony could have affected the judgment of the jury." 427 U.S., at 103, 96
S.Ct., at 2397 (footnote omitted).8 Although this rule is stated in terms that treat
the knowing use of perjured testimony as error subject to harmless-error
review, 9 it may as easily be stated as a materiality standard under which the fact
that testimony is perjured is considered material unless failure to disclose it
would be harmless beyond a reasonable doubt. The Court in Agurs justified this
standard of materiality on the ground that the knowing use of perjured

testimony involves prosecutorial misconduct and, more importantly, involves

"a corruption of the truth-seeking function of the trial process." Id., at 104, 96
S.Ct., at 2397.
29

At the other extreme is the situation in Agurs itself, where the defendant does
not make a Brady request and the prosecutor fails to disclose certain evidence
favorable to the accused. The Court rejected a harmless-error rule in that
situation, because under that rule every nondisclosure is treated as error, thus
imposing on the prosecutor a constitutional duty to deliver his entire file to
defense counsel.10 427 U.S., at 111-112, 96 S.Ct., at 2401. At the same time,
the Court rejected a standard that would require the defendant to demonstrate
that the evidence if disclosed probably would have resulted in acquittal. Id., at
111, 96 S.Ct., at 2401. The Court reasoned: "If the standard applied to the usual
motion for a new trial based on newly discovered evidence were the same when
the evidence was in the State's possession as when it was found in a neutral
source, there would be no special significance to the prosecutor's obligation to
serve the cause of justice." Ibid. The standard of materiality applicable in the
absence of a specific Brady request is therefore stricter than the harmless-error
standard but more lenient to the defense than the newly-discovered-evidence
standard.

30

The third situation identified by the Court in Agurs is where the defense makes
a specific request and the prosecutor fails to disclose responsive evidence.11
The Court did not define the standard of materiality applicable in this
situation,12 but suggested that the standard might be more lenient to the defense
than in the situation in which the defense makes no request or only a general
request. 427 U.S., at 106, 96 S.Ct., at 2398. The Court also noted: "When the
prosecutor receives a specific and relevant request, the failure to make any
response is seldom, if ever, excusable." Ibid.

31

The Court has relied on and reformulated the Agurs standard for the materiality
of undisclosed evidence in two subsequent cases arising outside the Brady
context. In neither case did the Court's discussion of the Agurs standard
distinguish among the three situations described in Agurs. In United States v.
Valenzuela-Bernal, 458 U.S. 858, 874, 102 S.Ct. 3440, 3450, 73 L.Ed.2d 1193
(1982), the Court held that due process is violated when testimony is made
unavailable to the defense by Government deportation of witnesses "only if
there is a reasonable likelihood that the testimony could have affected the
judgment of the trier of fact." And in Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court held that a new trial must be
granted when evidence is not introduced because of the incompetence of
counsel only if "there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different."
Id., at 694, 104 S.Ct., at 2068. 13 The Strickland Court defined a "reasonable
probability" as "a probability sufficient to undermine confidence in the
outcome." Ibid.
32

We find the Strickland formulation of the Agurs test for materiality sufficiently
flexible to cover the "no request," "general request," and "specific request"
cases of prosecutorial failure to disclose evidence favorable to the accused: The
evidence is material only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have
been different. A "reasonable probability" is a probability sufficient to
undermine confidence in the outcome.

33

The Government suggests that a materiality standard more favorable to the

defendant reasonably might be adopted in specific request cases. See Brief for
United States 31. The Government notes that an incomplete response to a
specific request not only deprives the defense of certain evidence, but also has
the effect of representing to the defense that the evidence does not exist. In
reliance on this misleading representation, the defense might abandon lines of
independent investigation, defenses, or trial strategies that it otherwise would
have pursued. Ibid.

34

We agree that the prosecutor's failure to respond fully to a Brady request may
impair the adversary process in this manner. And the more specifically the
defense requests certain evidence, thus putting the prosecutor on notice of its
value, the more reasonable it is for the defense to assume from the
nondisclosure that the evidence does not exist, and to make pretrial and trial
decisions on the basis of this assumption. This possibility of impairment does
not necessitate a different standard of materiality, however, for under the
Strickland formulation the reviewing court may consider directly any adverse
effect that the prosecutor's failure to respond might have had on the preparation
or presentation of the defendant's case. The reviewing court should assess the
possibility that such effect might have occurred in light of the totality of the
circumstances and with an awareness of the difficulty of reconstructing in a
post-trial proceeding the course that the defense and the trial would have taken
had the defense not been misled by the prosecutor's incomplete response.

B
35

In the present case, we think that there is a significant likelihood that the
prosecutor's response to respondent's discovery motion misleadingly induced
defense counsel to believe that O'Connor and Mitchell could not be impeached

on the basis of bias or interest arising from inducements offered by the

Government. Defense counsel asked the prosecutor to disclose any
inducements that had been made to witnesses, and the prosecutor failed to
disclose that the possibility of a reward had been held out to O'Connor and
Mitchell if the information they supplied led to "the accomplishment of the
objective sought to be obtained . . . to the satisfaction of [the Government]."
App. 22 and 23. This possibility of a reward gave O'Connor and Mitchell a
direct, personal stake in respondent's conviction. The fact that the stake was not
guaranteed through a promise or binding contract, but was expressly contingent
on the Government's satisfaction with the end result, served only to strengthen
any incentive to testify falsely in order to secure a conviction. Moreover, the
prosecutor disclosed affidavits that stated that O'Connor and Mitchell received
no promises of reward in return for providing information in the affidavits
implicating respondent in criminal activity. In fact, O'Connor and Mitchell
signed the last of these affidavits the very day after they signed the ATF
contracts. While the Government is technically correct that the blank contracts
did not constitute a "promise of reward," the natural effect of these affidavits
would be misleadingly to induce defense counsel to believe that O'Connor and
Mitchell provided the information in the affidavits, and ultimately their
testimony at trial recounting the same information, without any "inducements."
36

The District Court, nonetheless, found beyond a reasonable doubt that, had the
information that the Government held out the possibility of reward to its
witnesses been disclosed, the result of the criminal prosecution would not have
been different. If this finding were sustained by the Court of Appeals, the
information would be immaterial even under the standard of materiality
applicable to the prosecutor's knowing use of perjured testimony. Although the
express holding of the Court of Appeals was that the nondisclosure in this case
required automatic reversal, the Court of Appeals also stated that it "disagreed"
with the District Court's finding of harmless error. In particular, the Court of
Appeals appears to have disagreed with the factual premise on which this
finding expressly was based. The District Court reasoned that O'Connor's and
Mitchell's testimony was exculpatory on the narcotics charges. The Court of
Appeals, however, concluded, after reviewing the record, that O'Connor's and
Mitchell's testimony was in fact inculpatory on those charges. 719 F.2d, at
1464, n. 1. Accordingly, we reverse the judgment of the Court of Appeals and
remand the case to that court for a determination whether there is a reasonable
probability that, had the inducement offered by the Government to O'Connor
and Mitchell been disclosed to the defense, the result of the trial would have
been different.

37

It is so ordered.

38

Justice POWELL took no part in the decision of this case.

39

Justice WHITE, with whom THE CHIEF JUSTICE and Justice REHNQUIST
join, concurring in part and concurring in the judgment.

40

I agree with the Court that respondent is not entitled to have his conviction
overturned unless he can show that the evidence withheld by the Government
was "material," and I therefore join Parts I and II of the Court's opinion. I also
agree with Justice BLACKMUN that for purposes of this inquiry, "evidence is
material only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been
different." Ante, at 682. As the Justice correctly observes, this standard is
"sufficiently flexible" to cover all instances of prosecutorial failure to disclose
evidence favorable to the accused. Ibid. Given the flexibility of the standard
and the inherently factbound nature of the cases to which it will be applied,
however, I see no reason to attempt to elaborate on the relevance to the inquiry
of the specificity of the defense's request for disclosure, either generally or with
respect to this case. I would hold simply that the proper standard is one of
reasonable probability and that the Court of Appeals' failure to apply this
standard necessitates reversal. I therefore concur in the judgment.

41

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.

42

When the Government withholds from a defendant evidence that might

impeach the prosecution's only witnesses, that failure to disclose cannot be
deemed harmless error. Because that is precisely the nature of the undisclosed
evidence in this case, I would affirm the judgment of the Court of Appeals and
would not remand for further proceedings.

43

* The federal grand jury indicted the respondent, Hughes Anderson Bagley, on
charges involving possession of firearms and controlled substances with intent
to distribute. Following a bench trial, Bagley was found not guilty of the
firearms charges, guilty of two counts of knowingly and intentionally
distributing Valium, and guilty of several counts of a lesser included offense of
possession of controlled substances. He was sentenced to six months'
imprisonment and a special parole term of five years on the first count of
distribution, and to three years of imprisonment, which were suspended, and
five years' probation, on the second distribution count. He received a suspended
sentence and five years' probation for the possession convictions.

