In Texas, prosecutorial misconduct is usually framed as either a “Brady” violation or “false evidence” claim.
Either one of these types of claims can theoretically be raised on direct appeal, but in order for the merits of the claims to be considered by the appellate court the trial attorney would have to (1) learn of the misconduct, (2) object to it, and (3) make a record of it by means of a bill of exception or witness voir dire.
As a practical matter, if the record is not made of the alleged misconduct, you can’t raise it on direct appeal, even if you learn of the misconduct immediately after the time to file a motion for new trial expires. This is why defendants raise prosecutorial misconduct more often through an 11.07 writ of habeas corpus.
If you raise prosecutorial misconduct on direct appeal, the record must affirmatively show the misconduct and demonstrate harm. If you raise the issue on an 11.07 writ, you must prove by a preponderance of the evidence that favorable evidence was withheld or false evidence introduced, and its withholding or use contributed to your conviction or punishment.
Since 2009, defendants no longer have to show that the prosecutor intended to introduce perjured or otherwise misleading evidence. In Ex parte Chabot, 300 S.W.3d 768, 771 (Tex. Crim. App. 2009), the Court of Criminal Appeals held that all that matters is that evidence is false and is material to the conviction or punishment.
“False” evidence just means evidence that “gives the jury a false impression.” Yes, that’s the Court of Criminal Appeals’ definition. Totally circular. But what the court means is that the evidence needs to be just generally misleading. For example, if a witness testifies that he doesn’t suffer from auditory hallucinations but it turns out that he was hospitalized for that very malady prior to trial, that’s false evidence. And it doesn’t matter whether the State knew about it or not. Ex part Weinstein, 412 S.W.3d 656, 661 (Tex. Crim. App. 2014).
Because you no longer have to prove the prosecutor was acting in bad faith, it’s really a misnomer to continue to describe a false evidence claim in terms of misconduct. Interestingly, the Court of Criminal Appeals still likes to distinguish between “real” misconduct and a legal false evidence claim, at least in dicta (in their non-binding general discussion of the issue).
The element that an applicant must prove is materiality. “Material” means evidence that was reasonably likely to affect the judgment of the jury. Materiality is not the same as harm (in dicta the Court of Criminal Appeals implies it’s a bit easier to show materiality than it is constitutional harm error, at least that’s how I read the opinions). That definition is generic enough to give judges broad discretion, both at the trial court level (for writ fact finding) and on appeal.
If you file a writ based on false evidence you have to understand your particular burden of proof and know your judge. His or her predilections and biases will be hugely important.
A “Brady Violation” is shorthand for instances where the prosecutor fails to disclose exculpatory evidence. If you go to trial and it turns out the State withheld exculpatory evidence, you can potentially get your conviction reversed. Like false evidence claims, a successful Brady claim depends on the materiality of the evidence. A key fact issue is whether knowledge of exculpatory evidence can be imputed to the prosecutor. For example, if a forensic analyst knows a test is flawed, can that knowledge be extended to the prosecutor in the context of a 11.07 Brady claim? Apparently, that questions remains unanswered. Ex parte Thompson, 584 S.W.3d 874, 875 (Tex. Crim. App. 2019).
Another big question remains unanswered: does the State’s duty to disclose exculpatory evidence extend to plea bargain cases? In other words, if the State does not disclose exculpatory evidence, can the defendant successfully challenge his plea as involuntary? The Court of Criminal Appeals doesn’t know yet.
I have an 11.07 writ case that raises this very issue. We will see how it goes.