If the assistant DA does not produce something for which you made no request or only a general request, this court will order a new trial or reduction of the verdict whenever the court concludes that there has been a substantial likelihood of a miscarriage of justice.  The test is whether the undisclosed evidence would have been a real factor in the jury's deliberations.

One case and excerpts from two others are below.  Check out your own state opinions to see if these standards apply..
 

Affirmed. 

[412 Mass. 402] Patricia M. Darrigo, Asst. Dist. Atty. (Rosemary D. Mellor, Asst. Dist. Atty., with her), for Com. 

Greta A. Janusz, New Bedford, for defendant. 

Before [412 Mass. 401] LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and GREANEY, JJ. 

[412 Mass. 402] WILKINS, Justice. 

We granted further appellate review in this case to consider the standard to be applied in ruling on a defendant's motion for a new trial based on the failure of the prosecution to disclose exculpatory evidence in its possession. 

At the defendant's 1978 trial on charges of rape, kidnapping, unarmed robbery, mayhem, and assault and battery, identification of the assailant was the only contested issue. The police arrested the defendant near the crime scene in Cambridge within minutes after the attacker had left the victim. The Cambridge police took photographs of the defendant shortly after his arrest. The victim testified repeatedly that her attacker was clean-shaven. Another witness who identified the defendant as the person he had seen near the crime
scene testified several times that the man he had seen had no moustache. Police witnesses testified that the defendant did not have a moustache on the day of the crimes. The defendant's wife testified, however, that at the time of the crimes the defendant did have a moustache.

[412 Mass. 403] The defendant moved generally for the disclosure of exculpatory evidence. Although he and his counsel knew that photographs had been taken shortly after his arrest, the defendant never specifically requested their production. Certainly, the defense was not hindered by an inability to be specific in any request it might make for the photographs. In October, 1988, pproximately ten years after his trial, the defendant wrote the record department of the Cambridge police department for a copy of the photographs taken of him on the night of his arrest. In circumstances not disclosed on the record, the defendant obtained them. The frontal photograph of the defendant's face shows the defendant with a moustache. The photograph would have aided the defendant in the impeachment of the principal witnesses against him. The Commonwealth grants that the photographs were exculpatory (Commonwealth v. Ellison, 376 Mass. 1, 21-22, 379 N.E.2d 560 [1978] ), but argues, that, in light of the evidence tending to show that the defendant was guilty, a new trial is not required. (FN1) 

Citing the rule stated in Commonwealth v. Gallarelli, 399 Mass. 17, 21, 502 N.E.2d 516 (1987), and cases cited, both the motion judge (who was not the trial judge) and the Appeals Court (Commonwealth v. Tucceri, 30 Mass.App.Ct. 954, 955, 956, 571 N.E.2d 48 [1991] ) ruled that the prosecution's failure to disclose the exculpatory evidence required a new trial, even though the defendant did not specifically move for its production. We agree and conclude that it is time for this court to expand on the appropriate considerations in
cases in which the prosecution had evidence that would have assisted the defendant but did not disclose it. One reason for presenting a more extensive explication of these considerations is that our views have [412 Mass. 404] not developed in parallel with those of the Supreme Court of the United States in cases involving prosecutorial failures to disclose exculpatory evidence.

[1] We shall discuss (1) the reasons why the prosecution must depart from a totally adversary role in cases of this sort, (2) the interrelationship of common law and constitutional principles in the decision of such cases, (3) the role of defense counsel and the relationship of any omissions of defense counsel to the prosecution's nondisclosures, (4) the significance, in deciding whether any error was reversible error, of the fact that the case was tried to a jury, and (5) the standard to be applied in deciding whether, in particular circumstances, a new trial may or should be ordered because admittedly exculpatory evidence was not provided to the defendant (and thus was not disclosed to the jury).  Of all these concerns, the last is the most problematic because, on such a fact-based issue, a universal guide as to when prosecutorial error requires a new trial cannot be fashioned except in general terms and because the outcome of a nondisclosure case may depend on seemingly minor word differences in expressing the standard for measuring prejudice to a defendant's case. (FN2) 