44

The record plainly demonstrates that on the two counts for which Bagley

received sentences of imprisonment, the Government's entire case hinged on

the testimony of two private security guards who aided the Bureau of Alcohol,
Tobacco and Firearms (ATF) in its investigation of Bagley. In 1977 the two
guards, O'Connor and Mitchell, worked for the Milwaukee Railroad; for about
three years, they had been social acquaintances of Bagley, with whom they
often shared coffee breaks. 7 Tr. 2-3; 8 Tr. 2a-3a. At trial, they testified that on
two separate occasions they had visited Bagley at his home, where Bagley had
responded to O'Connor's complaint that he was extremely anxious by giving
him Valium pills. In total, Bagley received $8 from O'Connor, representing the
cost of the pills. At trial, Bagley testified that he had a prescription for the
Valium because he suffered from a bad back, 14 Tr. 963-964. No testimony to
the contrary was introduced. O'Connor and Mitchell each testified that they had
worn concealed transmitters and body recorders at these meetings, but the tape
recordings were insufficiently clear to be admitted at trial and corroborate their
testimony.
45

Before trial, counsel for Bagley had filed a detailed discovery motion
requesting, among other things, "any deals, promises or inducements made to
witnesses in exchange for their testimony." App. 17-19. In response to the
discovery request, the Government had provided affidavits sworn by O'Connor
and Mitchell that had been prepared during their investigation of Bagley. Each
affidavit recounted in detail the dealings the witnesses had had with Bagley and
closed with the declaration, "I made this statement freely and voluntarily
without any threats or rewards, or promises of reward having been made to me
in return for it." Brief for United States 3, quoting Memorandum of Points and
Authorities in Support of Pet. for Habeas Corpus, CV80-3592-RJK(M) (CD
Cal.) Exhibits 1-9. Both of these agents testified at trial thereafter, and the
Government did not disclose the existence of any deals, promises, or
inducements. Counsel for Bagley asked O'Connor on cross-examination
whether he was testifying in response to pressure or threats from the
Government about his job, and O'Connor said he was not. 7 Tr. 89-90. In light
of the affidavits, as well as the prosecutor's silence as to the existence of any
promises, deals or inducements, counsel did not pursue the issue of bias of
either guard.

46

As it turns out, however, in May 1977, seven months prior to trial, O'Connor
and Mitchell each had signed an agreement providing that ATF would pay them
for information they provided. The form was entitled "Contract for Purchase of
Information and Payment of Lump Sum Therefor," and provided that the
Bureau would, "upon the accomplishment of the objective sought to be
obtained . . . pay to said vendor a sum commensurate with services and
information rendered." App. 22-23. It further invited the Bureau's special agent

in charge of the investigation, Agent Prins, to recommend an amount to be paid

after the information received had proved "worthy of compensation." Agent
Prins had personally presented these forms to O'Connor and Mitchell for their
signatures. The two witnesses signed the last of their affidavits, which declared
the absence of any promise of reward, the day after they signed the ATF forms.
After trial, Agent Prins requested that O'Connor and Mitchell each be paid
$500, but the Bureau reduced these "rewards" to $300 each. App. to Pet. for
Cert. 14a. The District Court Judge concluded that "it appears probable to the
Court that O'Connor and Mitchell did expect to receive from the United States
some kind of compensation, over and above their expenses, for their assistance,
though perhaps not for their testimony." Id., at 7a.
47

Upon discovering these ATF forms through a Freedom of Information Act

request, Bagley sought relief from his conviction. The District Court Judge
denied Bagley's motion to vacate his sentence stating that because he was the
same judge who had been the original trier of fact, he was able to determine the
effect the contracts would have had on his decision, more than four years
earlier, to convict Bagley. The judge stated that beyond a reasonable doubt the
contracts, if disclosed, would have had no effect upon the convictions:

48

"The Court has read in their entirety the transcripts of the testimony of James P.
O'Connor and Donald E. Mitchell at the trial. . . . Almost all of the testimony of
both of those witnesses was devoted to the firearm charges in the indictment.
The Court found the defendant not guilty of those charges. With respect to the
charges against the defendant of distributing controlled substances and
possessing controlled substances with the intention of distributing them, the
testimony of O'Connor and Mitchell was relatively very brief. With respect to
the charges relating to controlled substances cross-examination of those
witnesses by defendant's counsel did not seek to discredit their testimony as to
the facts of distribution but rather sought to show that the controlled substances
in question came from supplies which had been prescribed for defendant's own
use. As to that aspect of their testimony, the testimony of O'Connor and
Mitchell tended to be favorable to the defendant." Id., at 8a.

49

The foregoing statement, as to which the Court remands for further

consideration, is seriously flawed on its face. First, the testimony that the court
describes was in fact the only inculpatory testimony in the case as to the two
counts for which Bagley received a sentence of imprisonment. If, as the judge
claimed, the testimony of the two information "vendors" was "very brief" and
in part favorable to the defendant, that fact shows the weakness of the
prosecutor's case, not the harmlessness of the error. If the testimony that might
have been impeached is weak and also cumulative, corroborative, or tangential,

the failure to disclose the impeachment evidence could conceivably be held

harmless. But when the testimony is the start and finish of the prosecution's
case, and is weak nonetheless, quite a different conclusion must necessarily be
drawn.
50

Second, the court's statement that Bagley did not attempt to discredit the
witnesses' testimony, as if to suggest that impeachment evidence would not
have been used by the defense, ignores the realities of trial preparation and
strategy, and is factually erroneous as well. Initially, the Government's failure
to disclose the existence of any inducements to its witnesses, coupled with its
disclosure of affidavits stating that no promises had been made, would lead all
but the most careless lawyer to step wide and clear of questions about promises
or inducements. The combination of nondisclosure and disclosure would
simply lead any reasonable attorney to believe that the witness could not be
impeached on that basis. Thus, a firm avowal that no payment is being received
in return for assistance and testimony, if offered at trial by a witness who is not
even a Government employee, could be devastating to the defense. A wise
attorney would, of necessity, seek an alternative defense strategy.

51

Moreover, counsel for Bagley in fact did attempt to discredit O'Connor, by

asking him whether two ATF agents had pressured him or had threatened that
his job might be in jeopardy, in order to get him to cooperate. 7 Tr. 89-90. But
when O'Connor answered in the negative, ibid., counsel stopped this line of
questioning. In addition, counsel for Bagley attempted to argue to the District
Court, in his closing argument, that O'Connor and Mitchell had "fabricated"
their accounts, 14 Tr. 1117, but the court rejected the proposition:

52

"Let me say this to you. I would find it hard to believe really that their
testimony was fabricated. I think they might have been mistaken. You know, it
is possible that they were mistaken. I really did not get the impression at all
that either one or both of those men were trying at least in court here to make a
case against the defendant." Id., at 1117-1118. (Emphasis added.)

53

The District Court, in so saying, of course had seen no evidence to suggest that
the two witnesses might have any motive for "mak[ing] a case" against Bagley.
Yet, as Justice BLACKMUN points out, the possibility of a reward, the size of
which is directly related to the Government's success at trial, gave the two
witnesses a "personal stake" in the conviction and an "incentive to testify
falsely in order to secure a conviction." Ante, at 683.

54

Nor is this case unique. Whenever the Government fails, in response to a

request, to disclose impeachment evidence relating to the credibility of its key

witnesses, the truth-finding process of trial is necessarily thrown askew. The
failure to disclose evidence affecting the overall credibility of witnesses
corrupts the process to some degree in all instances, see Giglio v. United States,
405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S.
264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); United States v. Agurs, 427 U.S.
97, 121, 96 S.Ct. 2392, 2406, 49 L.Ed.2d 342 (1976) (MARSHALL, J.,
dissenting), but when "the 'reliability of a given witness may well be
determinative of guilt or innocence,' " Giglio, supra, 405 U.S., at 154, 92 S.Ct.,
at 766 (quoting Napue, supra, 360 U.S., at 269, 79 S.Ct., at 1177), and when
"the Government's case depend[s] almost entirely on" the testimony of a certain
witness, 405 U.S., at 154, 92 S.Ct., at 766, evidence of that witness' possible
bias simply may not be said to be irrelevant, or its omission harmless. As THE
CHIEF JUSTICE said in Giglio v. United States, in which the Court ordered a
new trial in a case in which a promise to a key witness was not disclosed to the
jury:
55

"[W]ithout [Taliento's testimony] there could have been no indictment and no

evidence to carry the case to the jury. Taliento's credibility as a witness was
therefore an important issue in the case, and evidence of any understanding or
agreement as to a future prosecution would be relevant to his credibility and the
jury was entitled to know of it.

