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(Judge DeMoss concurred in the judgment but commented in a separate opinion expressing his concern
of the officer s actions leading up to the incident and referring to a prior case (Rockwell v. Brown) from the same
agency in which he expressed a similar concern. This illustrates that, for now, when analyzing a use of force
claim, the Fifth Circuit focuses upon a snapshot of the facts confronting the officer (including information
known to him) at the time the force was applied without consideration of whether the officer(s) actions leading
up to the need for the use of force. This is not the case in many other Circuits which do analyze and consider
the issue of whether an officer s conduct causes the situation in which force is necessary. It appears that Judge
DeMoss, and possible others, would consider such preliminary conduct in the right case.)
th
Elizondo v. Green, No. 10-11177 (5 Cir. Feb. 13 , 2012).
th

Evidentiary issues and Miranda cases

U.S. SUPREME COURT BRADY VIOLATION CONVICTION BASED UPON SINGLE
EYEWITNESS
Smith was convicted of first-degree murder based on the testimony of a single eyewitness. During state
post-conviction relief proceedings, Smith obtained police files containing statements by the eyewitness
contradicting his testimony. Smith argued that the prosecutions failure to disclose those statements violated
Brady v. Maryland. Brady held that due process bars a State from withholding evidence that is favorable to the
defense and material to the defendants guilt or punishment. See id., at 87. The state trial court rejected Smiths
Brady claim, and the Louisiana Court of Appeal and Louisiana Supreme Court denied review.

Held: Brady requires that Smiths conviction be reversed. The State does not dispute that the eyewitnesss
statements were favorable to Smith and that those statements were not disclosed to Smith. Under Brady, evidence
is material if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding
would have been different. Citation omitted. A reasonable probability means that the likelihood of a different
result is great enough to undermine[ ] confidence in the outcome of the trial. Citation omitted. Evidence
impeaching an eyewitnesss testimony may not be material if the States other evidence is strong enough to
sustain confidence in the verdict. Citation omitted. Here, however, the eyewitnesss testimony was the only
evidence linking Smith to the crime, and the eyewitnesss undisclosed statements contradicted his testimony. The
eyewitnesss statements were plainly material, and the States failure to disclose those statements to the defense
thus violated Brady.
We have observed that evidence impeaching an eyewitness may not be material if the States other
evidence is strong enough to sustain confidence in the verdict. Citation omitted. That is not the case here.
Boatner s (the eyewitness) testimony was the only evidence linking Smith to the crime. And Boatner s
undisclosed statements directly contradict his testimony: Boatner told the jury that he had [n]o doubt that Smith
was the gunman he stood face to face with on the night of the crime, but Ronquillos notes show Boatner saying
that he could not ID anyone because [he] couldnt see faces and would not know them if [he] saw them.
Boatner s undisclosed statements were plainly material.

The decision was 8 1 with only Justice Thomas dissenting who would have found that the withheld
evidence would not have changed the underlying verdict for conviction.

(ed. note: In any investigation, all evidence and statements should be provided to the prosecutor who is
in the best position to determine what should be produced as Brady material.)

SMITH v. CAIN, WARDEN, No. 108145 (U. S. Supreme Court. January 10, 2012).

A Peace Officer’s Guide to Texas Law 62 2013 Edition