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Virginia Supreme Court Applies Brady Rule

In the April 18, 2013 decision in Commonwealth v. Tuma, Mr. Tuma was charged with various counts, including taking indecent liberties with a child and aggravated sexual battery. Authorities taped an interview between investigators and the child, and the tape may have contained evidence favorable to Mr. Tuma. Prosecutors withheld the tape, and Mr. Tuma’s Virginia criminal defense attorney was not given an opportunity to hear the tape until trial had already begun. The tape was never admitted into evidence, Mr. Tuma was convicted and subsequently appealed. 

Brady rule 

Mr. Tuma’s appeal was based on the Brady rule that prosecutors have a duty to turn over certain evidence to the defense, even if such evidence is not requested: 

  • The prosecutor must have suppressed the evidence, irrespective of bad faith.
  • The evidence must be favorable to the accused — exculpatory or impeaching.
  • The evidence must be material — if the evidence was introduced, the trial’s outcome would have been different. 

The prosecutor admitted that the tape contained impeachment evidence that may have been valuable to Mr. Tuma’s defense. The court did not address the issue of materiality, citing the fact that the prosecutor did not legally withhold the evidence. Although Mr. Tuma’s lawyer did not have the tape during pretrial, his attorney did have the opportunity to review the tape once trial began and before the jury began deliberations. The court ruled that there was enough time for Mr. Tuma to review the evidence and that the prosecutors did not withhold the evidence, according to the Brady rule. 

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