56

"For these reasons, the due process requirements enunciated in Napue and other
cases cited earlier require a new trial." Id., at 154-155, 92 S.Ct., at 766.

57

Here, too, witnesses O'Connor and Mitchell were crucial to the Government's
case. Here, too, their personal credibility was potentially dispositive,
particularly since the allegedly corroborating tape recordings were not audible.
It simply cannot be denied that the existence of a contract signed by those
witnesses, promising a reward whose size would depend "on the Government's
satisfaction with the end result," ante, at 683, might sway the trier of fact, or
cast doubt on the truth of all that the witnesses allege. In such a case, the trier of
fact is absolutely entitled to know of the contract, and the defense counsel is
absolutely entitled to develop his case with an awareness of it. Whatever the
applicable standard of materiality, see infra, in this instance it undoubtedly is
well met.

58

Indeed, Giglio essentially compels this result. The similarities between this case
and that one are evident. In both cases, the triers of fact were left unaware of
Government inducements to key witnesses. In both cases, the individual trial
prosecutors acted in good faith when they failed to disclose the exculpatory

evidence. See Giglio, supra, 405 U.S., at 151-153, 92 S.Ct., at 764-765; App. to
Pet. for Cert. 13a (Magistrate's finding that Bagley prosecutor would have
disclosed information had he known of it). The sole difference between the two
cases lies in the fact that in Giglio, the prosecutor affirmatively stated to the
trier of fact that no promises had been made. Here, silence in response to a
defense request took the place of an affirmative error at trialalthough the
prosecutor did make an affirmative misrepresentation to the defense in the
affidavits. Thus, in each case, the trier of fact was left unaware of powerful
reasons to question the credibility of the witnesses. "[T]he truth-seeking
process is corrupted by the withholding of evidence favorable to the defense,
regardless of whether the evidence is directly contradictory to evidence offered
by the prosecution." Agurs, supra, 427 U.S., at 120, 96 S.Ct., at 2405
(MARSHALL, J., dissenting). In this case, as in Giglio, a new trial is in order,
and the Court of Appeals correctly reversed the District Court's denial of such
relief.
II
59

Instead of affirming, the Court today chooses to reverse and remand the case
for application of its newly stated standard to the facts of this case. While I
believe that the evidence at issue here, which remained undisclosed despite a
particular request, undoubtedly was material under the Court's standard, I also
have serious doubts whether the Court's definition of the constitutional right at
issue adequately takes account of the interests this Court sought to protect in its
decision in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963).

A.
60

I begin from the fundamental premise, which hardly bears repeating, that "[t]he
purpose of a trial is as much the acquittal of an innocent person as it is the
conviction of a guilty one." Application of Kapatos, 208 F.Supp. 883, 888
(SDNY 1962); see Giles v. Maryland, 386 U.S. 66, 98, (1967) (Fortas, J.,
concurring in judgment) ("The State's obligation is not to convict, but to see
that, so far as possible, truth emerges"). When evidence favorable to the
defendant is known to exist, disclosure only enhances the quest for truth; it
takes no direct toll on that inquiry. Moreover, the existence of any small piece
of evidence favorable to the defense may, in a particular case, create just the
doubt that prevents the jury from returning a verdict of guilty. The private whys
and wherefores of jury deliberations pose an impenetrable barrier to our ability
to know just which piece of information might make, or might have made, a
difference.

61

When the state does not disclose information in its possession that might
reasonably be considered favorable to the defense, it precludes the trier of fact
from gaining access to such information and thereby undermines the reliability
of the verdict. Unlike a situation in which exculpatory evidence exists but
neither the defense nor the prosecutor has uncovered it, in this situation the
state already has, resting in its files, material that would be of assistance to the
defendant. With a minimum of effort, the state could improve the real and
apparent fairness of the trial enormously, by assuring that the defendant may
place before the trier of fact favorable evidence known to the government. This
proposition is not new. We have long recognized that, within the limit of the
state's ability to identify so-called exculpatory information, the state's concern
for a fair verdict precludes it from withholding from the defense evidence
favorable to the defendant's case in the prosecutor's files. See, e.g., Pyle v.
Kansas, 317 U.S. 213, 215-216, 63 S.Ct. 177, 178-179, 87 L.Ed. 214 (1942)
(allegation that imprisonment resulted from perjured testimony and deliberate
suppression by authorities of evidence favorable to him "charge a deprivation of
rights guaranteed by the Federal Constitution").1

62

This recognition no doubt stems in part from the frequently considerable

imbalance in resources between most criminal defendants and most prosecutors'
offices. Many, perhaps most, criminal defendants in the United States are
represented by appointed counsel, who often are paid minimal wages and
operate on shoestring budgets. In addition, unlike police, defense counsel
generally is not present at the scene of the crime, or at the time of arrest, but
instead comes into the case late. Moreover, unlike the government, defense
counsel is not in the position to make deals with witnesses to gain evidence.
Thus, an inexperienced, unskilled, or unaggressive attorney often is unable to
amass the factual support necessary to a reasonable defense. When favorable
evidence is in the hands of the prosecutor but not disclosed, the result may well
be that the defendant is deprived of a fair chance before the trier of fact, and the
trier of fact is deprived of the ingredients necessary to a fair decision. This grim
reality, of course, poses a direct challenge to the traditional model of the
adversary criminal process,2 and perhaps because this reality so directly
questions the fairness of our longstanding processes, change has been cautious
and halting. Thus, the Court has not gone the full road and expressly required
that the state provide to the defendant access to the prosecutor's complete files,
or investigators who will assure that the defendant has an opportunity to
discover every existing piece of helpful evidence. But cf. Ake v. Oklahoma, 470
U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (access to assistance of
psychiatrist constitutionally required on proper showing of need). Instead, in
acknowledgment of the fact that important interests are served when potentially
favorable evidence is disclosed, the Court has fashioned a compromise,

requiring that the prosecution identify and disclose to the defendant favorable
material that it possesses. This requirement is but a small, albeit important; step
toward equality of justice.3
B
63

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), of
course, established this requirement of disclosure as a fundamental element of a
fair trial by holding that a defendant was denied due process if he was not given
access to favorable evidence that is material either to guilt or punishment. Since
Brady was decided, this Court has struggled, in a series of decisions, to define
how best to effectuate the right recognized. To my mind, the Brady decision,
the reasoning that underlay it, and the fundamental interest in a fair trial,
combine to give the criminal defendant the right to receive from the prosecutor,
and the prosecutor the affirmative duty to turn over to the defendant, all
information known to the government that might reasonably be considered
favorable to the defendant's case. Formulation of this right, and imposition of
this duty, are "the essence of due process of law. It is the State that tries a man,
and it is the State that must insure that the trial is fair." Moore v. Illinois, 408
U.S. 786, 809-810, 92 S.Ct. 2562, 2575-2576, 33 L.Ed.2d 706 (1972)
(MARSHALL, J., concurring in part and dissenting in part). If that right is
denied, or if that duty is shirked, however, I believe a reviewing court should
not automatically reverse but instead should apply the harmless-error test the
Court has developed for instances of error affecting constitutional rights. See
Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

64

My view is based in significant part on the reality of criminal practice and on

the consequently inadequate protection to the defendant that a different rule
would offer. To implement Brady, courts must of course work within the
confines of the criminal process. Our system of criminal justice is animated by
two seemingly incompatible notions: the adversary model, and the state's
primary concern with justice, not convictions. Brady, of course, reflects the
latter goal of justice, and is in some ways at odds with the competing model of
a sporting event. Our goal, then, must be to integrate the Brady right into the
harsh, daily reality of this apparently discordant criminal process.

65

At the trial level, the duty of the state to effectuate Brady devolves into the duty
of the prosecutor; the dual role that the prosecutor must play poses a serious
obstacle to implementing Brady. The prosecutor is by trade, if not necessity, a
zealous advocate. He is a trained attorney who must aggressively seek
convictions in court on behalf of a victimized public. At the same time, as a
representative of the state, he must place foremost in his hierarchy of interests

the determination of truth. Thus, for purposes of Brady, the prosecutor must
abandon his role as an advocate and pore through his files, as objectively as
possible, to identify the material that could undermine his case. Given this
obviously unharmonious role, it is not surprising that these advocates
oftentimes overlook or downplay potentially favorable evidence, often in cases
in which there is no doubt that the failure to disclose was a result of absolute
good faith. Indeed, one need only think of the Fourth Amendment's requirement
of a neutral intermediary, who tests the strength of the policeman-advocate's
facts, to recognize the curious status Brady imposes on a prosecutor. One
telling example, offered by Judge Newman when he was a United States
Attorney, suffices:
66

"I recently had occasion to discuss [Brady] at a PLI Conference in New York
City before a large group of State prosecutors. . . . I put to them this case: You
are prosecuting a bank robbery. You have talked to two or three of the tellers
and one or two of the customers at the time of the robbery. They have all taken
a look at your defendant in a line-up, and they have said, 'This is the man.' In
the course of your investigation you also have found another customer who was
in the bank that day, who viewed the suspect, and came back and said, 'This is
not the man.'

