Constitutional Law—Ninth Circuit Effectively Precludes Future Findings of Brady Violations in the Absence of a Conviction—Smith v. Almada, 640 F.3d 931 (9th Cir. 2011)

When analyzing a claim under 42 U.S.C § 1983 that the government withheld exculpatory evidence from a criminal defendant, courts typically use the Fifth or Fourteenth Amendment’s due process standard as articulated in the iconic 1963 case of Brady v. Maryland.  In Smith v. Almada, the Court of Appeals for the Ninth Circuit considered whether a police officer’s failure to disclose exculpatory evidence violated the plaintiff’s due process right to a fair trial—thereby exposing the officer to civil liability under Brady—where the plaintiff had spent over seventeen months in jail but had never been convicted.  The Ninth Circuit initially answered that question very broadly, holding that relief under Brady is unavailable entirely in the absence of a conviction.  On plaintiff’s motion for rehearing, however, the court superseded its original decision, transcribing the former majority’s opinion into a special concurrence, which, because of the court’s maneuverings, effectively remains as Smith’s de facto holding. . .