United States v. Agurs

It was, as we’ve repeatedly noted before, a Brady case and not a Mooney case.

But because Brady and Mooney are related, albeit distinct, Justice Stevens (who wrote the Agurs majority opinion) briefly discussed Mooney:

The rule of Brady v Maryland, 373 U. S. 83, arguably applies in three quite different situations. Each involves the discovery, after trial, of information which had been known to the prosecution but unknown to the defense.

In the first situation, typified by Mooney v. Holohan, 294 U. S. 103, the undisclosed evidence demonstrates that the prosecution’s case includes perjured testimony and that the prosecution knew, or should have known, of the perjury.[7] In a series of subsequent cases, the Court has consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair,[8] and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.[9] It is this line of cases on which the Court of Appeals placed primary reliance. In those cases the Court has applied a strict standard of materiality, not just because they involve prosecutorial misconduct, but more importantly because they involve a corruption of the truth-seeking function of the trial process. Since this case involves no misconduct, and since there is no reason to question the veracity of any of the prosecution witnesses, the test of materiality followed in the Mooney line of cases is not necessarily applicable to this case.

Let’s put it another way:  the Agurs case says absolutely nothing of any importance about Mooney.  It certainly does not establish that Mooney has a “materiality” requirement because in the highlighted passage it explicitly tells us that everything it is saying about Mooney is dicta.

Mooney was a landmark due process case.  It is not to be limited or qualified by dicta in subsequent cases that are really about something else.  Which Agurs was.  Namely Brady, not Mooney.

Nevertheless, it is one of the ironies of this whole sordid tale that Justice Stevens’ opinion in Agurs  wound up being a significant contributor to the serious confusion around the country on this Brady-Mooney business that we, and we alone it sometimes seems, have had to contend with.  The reason for the irony is that Justice Stevens later wrote very powerful – and in our opinion unarguably correct – dissents in two other cases where Justices who fundamentally disagreed with him capitalized on this Agurs mistake:  United States v. Williams and Albright v. Oliver.

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5 Comments

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5 responses to “United States v. Agurs

  1. Kent

    Well, then you have the scenario of United States v. Bagley, 473 U.S. 667, that muddied the waters even more and threw Agurs under the bus. The prosecution can now just claim ignorance, and even if found to be responsible, the materiality standard shifts to prosecution favor that is nowhere near what prosecution has to prove at time of trial (i.e., guilt beyond a reasonable doubt).

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    • Kent, how are you?

      The point of this and the previous post (which you should read, if you haven’t already) is that the SCOTUS has never limited Mooney, period. It has expounded a number of times on the “materiality” standard, but that is a Brady issue, not a Mooney issue.

      Bagley, like Agurs, like Giglio and like Kyles – is a Brady case, not a Mooney case. Deliberate falsification and use of evidence by the government is a due process violation and the question of materiality doesn’t even arise: if it wasn’t “material”, why did they deliberately falsify?

      Judicial estoppel applies, and it’s called ‘judicial’ estoppel because the idea is to protect the process (embodied by the judge) from being mocked.

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  2. Criminal Law Scholar

    So does Agurs’ “unknown to the defense” requirement apply to Mooney (knowing presentation of false testimony) cases?

    For example, if the prosecution knowingly presents false testimony (or fails to correct testimony that he/she knows is false) but the defense also knows that testimony is false (or has in its possession the documents/evidence to establish that the testimony is false) can there be any due process violation under any of the three categories (of due process violations) described in Agurs?

    If you believe the answer is yes, please cite a case that supports your conclusion.

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    • The short answer to your first question is no, because Agurs did not qualify or limit Mooney by anything, including whether the relevant false testimony was known to the defense.

      I’m afraid you’re missing the point of the post, and conflating Brady with Mooney. In Brady, the touchstone is disclosure to the defense. In Mooney that doesn’t even matter: the rule of Mooney is that the prosecution cannot deliberately use perjury to obtain a conviction. Period.

      A case which supports this conclusion, besides Mooney and its progeny, is Waley v. Johnston, where the threat of FBI agents to fabricate evidence to coerce a defendant into a guilty plea was held to violate the defendant’s right to due process of law.

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    • I should add that in Miller v. Pate the government made exactly that argument- that everyone knew it was paint and not blood- but the argument was rejected. And Miller v Pate is, of course, a significant Mooney case in this context, because it cites Mooney, Pyle and Napue but doesn’t cite Brady, even though as a 1967 decision it post-dates Brady. In other words, Miller proves that Brady cases and Mooney cases are different, even if related.

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