67

"The question I put to these prosecutors was, do you believe you should
disclose to the defense the name of the witness who, when he viewed the
suspect, said 'that is not the man'? In a room of prosecutors not quite as large as
this group but almost as large, only two hands went up. There were only two
prosecutors in that group who felt they should disclose or would disclose that
information. Yet I was putting to them what I thought was the easiest casethe
clearest case for disclosure of exculpatory information!" J. Newman, A Panel
Discussion before the Judicial Conference of the Second Judicial Circuit (Sept.
8, 1967), reprinted in Discovery in Criminal Cases, 44 F.R.D. 481, 500-501
(1968) (hereafter Newman).

68

While familiarity with Brady no doubt has increased since 1967, the dual role
that the prosecutor must play, and the very real pressures that role creates, have
not changed.

69

The prosecutor surely greets the moment at which he must turn over Brady
material with little enthusiasm. In perusing his files, he must make the often
difficult decision as to whether evidence is favorable, and must decide on
which side to err when faced with doubt. In his role as advocate, the answers
are clear. In his role as representative of the state, the answers should be
equally clear, and often to the contrary. Evidence that is of doubtful worth in

the eyes of the prosecutor could be of inestimable value to the defense, and
might make the difference to the trier of fact.
70

Once the prosecutor suspects that certain information might have favorable
implications for the defense, either because it is potentially exculpatory or
relevant to credibility, I see no reason why he should not be required to disclose
it. After all, favorable evidence indisputably enhances the truth-seeking process
at trial. And it is the job of the defense, not the prosecution, to decide whether
and in what way to use arguably favorable evidence. In addition, to require
disclosure of all evidence that might reasonably be considered favorable to the
defendant would have the precautionary effect of assuring that no information
of potential consequence is mistakenly overlooked. By requiring full disclosure
of favorable evidence in this way, courts could begin to assure that a possibly
dispositive piece of information is not withheld from the trier of fact by a
prosecutor who is torn between the two roles he must play. A clear rule of this
kind, coupled with a presumption in favor of disclosure, also would facilitate
the prosecutor's admittedly difficult task by removing a substantial amount of
unguided discretion.

71

If a trial will thereby be more just, due process would seem to require such a
rule absent a countervailing interest. I see little reason for the government to
keep such information from the defendant. Its interest in nondisclosure at the
trial stage is at best slight: the government apparently seeks to avoid the
administrative hassle of disclosure, and to prevent disclosure of inculpatory
evidence that might result in witness intimidation and manufactured rebuttal
evidence.4 Neither of these concerns, however, counsels in favor of a rule of
nondisclosure in close or ambiguous cases. To the contrary, a rule simplifying
the disclosure decision by definition does not make that decision more
complex. Nor does disclosure of favorable evidence inevitably lead to
disclosure of inculpatory evidence, as might an open file policy, or to the
anticipated wrongdoings of defendants and their lawyers, if indeed such fears
are warranted. We have other mechanisms for disciplining unscrupulous
defense counsel; hamstringing their clients need not be one of them. I simply do
not find any state interest that warrants withholding from a presumptively
innocent defendant, whose liberty is at stake in the proceeding, information that
bears on his case and that might enable him to defend himself.

72

Under the foregoing analysis, the prosecutor's duty is quite straightforward: he

must divulge all evidence that reasonably appears favorable to the defendant,
erring on the side of disclosure.

73

The Court, however, offers a complex alternative. It defines the right not by
reference to the possible usefulness of the particular evidence in preparing and
presenting the case, but retrospectively, by reference to the likely effect the
evidence will have on the outcome of the trial. Thus, the Court holds that due
process does not require the prosecutor to turn over evidence unless the
evidence is "material," and the Court states that evidence is "material" "only if
there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different." Ante, at 682.
Although this looks like a post-trial standard of review, see, e.g., Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (adopting
this standard of review), it is not. Instead, the Court relies on this review
standard to define the contours of the defendant's constitutional right to certain
material prior to trial. By adhering to the view articulated in United States v.
Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)that there is no
constitutional duty to disclose evidence unless nondisclosure would have a
certain impact on the trialthe Court permits prosecutors to withhold with
impunity large amounts of undeniably favorable evidence, and it imposes on
prosecutors the burden to identify and disclose evidence pursuant to a pretrial
standard that virtually defies definition.

74

The standard for disclosure that the Court articulates today enables prosecutors
to avoid disclosing obviously exculpatory evidence while acting well within the
bounds of their constitutional obligation. Numerous lower court cases provide
examples of evidence that is undoubtedly favorable but not necessarily
"material" under the Court's definition, and that consequently would not have to
be disclosed to the defendant under the Court's view. See, e.g., United States v.
Sperling, 726 F.2d 69, 71-72 (CA2 1984) (prior statement disclosing motive of
key Government witness to testify), cert. denied, 467 U.S. 1243, 104 S.Ct.
3516, 82 L.Ed.2d 824 (1984); King v. Ponte, 717 F.2d 635 (CA1 1983) (prior
inconsistent statements of Government witness); see also United States v.
Oxman, 740 F.2d 1298, 1311 (CA3 1984) (addressing "disturbing"
prosecutorial tendency to withhold information because of later opportunity to
argue, with the benefit of hindsight, that information was not "material"), cert.
pending sub nom. United States v. Pflaumer, No. 84-1033. The result is to veer
sharply away from the basic notion that the fairness of a trial increases with the
amount of existing favorable evidence to which the defendant has access, and to
disavow the ideal of full disclosure.

75

The Court's definition poses other, serious problems. Besides legitimizing the
nondisclosure of clearly favorable evidence, the standard set out by the Court
also asks the prosecutor to predict what effect various pieces of evidence will
have on the trial. He must evaluate his case and the case of the defendantof

which he presumably knows very littleand perform the impossible task of

deciding whether a certain piece of information will have a significant impact
on the trial, bearing in mind that a defendant will later shoulder the heavy
burden of proving how it would have affected the outcome. At best, this
standard places on the prosecutor a responsibility to speculate, at times without
foundation, since the prosecutor will not normally know what strategy the
defense will pursue or what evidence the defense will find useful. At worst, the
standard invites a prosecutor, whose interests are conflicting, to gamble, to play
the odds, and to take a chance that evidence will later turn out not to have been
potentially dispositive. One Court of Appeals has recently vented its frustration
at these unfortunate consequences:
76

"It seems clear that those tests [for materiality] have a tendency to encourage
unilateral decision-making by prosecutors with respect to disclosure. . . . [T]he
root of the problem is the prosecutor's tendency to adopt a retrospective view of
materiality. Before trial, the prosecutor cannot know whether, after trial,
particular evidence will prove to have been material. . . . Following their
adversarial instincts, some prosecutors have determined unilaterally that
evidence will not be material and, often in good faith, have disclosed it neither
to defense counsel nor to the court. If and when the evidence emerges after
trial, the prosecutor can always argue, with the benefit of hindsight, that it was
not material." United States v. Oxman, supra, at 1310.

77

The Court's standard also encourages the prosecutor to assume the role of the
jury, and to decide whether certain evidence will make a difference. In our
system of justice, that decision properly and wholly belongs to the jury. The
prosecutor, convinced of the guilt of the defendant and of the truthfulness of his
witnesses, may all too easily view as irrelevant or unpersuasive evidence that
draws his own judgments into question. Accordingly he will decide the
evidence need not be disclosed. But the ideally neutral trier of fact, who
approaches the case from a wholly different perspective, is by the prosecutor's
decision denied the opportunity to consider the evidence. The reviewing court,
faced with a verdict of guilty, evidence to support that verdict, and pressures,
again understandable, to finalize criminal judgments, is in little better position
to review the withheld evidence than the prosecutor.