[2] [3] 1. The governing principles. Due process of law requires that the government disclose to a criminal defendant [412 Mass. 405] favorable evidence in its possession that could materially aid the defense against the pending charges.  The Supreme Court of the United States announced the prosecution's constitutional obligation to disclose material, exculpatory evidence in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), where the defendant had requested specific evidence. In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Court provided protections for defendants who only generally requested exculpatory evidence or made no request at all. The Agurs opinion distinguished between a specific request and a general request for exculpatory evidence in determining whether the prosecution's omission warranted a new trial. When the unsatisfied request was specific, a new trial would be required if the undisclosed evidence "might have affected the outcome of the trial." Id. at 104, 96 S.Ct. at 2398. If there was no request or if, as here, only a general request was made, a new trial would be required only if the undisclosed evidence "create[d] a reasonable doubt which did not otherwise exist." Id. at 112, 96 S.Ct. at 2402. In Commonwealth v. Ellison, 376 Mass. 1, 23-24, 379 N.E.2d 560 (1978), Justice Kaplan discussed some of the uncertainties the Agurs opinion created. (FN3) 

In United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), the Supreme Court adopted a single standard of prejudice (what it calls materiality) for all prosecutorial nondisclosure cases. See id. at 682, 105 S.Ct. at 3383; id. at 685, 105 S.Ct. at 3385 (White, J., concurring in part in the judgment). That unitary standard, taken from Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984), which in turn relied on the no request or no-specific request test of the Agurs case, states that "[t]he evidence is material [i.e. requires a new trial] 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[412 Mass. 406] in the outcome." United States v. Bagley, supra, 473 U.S. at 682, 105 S.Ct. at 3383. (FN4)  In Commonwealth v. Gallarelli, 399 Mass. 17, 502 N.E.2d 516 (1987), this court declined to adopt the Bagley "one size fits all" test as a matter of State law and adhered to the Agurs test for determining the consequences of a prosecution's failure to comply with a specific request for exculpatory evidence. Id. at 21 n. 5, 502 N.E.2d 516. See Commonwealth v. Daye, 411 Mass. 719, 728-729, 587 N.E.2d 194 (1992). 

[4] [5] There are several forces at work in prosecutorial nondisclosure cases. First, when the question arises posttrial, there is a public interest in  the finality of judgments.  New trials should not be granted except for substantial reasons.  Second, prosecutors, who are agents of the State and often have access to information that defendants may not have, should be encouraged to disclose exculpatory evidence that in fairness defendants should have for their defense. Of course, a prosecutor cannot always know that a particular piece of evidence is or might be exculpatory. (FN5)  A rule that encourages prosecutors [412 Mass. 407] to make pretrial disclosures of obviously or even arguably exculpatory material would not only promote fair trials (FN6) but would also help to avoid the difficulties of post-trial judicial review. Judges, therefore, should be sensitive to the allowance of motions for the disclosure of specific information claimed to be exculpatory. A prosecutor's duty, however, extends only to exculpatory evidence in the prosecutor's possession or in the possession of the police who participated in the investigation and presentation of the case. See Commonwealth v. Daye, 411 Mass. 719, 734, 587 N.E.2d 194 (1992). Third, when the omission of the prosecution is knowing and intentional or follows a specific request, a standard of prejudice more favorable to the defendant is justified in order to motivate prosecutors to be alert to defendants' rights to disclosure. 

It is this reason that underlies this court's rejection of the Bagley rule and our adoption of the specific request standard of the Agurs opinion as State law. See Commonwealth v. Gallarelli, supra, 399 Mass. at 21 n. 5, 502 N.E.2d 516. In such cases, we overlay a prophylactic rule upon common law and due process fairness standards that lessens the burden in proving prejudice. (FN7) We [412 Mass. 408] acknowledge that these disclosure requirements are
inconsistent with the traditional adversary role of litigants. But the duties of a prosecutor to administer justice fairly, and particularly concerning requested or obviously exculpatory evidence, go beyond winning convictions. See Commonwealth v. Wilson, 381 Mass. 90, 109, 407 N.E.2d 1229 (1980). See also S.J.C. Rule 3:08, PF 7, 382 Mass. 800 (1981) (standards relating to the prosecution function, disclosure of evidence by prosecutor). 