78

I simply cannot agree with the Court that the due process right to favorable
evidence recognized in Brady was intended to become entangled in
prosecutorial determinations of the likelihood that particular information would
affect the outcome of trial. Almost a decade of lower court practice with Agurs
convinces me that courts and prosecutors have come to pay "too much
deference to the federal common law policy of discouraging discovery in

criminal cases, and too little regard to due process of law for defendants."
United States v. Oxman, supra, at 1310-1311. Apparently anxious to assure that
reversals are handed out sparingly, the Court has defined a rigorous test of
materiality. Eager to apply the "materiality" standard at the pretrial stage, as the
Court permits them to do, prosecutors lose sight of the basic principles
underlying the doctrine. I would return to the original theory and promise of
Brady and reassert the duty of the prosecutor to disclose all evidence in his files
that might reasonably be considered favorable to the defendant's case. No
prosecutor can know prior to trial whether such evidence will be of
consequence at trial; the mere fact that it might be, however, suffices to
mandate disclosure.5
D
79

In so saying, I recognize that a failure to divulge favorable information should

not result in reversal in all cases. It may be that a conviction should be affirmed
on appeal despite the prosecutor's failure to disclose evidence that reasonably
might have been deemed potentially favorable prior to trial. The state's interest
in nondisclosure at trial is minimal, and should therefore yield to the readily
apparent benefit that full disclosure would convey to the search for truth. After
trial, however, the benefits of disclosure may at times be tempered by the
state's legitimate desire to avoid retrial when error has been harmless. However,
in making the determination of harmlessness, I would apply our normal
constitutional error test and reverse unless it is clear beyond a reasonable doubt
that the withheld evidence would not have affected the outcome of the trial. See
Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); see
also Agurs, 427 U.S., at 119-120, 96 S.Ct., at 2405 (MARSHALL, J.,
dissenting).6

80

Any rule other than automatic reversal, of course, dilutes the Brady right to
some extent and offers the prosecutor an incentive not to turn over all
information. In practical effect, it might be argued, there is little difference
between the rule I proposethat a prosecutor must disclose all favorable
evidence in his files, subject to harmless-error reviewand the rule the Court
adoptsthat the prosecutor must disclose only the favorable information that
might affect the outcome of the trial. According to this argument, if a
constitutional right to all favorable evidence leads to reversal only when the
withheld evidence might have affected the outcome of the trial, the result will
be the same as with a constitutional right only to evidence that will affect the
trial outcome. See Capra, Access to Exculpatory Evidence: Avoiding the Agurs
Problems of Prosecutorial Discretion and Retrospective Review, 53
Ford.L.Rev. 391, 409-410, n. 117 (1984). For several reasons, however, I

disagree. First, I have faith that a prosecutor would treat a rule requiring
disclosure of all information of a certain kind differently from a rule requiring
disclosure only of some of that information. Second, persistent or egregious
failure to comply with the constitutional duty could lead to disciplinary actions
by the courts. Third, the standard of harmlessness I adopt is more protective of
the defendant than that chosen by the Court, placing the burden on the
prosecutor, rather than the defendant, to prove the harmlessness of his actions.
It would be a foolish prosecutor who gambled too glibly with that standard of
review. And finally, it is unrealistic to ignore the fact that at the appellate stage
the state has an interest in avoiding retrial where the error is harmless beyond a
reasonable doubt. That interest counsels against requiring a new trial in every
case.
81

Thus, while I believe that some review for harmlessness is in order, I disagree
with the Court's standard, even were it merely a standard for review and not a
definition of "materiality." First, I see no significant difference for truth-seeking
purposes between the Giglio situation and this one; for the same reasons I
believe the result must therefore be the same here as in Giglio, see supra, at
691-692, I also believe the standard for reversal should be the same. The
defendant's entitlement to a new trial ought to be no different in the two cases,
and the burden he faces on appeal should also be the same. Giglio remains the
law for a class of cases, and I reaffirm my belief that the same standard applies
to this case as well. See Agurs, 427 U.S., at 119-120, 96 S.Ct., at 2405
(MARSHALL, J., dissenting).

82

Second, only a strict appellate standard, which places on the prosecutor a

burden to defend his decisions, will remove the incentive to gamble on a
finding of harmlessness. Any lesser standard, and especially one in which the
defendant bears the burden of proof, provides the prosecutor with ample room
to withhold favorable evidence, and provides a reviewing court with a simple
means to affirm whenever in its view the correct result was reached. This is
especially true given the speculative nature of retrospective review:

83

"The appellate court's review of 'what might have been' is extremely difficult in
the context of an adversarial system. Evidence is not introduced in a vacuum;
rather, it is built upon. The absence of certain evidence may thus affect the
usefulness, and hence the use, of other evidence to which defense counsel does
have access. Indeed, the absence of a piece of evidence may affect the entire
trial strategy of defense counsel." Capra, supra, at 412.

84

As a consequence, the appellate court no less than the prosecutor must

substitute its judgment for that of the trier of fact under an inherently slippery

test. Given such factors as a reviewing court's natural inclination to affirm a

judgment that appears "correct" and that court's obvious inability to know what
a jury ever will do, only a strict and narrow test that places the burden of proof
on the prosecutor will begin to prevent affirmances in cases in which the
withheld evidence might have had an impact.

85

Even under the most protective standard of review, however, courts must be
careful to focus on the nature of the evidence that was not made available to the
defendant and not simply on the quantity of the evidence against the defendant
separate from the withheld evidence. Otherwise, as the Court today
acknowledges, the reviewing court risks overlooking the fact that a failure to
disclose has a direct effect on the entire course of trial.

86

Without doubt, defense counsel develops his trial strategy based on the
available evidence. A missing piece of information may well preclude the
attorney from pursuing a strategy that potentially would be effective. His client
might consequently be convicted even though nondisclosed information might
have offered an additional or alternative defense, if not pure exculpation. Under
such circumstances, a reviewing court must be sure not to focus on the amount
of evidence supporting the verdict to determine whether the trier of fact
reasonably would reach the same conclusion. Instead, the court must decide
whether the prosecution has shown beyond a reasonable doubt that the new
evidence, if disclosed and developed by reasonably competent counsel, would
not have affected the outcome of trial.7

87

In this case, it is readily apparent that the undisclosed information would have
had an impact on the defense presented at trial, and perhaps on the judgment.
Counsel for Bagley argued to the trial judge that the Government's two key
witnesses had fabricated their accounts of the drug distributions, but the trial
judge rejected the argument for lack of any evidence of motive. See supra, at
690. These key witnesses, it turned out, were each to receive monetary rewards
whose size was contingent on the usefulness of their assistance. These rewards
"served only to strengthen any incentive to testify falsely in order to secure a
conviction." Ante, at 683. To my mind, no more need be said; this
nondisclosure could not have been harmless. I would affirm the judgment of the
Court of Appeals.

88

Justice STEVENS, dissenting.

89

This case involves a straightforward application of the rule announced in Brady

v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), a case

involving nondisclosure of material evidence by the prosecution in response to

a specific request from the defense. I agree that the Court of Appeals
misdescribed that rule, see ante, at 674-678, but I respectfully dissent from the
Court's unwarranted decision to rewrite the rule itself.
90

As the Court correctly notes at the outset of its opinion, ante, at 669, the
holding in Brady was 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." 373 U.S., at 87, 83 S.Ct., at 1196. We
noted in United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49
L.Ed.2d 342 (1976), that the rule of Brady arguably might apply in three
different situations involving the discovery, after trial, of evidence that had
been known prior to trial to the prosecution but not to the defense. Our holding
in Agurs was that the Brady rule applies in two of the situations, but not in the
third.

91

The two situations in which the rule applies are those demonstrating the
prosecution's knowing use of perjured testimony, exemplified by Mooney v.
Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935), and the
prosecution's suppression of favorable evidence specifically requested by the
defendant, exemplified by Brady itself. In both situations, the prosecution's
deliberate nondisclosure constitutes constitutional errorthe conviction must
be set aside if the suppressed or perjured evidence was "material" and there was
"any reasonable likelihood" that it "could have affected" the outcome of the
trial. 427 U.S., at 103, 96 S.Ct., at 2397. 1 See Brady, supra, 373 U.S., at 88, 83
S.Ct., at 1197 ("would tend to exculpate"); accord, United States v. ValenzuelaBernal, 458 U.S. 858, 874, 102 S.Ct. 3440, 3450, 73 L.Ed.2d 1193 (1982)
("reasonable likelihood"); Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct.
763, 766, 31 L.Ed.2d 104 (1972) ("reasonable likelihood"); Napue v. Illinois,
360 U.S. 264, 272, 79 S.Ct. 1173, 1178, 3 L.Ed.2d 1217 (1959) ("may have had
an effect on the outcome"). The combination of willful prosecutorial
suppression of evidence and, "more importantly," the potential "corruption of
the truth-seeking function of the trial process" requires that result. 427 U.S., at
104, 106, 96 S.Ct., at 2397, 2398. 2

92

In Brady, the suppressed confession was inadmissible as to guilt and "could not
have affected the outcome" on that issue. 427 U.S., at 106, 96 S.Ct., at 2398.
However, the evidence "could have affected Brady's punishment," and was,
therefore, "material on the latter issue but not on the former." Ibid. Materiality
was thus used to describe admissible evidence that "could have affected" a
dispositive issue in the trial.

93

The question in Agurs was whether the Brady rule should be extended, to cover
a case in which there had been neither perjury nor a specific requestthat is,
whether the prosecution has some constitutional duty to search its files and
disclose automatically, or in response to a general request, all evidence that
"might have helped the defense, or might have affected the outcome." 427 U.S.,
at 110, 96 S.Ct., at 2400.3 Such evidence would, of course, be covered by the
Brady formulation if it were specifically requested. We noted in Agurs,
however, that because there had been no specific defense request for the laterdiscovered evidence, there was no notice to the prosecution that the defense did
not already have that evidence or that it considered the evidence to be of
particular value. 427 U.S., at 106-107, 96 S.Ct., at 2398-2399. Consequently,
we stated that in the absence of a request the prosecution has a constitutional
duty to volunteer only "obviously exculpatory . . . evidence." Id., at 107, 96
S.Ct., at 2399. Because this constitutional duty to disclose is different from the
duty described in Brady, it is not surprising that we developed a different
standard of materiality in the Agurs context. Necessarily describing the
"inevitably imprecise" standard in terms appropriate to post-trial review, we
held that no constitutional violation occurs in the absence of a specific request
unless "the omitted evidence creates a reasonable doubt that did not otherwise
exist." Id., at 108, 112, 96 S.Ct., at 2399, 2401. 4

94

What the Court ignores with regard to Agurs is that its analysis was restricted
entirely to the general or no-request context.5 The "standard of materiality" we
fashioned for the purpose of determining whether a prosecutor's failure to
volunteer exculpatory evidence amounted to constitutional error was and is
unnecessary with regard to the two categories of prosecutorial suppression
already covered by the Brady rule. The specific situation in Agurs, as well as
the circumstances of United States v. Valenzuela-Bernal, 458 U.S. 858, 102
S.Ct. 3440, 73 L.Ed.2d 1193 (1982) and Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), simply falls "outside the Brady
context." Ante, at 3383.

95

But the Brady rule itself unquestionably applies to this case, because the
Government failed to disclose favorable evidence that was clearly responsive to
the defendant's specific request. Bagley's conviction therefore must be set aside
if the suppressed evidence was "material"and it obviously was, see n. 1,
supra and if there is "any reasonable likelihood" that it could have affected
the judgment of the trier of fact. Our choice, therefore, should be merely
whether to affirm for the reasons stated in Part I of Justice MARSHALL's
dissent, or to remand to the Court of Appeals for further review under the
standard stated in Brady. I would follow the latter course, not because I
disagree with Justice MARSHALL's analysis of the record, but because I do not

believe this Court should perform the task of reviewing trial transcripts in the
first instance. See United States v. Hasting, 461 U.S. 499, 516-517, 103 S.Ct.
1974, 1984-1985, 76 L.Ed.2d 96 (1983) (STEVENS, J., concurring in
judgment). I am confident that the Court of Appeals would reach the
appropriate result if it applied the proper standard.
96

The Court, however, today sets out a reformulation of the Brady rule in which I
have no such confidence. Even though the prosecution suppressed evidence that
was specifically requested, apparently the Court of Appeals may now reverse
only if there is a "reasonable probability" that the suppressed evidence "would"
have altered "the result of the [trial]." Ante, at 682, 684. According to the Court
this single rule is "sufficiently flexible" to cover specific as well as general or
no-request instances of nondisclosure, ante, at 682, because, at least in the view
of Justice BLACKMUN and Justice O'CONNOR, a reviewing court can
"consider directly" under this standard the more threatening effect that
nondisclosure in response to a specific defense request will generally have on
the truth-seeking function of the adversary process. Ante, at 683 (opinion of
BLACKMUN, J.).6

97

I cannot agree. The Court's approach stretches the concept of "materiality"

beyond any recognizable scope, transforming it from merely an evidentiary
concept as used in Brady and Agurs, which required that material evidence be
admissible and probative of guilt or innocence in the context of a specific
request, into a result-focused standard that seems to include an independent
weight in favor of affirming convictions despite evidentiary suppression.
Evidence favorable to an accused and relevant to the dispositive issue of guilt
apparently may still be found not "material," and hence suppressible by
prosecutors prior to trial, unless there is a reasonable probability that its use
would result in an acquittal. Justice MARSHALL rightly criticizes the
incentives such a standard creates for prosecutors "to gamble, to play the odds,
and to take a chance that evidence will later turn out not to have been
potentially dispositive." Ante, at 701.

98

Moreover, the Court's analysis reduces the significance of deliberate

prosecutorial suppression of potentially exculpatory evidence to that merely of
one of numerous factors that "may" be considered by a reviewing court. Ante,
at 683 (opinion of BLACKMUN, J.). This is not faithful to our statement in
Agurs that "[w]hen the prosecutor receives a specific and relevant request, the
failure to make any response is seldom, if ever, excusable." 427 U.S., at 106,
96 S.Ct., at 2398. Such suppression is far more serious than mere nondisclosure
of evidence in which the defense has expressed no particular interest. A
reviewing court should attach great significance to silence in the face of a

specific request, when responsive evidence is later shown to have been in the
Government's possession. Such silence actively misleads in the same way as
would an affirmative representation that exculpatory evidence does not exist
when, in fact, it does (i.e., perjury)indeed, the two situations are aptly
described as "sides of a single coin." Babcock, Fair Play: Evidence Favorable to
an Accused and Effective Assistance of Counsel, 34 Stan.L.Rev. 1133, 1151
(1982).
99

Accordingly, although the judgment of the Court of Appeals should be vacated

and the case should be remanded for further proceedings, I disagree with the
Court's statement of the correct standard to be applied. I therefore respectfully
dissent from the judgment that the case be remanded for determination under
the Court's new standard.

In addition, 10(b) of the motion requested "[p]romises or representations

made to any persons the government intends to call as witnesses at trial,
including but not limited to promises of no prosecution, immunity, lesser
sentence, etc.," and 11 requested "[a]ll information which would establish the
reliability of the Milwaukee Railroad Employees in this case, whose testimony
formed the basis for the search warrant." App. 18-19.

The Jencks Act, 18 U.S.C. 3500, requires the prosecutor to disclose, after
direct examination of a Government witness and on the defendant's motion, any
statement of the witness in the Government's possession that relates to the
subject matter of the witness' testimony.

Brief for United States 3, quoting Memorandum of Points and Authorities in

Support of Pet. for Habeas Corpus, CV-3592-RJK(M) (CD Cal.) Exhibits 1-9.

The Assistant United States Attorney who prosecuted respondent stated in

stipulated testimony that he had not known that the contracts existed and that he
would have furnished them to respondent had he known of them. See App. to
Pet. for Cert. 13a.

The Magistrate found, too, that ATF paid O'Connor and Mitchell, respectively,
$90 and $80 in April and May 1977 before trial, but concluded that these
payments were intended to reimburse O'Connor and Mitchell for expenses, and
would not have provided a basis for impeaching O'Connor's and Mitchell's trial
testimony. The District Court adopted this finding and conclusion. Id., at 7a,
13a.

By requiring the prosecutor to assist the defense in making its case, the Brady

rule represents a limited departure from a pure adversary model. The Court has
recognized, however, that the prosecutor's role transcends that of an adversary:
he "is the representative not of an ordinary party to a controversy, but of a
sovereignty . . . whose interest . . . in a criminal prosecution is not that it shall
win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78,
88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). See Brady v. Maryland, 373 U.S.,
at 87-88, 83 S.Ct., at 1196-1197.
7