2. Common law and constitutional principles. In deciding whether a defendant is entitled to a new trial because the prosecution failed to turn over exculpatory evidence, State judges are not limited to constitutionally based principles. The opinions of the Supreme Court of the United States that we have cited previously in this opinion are concerned with defendants' Federal constitutional rights. Our opinions in this area have generally applied the Federal constitutional standards without stating explicitly whether the same standards apply under the State Constitution. Cf. Commonwealth v. Daye, 411 Mass. 719, 725, 729, 587 N.E.2d 194 (1992) (State due process rights considered). In Commonwealth v Gallarelli, supra, 399 Mass. at 21 n. 5, 502 N.E.2d 516, however, as we have said, we declined to follow the Supreme Court's position in United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). We elected instead, without stating whether our rule had a common law or State constitutional basis, to continue with the principles of our decisions that had applied the rule of the Brady and Agurs cases. Gallarelli, supra. See Commonwealth v. Ellison, 376 Mass. 1, 21, 379 N.E.2d 560 (1978). 

[6] There is no reason why the nondisclosure issue could not be advanced by a motion for a new trial to which the regular principles of  Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979), apply. Often such a motion will simply present a new trial claim based on newly discovered evidence. See Commonwealth v. Grace, 397 Mass. 303, 305, 491 N.E.2d 246 (1986) (defendant who seeks new trial on grounds of newly discovered evidence [412 Mass. 409] must show that evidence was newly discovered and that "it casts real doubt on the justice of the conviction"). (FN8) Even if undisclosed evidence is not "newly" discovered, the failure of a prosecutor to furnish exculpatory evidence in his possession could be a proper basis for a new trial motion based on other common law grounds. Such a motion could also be based on constitutional grounds.

In this case, the defendant, represented by new counsel, argued below and argues to us that his trial counsel negligently failed to move specifically for the production of the photographs and that that omission requires that he have a new trial. It is true that, for some unclear reason, the defendant moved only generally for the production of exculpatory evidence and not specifically for the production of the photographs. The motion judge did not order a new trial, however, on the ground of ineffective assistance of counsel. He had no need to, and did not, make findings or rulings concerning either the quality of defense counsel's performance or the possible impact on the verdict of any failure of defense counsel to meet the constitutionally minimum level of competence. Defense counsel did argue to the jury that the prosecution's failure to produce the photographs warranted an inference that they show that the defendant did have a moustache on the night of the crimes. That argument pales, however, in its likely impact on a jury when compared with the frontal photograph's candid, objective, and hence irrefutable demonstration on the same subject. We shall not, and need not, pursue the ineffective assistance of counsel argument to its conclusion. Perhaps an adequate explanation why counsel did not move specifically for the production of the photographs lies outside the record. (FN9) 

[412 Mass. 411]

The Supreme Court of the United States, on the other hand, seemingly assigns to the judge the task of assessing the consequences of the prosecutor's omission. See United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342 (1976). It is, of course, true that in deciding whether a defendant's due process right to a fair trial may have been violated, a court is deciding a question of constitutional law, which is clearly a judicial function.  Moreover, the Federal approach is arguably easier to apply. Judges can be more confident in assessing the effect that the omitted evidence would have had on them than in determining its effect on the collective or individual judgments of twelve lay people. On the other hand, the Federal approach seems to treat the involvement of a jury in the trial as irrelevant. We believe that the jury's role should be an acknowledged part of any assessment of a defendant's claim of prejudice caused by the prosecution's omission.

[412 Mass. 412]

[11] Our concern is with the standard to be applied when the defendant has made no request or, as here, has made only a general request for exculpatory evidence. The Supreme Court opinions refer to the "materiality" of the exculpatory evidence. In this opinion we have generally avoided using the word "material" to describe the importance of evidence to the new trial claim. If the evidence is exculpatory, it is also material in the general evidentiary sense that it is material (and relevant) to an issue in the case. In its opinions in the Agurs and Bagley cases, the Supreme Court has not used the word "material" in its ordinary, evidentiary sense. To that Court, evidence is material in the sense that its absence mattered or might have mattered in the trial of the case. We prefer to refer in standard common law terms to the degree of prejudicial effect, rather than materiality, of the improper nondisclosure of exculpatory evidence. 