See United States v. Agurs, 427 U.S. 97, 106, 111, 96 S.Ct. 2392, 2398, 2401,
49 L.Ed.2d 342 (1976); Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562,
2568, 33 L.Ed.2d 706 (1972). See also California v. Trombetta, 467 U.S. 479,
488, n. 8, 104 S.Ct. 2528, 2534, n. 8, 81 L.Ed.2d 413 (1984). An interpretation
of Brady to create a broad, constitutionally required right of discovery "would
entirely alter the character and balance of our present systems of criminal
justice." Giles v. Maryland, 386 U.S. 66, 117, 87 S.Ct. 793, 818, 17 L.Ed.2d
737 (1967) (dissenting opinion). Furthermore, a rule that the prosecutor
commits error by any failure to disclose evidence favorable to the accused, no
matter how insignificant, would impose an impossible burden on the prosecutor
and would undermine the interest in the finality of judgments.
In fact, the Brady rule has its roots in a series of cases dealing with convictions
based on the prosecution's knowing use of perjured testimony. In Mooney v.
Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935), the Court
established the rule that the knowing use by a state prosecutor of perjured
testimony to obtain a conviction and the deliberate suppression of evidence that
would have impeached and refuted the testimony constitutes a denial of due
process. The Court reasoned that "a deliberate deception of court and jury by
the presentation of testimony known to be perjured" is inconsistent with "the
rudimentary demands of justice." Id., at 112, 55 S.Ct., at 341. The Court
reaffirmed this principle in broader terms in Pyle v. Kansas, 317 U.S. 213, 63
S.Ct. 177, 87 L.Ed. 214 (1942), where it held that allegations that the
prosecutor had deliberately suppressed evidence favorable to the accused and
had knowingly used perjured testimony were sufficient to charge a due process
violation.
The Court again reaffirmed this principle in Napue v. Illinois, 360 U.S. 264, 79
S.Ct. 1173, 3 L.Ed.2d 1217 (1959). In Napue, the principal witness for the
prosecution falsely testified that he had been promised no consideration for his
testimony. The Court held that the knowing use of false testimony to obtain a
conviction violates due process regardless of whether the prosecutor solicited
the false testimony or merely allowed it to go uncorrected when it appeared.
The Court explained that the principle that a State may not knowingly use false
testimony to obtain a convictioneven false testimony that goes only to the

credibility of the witnessis "implicit in any concept of ordered liberty." Id., at

269, 79 S.Ct., at 1177. Finally, the Court held that it was not bound by the state
court's determination that the false testimony "could not in any reasonable
likelihood have affected the judgment of the jury." Id., at 271, 79 S.Ct., at 1178.
The Court conducted its own independent examination of the record and
concluded that the false testimony "may have had an effect on the outcome of
the trial." Id., at 272, 79 S.Ct., at 1178. Accordingly, the Court reversed the
judgment of conviction.
9

The rule that a conviction obtained by the knowing use of perjured testimony
must be set aside if there is any reasonable likelihood that the false testimony
could have affected the jury's verdict derives from Napue v. Illinois, 360 U.S. at
271, 79 S.Ct., at 1178. See n. 8, supra. See also Giglio v. United States, 405
U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972) (quoting Napue, 360
U.S., at 271, 79 S.Ct., at 1178). Napue antedated Chapman v. California, 386
U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), where the "harmless beyond a
reasonable doubt" standard was established. The Court in Chapman noted that
there was little, if any, difference between a rule formulated, as in Napue, in
terms of " 'whether there is a reasonable possibility that the evidence
complained of might have contributed to the conviction,' " and a rule "
'requiring the beneficiary of a constitutional error to prove beyond a reasonable
doubt that the error complained of did not contribute to the verdict obtained.' "
386 U.S., at 24, 87 S.Ct., at 828 (quoting Fahy v. Connecticut, 375 U.S. 85, 8687, 84 S.Ct. 229, 230-231, 11 L.Ed.2d 171 (1963)). It is therefore clear, as
indeed the Government concedes, see Brief for United States 20, and 36-38,
that this Court's precedents indicate that the standard of review applicable to
the knowing use of perjured testimony is equivalent to the Chapman harmlesserror standard.

10

This is true only if the nondisclosure is treated as error subject to harmless-error

review, and not if the nondisclosure is treated as error only if the evidence is
material under a not "harmless beyond a reasonable doubt" standard.

11

The Court in Agurs identified Brady as a case in which specific information

was requested by the defense. 427 U.S., at 106, 96 S.Ct., at 2398. The request
in Brady was for the extrajudicial statements of Brady's accomplice. See 373
U.S., at 84, 83 S.Ct., at 1195.

12

The Court in Agurs noted: "A fair analysis of the holding in Brady indicates
that implicit in the requirement of materiality is a concern that the suppressed
evidence might have affected the outcome of the trial." 427 U.S., at 104, 96
S.Ct., at 2397. Since the Agurs Court identified Brady as a "specific request"
case, see n. 11, supra, this language might be taken as indicating the standard of

materiality applicable in such a case. It is clear, however, that the language

merely explains the meaning of the term "materiality." It does not establish a
standard of materiality because it does not indicate what quantum of likelihood
there must be that the undisclosed evidence would have affected the outcome.
13

In particular, the Court explained in Strickland: "When a defendant challenges a

conviction, the question is whether there is a reasonable probability that, absent
the errors, the factfinder would have had a reasonable doubt respecting guilt."
466 U.S., at 695, 104 S.Ct., at 2068-2069.

As early as 1807, this Court made clear that prior to trial a defendant must have
access to impeachment evidence in the Government's possession. Addressing
defendant Aaron Burr's claim that he should have access to the letter of General
Wilkinson, a key witness against Burr in his trial for treason, Chief Justice
Marshall wrote:
"The application of that letter to the case is shown by the terms in which the
communication was made. It is a statement of the conduct of the accused made
by the person who is declared to be the essential witness against him. The order
for producing this letter is opposed:
"First, because it is not material to the defense. It is a principle, universally
acknowledged, that a party has a right to oppose to the testimony of any witness
against him, the declarations which that witness has made at other times on the
same subject. If he possesses this right, he must bring forward proof of those
declarations. This proof must be obtained before he knows positively what the
witness will say; for if he waits until the witness has been heard at the trial, it is
too late to meet him with his former declarations. Those former declarations,
therefore, constitute a mass of testimony, which a party has a right to obtain by
way of precaution, and the positive necessity of which can only be decided at
the trial." United States v. Burr, 25 F.Cas. 30, 36 (No. 14,692d) (CC Va. 1807).

See Fortas, The Fifth Amendment: Nemo Tenetur Prodere Seipsum, 25

Clev.B.A.J. 91, 98 (1954) ("The state and [the defendant] could meet, as the
law contemplates, in adversary trial, as equalsstrength against strength,
resource against resource, argument against argument"); see also Babcock, Fair
Play: Evidence Favorable to an Accused and Effective Assistance of Counsel,
34 Stan.L.Rev. 1133, 1142-1145 (1982) (discussing challenge Brady poses to
traditional adversary model).

Indeed, this Court's recent decision stating a stringent standard for

demonstrating ineffective assistance of counsel makes an effective Brady right
even more crucial. Without a real guarantee of effective counsel, the relative
abilities of the state and the defendant become even more skewed, and the need

for a minimal guarantee of access to potentially favorable information becomes

significantly greater. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984); id., at 712-715, 104 S.Ct., at 2077-2079
(MARSHALL, J., dissenting); Babcock, supra, at 1163-1174 (discussing the
interplay between the right to Brady material and the right to effective
assistance of counsel).
4

See Newman, 44 F.R.D., at 499 (describing the "serious" problem of witness

intimidation that arises from prosecutor's disclosure of witnesses). But see
Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth?, 1963
Wash.U.L.Q. 279, 289-290 (disputing a similar argument).

Brady not only stated the rule that suppression by the prosecution of evidence
favorable to the defendant "violates due process where the evidence is material
either to guilt or to punishment," 373 U.S., at 87, 83 S.Ct., at 1196, but also
observed that two decisions of the Court of Appeals for the Third Circuit "state
the correct constitutional rule." Id., at 86, 83 S.Ct., at 1196. Neither of those
decisions limited the right only to evidence that is "material" within the
meaning that the Court today articulates. Instead, they provide strong evidence
that Brady might have used the word in its evidentiary sense, to mean,
essentially, germane to the points at issue.
In United States ex rel. Almeida v. Baldi, 195 F.2d 815 (CA3 1952), cert.
denied, 345 U.S. 904, 73 S.Ct. 639, 97 L.Ed. 1341 (1953), the appeals court
granted a petition for habeas corpus in a case in which the State had withheld
from the defendant evidence that might have mitigated his punishment. After
describing the withheld evidence as "relevant" and "pertinent," 195 F.2d, at
819, the court concluded: "We think that the conduct of the Commonwealth as
outlined in the instant case is in conflict with our fundamental principles of
liberty and justice. The suppression of evidence favorable to Almeida was a
denial of due process." Id., at 820. Similarly, in United States ex rel. Thompson
v. Dye, 221 F.2d 763, 765 (CA3), cert. denied, 350 U.S. 875, 76 S.Ct. 120, 100
L.Ed. 773 (1955), the District Court had denied a petition for habeas corpus
after finding that certain evidence of defendant's drunkenness at the time of the
offense in question was not "vital" to the defense and did not require disclosure.
123 F.Supp. 759, 762 (WD Pa.1954). The Court of Appeals reversed, observing
that whether or not the jury ultimately would credit the evidence at issue, the
evidence was substantial and the State's failure to disclose it cannot "be held as
a matter of law to be unimportant to the defense here." 221 F.2d, at 767.
It is clear that the term "material" has an evidentiary meaning quite distinct
from that which the Court attributes to it. Judge Weinstein, for example, defines
as synonymous the words "ultimate fact," "operative fact," "material fact," and