Our common law standard for the granting of a new trial and our standard for measuring the consequences of the ineffectiveness of defense counsel provide the appropriate guide [412 Mass. 413] for determining whether the nondisclosure of evidence requires the allowance of a new trial motion.  See Commonwealth v. Daye, 411 Mass. 719, 734, 587 N.E.2d 194 (1992) (new trial standard);
Commonwealth v. Grace, 397 Mass. 303, 306, 491 N.E.2d 246 (1986) (same); Commonwealth v. Wright, 411 Mass. 678, 681, 584 N.E.2d 621 (1992) (ineffective assistance of counsel standard); Common- wealth v. Satterfield, 373 Mass. 109, 115, 364 N.E.2d 1260 (1977) (same). The judge must determine whether there is a substantial risk that the jury would have reached a different conclusion if the evidence had been admitted at trial.  Commonwealth v. Grace, supra. Would it have been a real factor in the jury's deliberations? Id. This test is substantially the same as the Saferian ineffective assistance of counsel standard: "whether [defense counsel's omission] has likely deprived the defendant of an otherwise available, substantial ground of defence."  Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). That standard, which is not explicitly constitutionally based, was replicated in another opinion of Justice Kaplan in the following words: "there ought to be some showing that better work [of counsel] might have accomplished something material for the defense." Commonwealth v. Satterfield, supra. 

The application of the common law standard that we have adopted requires a careful review of the trial court proceedings to determine whether there is a substantial chance that the jury might not have reached verdicts of guilty if the undisclosed evidence had been introduced in evidence. (FN11) In terms of the case before us, the issue is whether the defendant was denied a substantial factual basis for contending to the jury that the victim misidentified him. 

We find this standard to be clearer and fairer than the Agurs general 
request test, which is whether the undisclosed evidence creates a "reasonable doubt that did not otherwise exist." United States v. Agurs, supra, 427 U.S. at 112, 96 S.Ct. at 2402. Our standard recognizes the role of the jury. It also does not mandate, as a [412 Mass. 414] condition of the granting of a new trial, that a judge conclude that a reasonable doubt would have been created if the undisclosed evidence had been before the jury. It is enough that, on a full and reasonable assessment of the trial record, the absent evidence would have played an important role in the jury's deliberations and conclusions, even though it is not certain that the evidence would have produced a verdict of not guilty. 

[12] If the undisclosed evidence is cumulative, if it lacks credibility, or if, in an over-all assessment, it does not carry a measure of strength in support of the defendant, the failure to disclose that evidence does not warrant the granting of a new trial. If, however, the undisclosed evidence is more credible than any other evidence on the same factual issue and bears directly on a crucial issue before the jury, such as the credibility of an important prosecution witness, that evidence would have been a real factor in the jury's deliberations, and its presence before the jury might have accomplished something material for the defense. 

[13] 6. Conclusion. From what we have said, it follows that the nondisclosure of the photographs requires the ordering of a new trial. The frontal photograph of the defendant's face was authentic and incontestably showed that the defendant had a moustache. The photograph was made by the Cambridge police and, because of its unquestionable weight and reliability, was not "merely cumulative" of the testimony of the defendant's wife that he had a moustache on the day of the crimes. Although the fact that the defendant had a moustache does not disprove his commission of the crimes, it casts doubt on the identification of the defendant as the attacker because it demonstrates that the victim and other witnesses were undeniably wrong in one aspect of their sworn identification testimony. Consequently the photograph showing the defendant with a moustache would have been a real factor in the jury's [412 Mass. 415] deliberations, and its introduction in evidence might have accomplished something material for the defense. 

Order allowing motion for new trial affirmed. 