"consequential fact," each of which, he states, means "a 'fact that is of

consequence to the determination of the action.' " 1 J. Weinstein & M. Berger,
Weinstein's Evidence 401[03], n. 1 (1982) (quoting Fed. Rule Evid. 401).
Similarly, another treatise on evidence explains that there are two components
to relevance materiality and probative value. "Materiality looks to the relation
between the propositions for which the evidence is offered and the issues in the
case. If the evidence is offered to help prove a proposition which is not a matter
in issue, the evidence is immaterial." E. Cleary, McCormick on Evidence 185
(3d ed. 1984). "Probative value" addresses the tendency of the evidence to
establish a "material" proposition. Ibid. See also 1 J. Wigmore, Evidence 2 (P.
Tillers rev. 1982). There is nothing in Brady to suggest that the Court intended
anything other than a rule that favorable evidence need only relate to a
proposition at issue in the case in order to merit disclosure.
Even if the Court did not use the term "material" simply to refer to favorable
evidence that might be relevant, however, I still believe that due process
requires that prosecutors have the duty to disclose all such evidence. The
inherent difficulty in applying, prior to trial, a definition that relates to the
outcome of the trial, and that is based on speculation and not knowledge, means
that a considerable amount of potentially consequential material might slip
through the Court's standard. Given the experience of the past decade with
Agurs, and the practical problem that inevitably exists because the evidence
must be disclosed prior to trial to be of any use, I can only conclude that all
potentially favorable evidence must be disclosed. Of course, I agree with courts
that have allowed exceptions to this rule on a showing of exigent circumstances
based on security and law enforcement needs.
6

In a case of deliberate prosecutorial misconduct, automatic reversal might well

be proper. Certain kinds of constitutional error so infect the system of justice as
to require reversal in all cases, such as discrimination in jury selection. See,
e.g., Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972). A
deliberate effort of the prosecutor to undermine the search for truth clearly is in
the category of offenses antithetical to our most basic vision of the role of the
state in the criminal process.

For example, in United States ex rel. Butler v. Maroney, 319 F.2d 622 (CA3
1963), the defendant was convicted of first-degree murder. Trial counsel based
his defense on temporary insanity at the time of the murder. During trial,
testimony suggested that the shooting might have been the accidental result of a
struggle, but defense counsel did not develop that defense. It later turned out
that an eyewitness to the shooting had given police a statement that the victim
and Butler had struggled prior to the murder. If defense counsel had known
before trial what the eyewitness had seen, he might have relied on an additional

defense, and he might have emphasized the struggle. See Note, The
Prosecutor's Constitutional
Duty to Reveal Evidence to the Defendant, 74 Yale L.J. 136, 145 (1964).
Unless the same information already was known to counsel before trial, the
failure to disclose evidence of that kind simply cannot be harmless because
reasonably competent counsel might have utilized it to yield a different
outcome. No matter how overwhelming the evidence that Butler committed the
murder, he had a right to go before a trier of fact and present his best available
defense.
Similarly, in Ashley v. Texas, 319 F.2d 80 (CA5), cert. denied, 375 U.S. 931, 84
S.Ct. 331, 11 L.Ed.2d 263 (1963), the defendant was sentenced to death for
murder. The prosecutor disclosed to the defense a psychiatrist's report
indicating that the defendant was sane, but he failed to disclose the reports of a
psychiatrist and a psychologist indicating that the defendant was insane. The
nondisclosed information did not relate to the trial defense of self-defense. But
the failure to disclose the evidence clearly prevented defense counsel from
developing the possibly dispositive defense that he might have developed
through further psychiatric examinations and presentation at trial. The
nondisclosed evidence obviously threw off the entire course of trial
preparation, and a new trial was in order. In such a case, there simply is no
need to considerin light of the evidence that actually was presented and the
quantity of evidence to support the verdict returnedthe possible effect of the
information on the particular jury that heard the case. Indeed, to make such an
evaluation would be to substitute the reviewing court's judgment of the facts,
including the previously undisclosed evidence, for that of the jury, and to do so
without the benefit of competent counsel's development of the information.
See also Field, Assessing the Harmlessness of Federal Constitutional ErrorA
Process in Need of a Rationale, 125 U.Pa.L.Rev. 15 (1976) (discussing
application of harmless-error test).
1

I do not agree with the Court's reference to the "constitutional error, if any, in
this case," see ante, at 678 (emphasis added), because I believe a violation of
the Brady rule is by definition constitutional error. Cf. United States v. Agurs,
427 U.S., at 112, 96 S.Ct., at 2401 (rejecting rule making "every nondisclosure
. . . automatic error" outside the Brady specific request or perjury contexts). As
written, the Brady rule states that the Due Process Clause is violated when
favorable evidence is not turned over "upon request" and "the evidence is
material either to guilt or punishment." Brady v. Maryland, 373 U.S., at 87, 83
S.Ct., at 1196. As JUSTICE MARSHALL's explication of the record in this
case demonstrates, ante, at 685-692, the suppressed evidence here was not only

favorable to Bagley,
but also unquestionably material to the issue of his guilt or innocence. The two
witnesses who had signed the undisclosed "Contract[s] for Purchase of
Information" were the only trial witnesses as to the two distribution counts on
which Bagley was convicted. On cross-examination defense counsel attempted
to undercut the witnesses' credibility, obviously a central issue, but had little
factual basis for so doing. When defense counsel suggested a lack of credibility
during final argument in the bench trial, the trial judge demurred, because "I
really did not get the impression at all that either one or both of these men were
trying at least in court here to make a case against the defendant." A finding
that evidence showing that the witnesses in fact had a "direct, personal stake in
respondent's conviction," ante, at 683, was nevertheless not "material" would
be egregiously erroneous under any standard.
2

"A prosecution that withholds evidence on demand of an accused which, if

made available, would tend to exculpate him or reduce the penalty helps shape
a trial that bears heavily on the defendant. That casts the prosecutor in the role
of an architect of a proceeding that does not comport with standards of justice. .
. ." Brady, supra, 373 U.S., at 87-88, 83 S.Ct., at 1196-1197.

"[W]e conclude that there is no significant difference between cases in which

there has been merely a general request for exculpatory matter and cases, like
the one we must now decide, in which there has been no request at all. . . .
"We now consider whether the prosecutor has any constitutional duty to
volunteer exculpatory matter to the defense, and if so, what standard of
materiality gives rise to that duty." 427 U.S., at 107, 96 S.Ct., at 2399.

"The proper standard of materiality must reflect our overriding concern with the
justice of the finding of guilt. Such a finding is permissible only if supported by
evidence establishing guilt beyond a reasonable doubt. It necessarily follows
that if the omitted evidence creates a reasonable doubt that did not otherwise
exist, constitutional error has been committed." Id., at 112, 96 S.Ct., at 2401
(footnote omitted).
We also held in Agurs that when no request for particular information is made,
post-trial determination of whether a failure voluntarily to disclose exculpatory
evidence amounts to constitutional error depends on the "character of the
evidence, not the character of the prosecutor." Id., at 110, 96 S.Ct., at 2400.
Nevertheless, implicitly acknowledging the broad discretion that trial and
appellate courts must have to ensure fairness in this area, we noted that "the
prudent prosecutor will resolve doubtful questions in favor of disclosure." Id.,
at 108, 96 S.Ct., at 2399. Finally, we noted that the post-trial determination of

reasonable doubt will vary even in the no-request context, depending on all the
circumstances of each case. For example, "if the verdict is already of
questionable validity, additional evidence of relatively minor importance might
be sufficient to create a reasonable doubt." Id., at 113, 96 S.Ct., at 2402.
5

See ante, at 678 ("Our starting point is the framework for evaluating the
materiality of Brady evidence established in United States v. Agurs "); ante, at
681 (referring generally to "the Agurs standard for the materiality of
undisclosed evidence"); ante, at 700 (MARSHALL, J., dissenting) (describing
Agurs as stating a general rule that "there is no constitutional duty to disclose
evidence unless nondisclosure would have a certain impact on the trial"). But
see Babcock, Fair Play: Evidence Favorable to an Accused and Effective
Assistance of Counsel, 34 Stan.L.Rev. 1133, 1148 (1982) (Agurs
"distinguished" between no-request situations and the other two Brady contexts
"where a pro-defense standard . . . would continue").

I of course agree with Justice BLACKMUN, ante, at 679-680, n. 9, and 684,

and Justice MARSHALL, ante, at 706, that our long line of precedents
establishing the "reasonable likelihood" standard for use of perjured testimony
remains intact. I also note that the Court plainly envisions that reversal of
Bagley's conviction would be possible on remand even under the new standard
formulated today for specific-request cases. See ante, at 684.