FN2. For example, the rule previously stated to be applied to the facts of this kind of case is whether the undisclosed evidence creates a reasonable doubt that did not otherwise exist. Commonwealth v. Gallarelli, 399 Mass. 17, 21, 502 N.E.2d 516 (1987), quoting United States v. Agurs, 427 U.S. 97, 110, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976). The motion judge expressed the guiding rule as whether the undisclosed evidence could create a reasonable doubt that would not otherwise exist. A standard that the Appeals Court stated at one point in its opinion was whether it could say that, if the exculpatory evidence had been introduced, "it would not have created a reasonable doubt as to the guilt of the defendant." Commonwealth v. Tucceri, 30 Mass.App.Ct. 954, 955, 571 N.E.2d 48 (1991) (emphasis supplied). The Appeals Court formulation may suggest that the Commonwealth has the burden of showing that the defendant was not prejudiced by the nondisclosure.  It is, however, the defendant who has the burden of showing prejudice warranting or requiring a new trial order. See Commonwealth v. Monteiro, 396 Mass. 123, 130, 484 N.E.2d 999 (1985); Commonwealth v. Wilson, 381 Mass. 90, 110, 407 N.E.2d 1229 (1980). 

FN3. A third aspect involves situations in which the prosecution knew or should have known that perjurious testimony was offered and did not disclose that fact. There, a new trial is required "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, supra, 427 U.S. at 103, 96 S.Ct. at 2397. 

FN4. In Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974), the Supreme Court said proof of prejudice was unnecessary when the scope of cross-examination was unconstitutionally restricted. In United States v. Bagley, 473 U.S. 667, 676-678, 105 S.Ct. 3375, 3380-81, 87 L.Ed.2d 481 (1985) the plurality opinion sought to distinguish Davis v. Alaska, a right to confrontation of witnesses case, from the due process basis of United States v. Bagley. The argument before us is not based on a denial of the defendant's constitutional right of confrontation. If no prejudice need be shown to obtain a new trial because of a direct restriction on the scope of cross-examination, should it be required for a substantial restriction on the depth and quality of cross-examination that results indirectly from prosecutorial nondisclosure of exculpatory evidence?

FN5. In this case, the prosecutor (who is not appellate counsel) must have been, and certainly should have been, aware before trial that the photographs existed. 

FN7. The rule that the Supreme Court stated in the Bagley case on its face makes the prosecution's state of mind irrelevant in deciding whether due process of law requires a new trial for any defendant from whom the prosecution improperly has withheld exculpatory evidence. This change is interesting in light of that Court's conclusion three years later in Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S.Ct. 333, 337-38, 102 L.Ed.2d 281 (1988), that only on a showing of police bad faith can there be a denial of due process of law in the failure of the prosecution to preserve potentially exculpatory evidence. This court has declined to follow the Youngblood rule and has not required proof of bad faith in addition to prejudice to the defendant, caused by the prosecution's loss or destruction of evidence, as a necessary factor in deciding that a new trial is required in such circumstances. Commonwealth v. Phoenix, 409 Mass. 408, 412 & n. 1, 567 N.E.2d 193 (1991). In Commonwealth v. Henderson, 411 Mass. 309, 310-311, 582 N.E.2d 496 (1991), where there was no police bad faith, we nevertheless upheld the pretrial dismissal of charges on State due process of law grounds where the police had lost a written record of the victim's description of the person who had robbed her in 1987 and where there were special circumstances involved in the victim's identification of the defendant more than two years later.

FN11. Whether a defendant has made a request for exculpatory evidence is of importance in considering the question of materiality of undisclosed evidence. 

If a specific request is made, a new trial is required if the undisclosed evidence might have affected the outcome of the trial.  Common- wealth v. Tucceri, supra at 405, 589 N.E.2d 1216. 

If no request or only a general request has been made, the test is whether the undisclosed evidence would have been a real factor in the jury's deliberations. Id. at 412-413, 589 N.E.2d 1216. 

Here, the evidence was destroyed before the defendant knew of its existence, and, therefore, there was no specific request. Assuming, without deciding, that the proper standard to be employed is the one used where there has been no request, we conclude that the destroyed evidence would have been a real factor in the jury's deliberations.