Brady and Forensics

Under the Brady doctrine, the State has an affirmative obligation to disclose material exculpatory evidence to the defense. This duty applies to both prosecutors and police officers. But does it apply to forensic scientists? And, if so, does it apply even in the absence of bad faith? These were the questions the Sixth Circuit had to answer in its recent opinion in Clark v. Louisville-Jefferson County Metro Government, 2025 WL 732838 (6th Cir. 2025).

Note that this was a civil case udner 42 U.S.C. § 1983.

​Hattip, Prof. Colin Miller.

 In 1995, a Kentucky jury convicted Garr Keith Hardin and Jeffrey Clark of murdering Rhonda Sue Warford. Robert Thurman, a forensic serologist, testified at their trial that a hair found at the crime scene was “similar” to a sample of Hardin’s hair. After Clark and Hardin spent over two decades in prison, DNA testing proved that this hair was not, in fact, Hardin’s. A state court thus vacated Hardin’s and Clark’s convictions. Clark and Hardin then brought this suit under 42 U.S.C. § 1983 against (among others) Thurman. In discovery, they obtained the “observation notes” that Thurman had written when examining the hairs. These notes suggested that the hair found at the scene might not have matched Hardin’s hair sample in various ways. Hardin claimed that Thurman’s failure to disclose the notes before trial violated his disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963). The district court denied Thurman’s qualified-immunity defense. On appeal, Thurman argues (1) that his notes were neither exculpatory nor material under Brady, and (2) that the law in the mid-1990s did not clearly establish that Brady’s duty of disclosure applied to scientists. Our precedent deprives us of jurisdiction over Thurman’s first argument. And it also dooms his second argument that Brady did not clearly apply to him. We thus affirm in part and dismiss in part for lack of jurisdiction.
. . .
​That brings us to the question at the crux of the parties’ debate: do forensic scientists have a Brady-like duty of disclosure even absent bad faith? Thurman argues that Brady’s generic legal rule reads the right at “too high a level of generality.” Beck, 969 F.3d at 600. Even if prosecutors had an absolute duty of disclosure in the 1990s, Thurman reasons, that rule does not establish that everyone else connected to the investigation (including forensic serologists) also had such an absolute duty. Hardin counters that our caselaw has already rejected this claim. Hardin is right. To be sure, Thurman correctly notes that Brady and the Supreme Court cases applying it have imposed the disclosure duty on “prosecutors,” not investigators like police officers or forensic scientists. Moldowan, 578 F.3d at 377; see Kyles, 514 U.S. at 437–38; Brady, 373 U.S. at 87. Yet we have held that pre-1990 cases clearly established that the police also have a “Brady-derived” duty to disclose material exculpatory evidence to the prosecution. Moldowan, 578 F.3d at 381–82; see Gillispie, 18 F.4th at 918 n.2; Jackson, 925 F.3d at 823−24. In Moldowan, for example, a state court had wrongly convicted the § 1983 plaintiff of a violent sexual assault, and he brought a Brady claim against (among others) an officer involved in the investigation. 578 F.3d at 363–67, 376. The plaintiff alleged that this officer violated Brady because he did not disclose an eyewitness’s “exculpatory statements” suggesting that other men had committed the assault. Id. at 376, 382. We held that “overwhelming” out-of-circuit precedent clearly established the extension of Brady’s no-fault regime to the police before 1990. Id. at 381–82. Admittedly, this caselaw addressed claims against police officers rather than forensic scientists. But “every reasonable” scientist would have recognized that this extension of Brady covered them too. Wesby, 583 U.S. at 63. To be sure, one might have distinguished prosecutors No. 24-5061 Clark, et al. v. Louisville-Jefferson Cnty. Metro Gov’t, et al. Page 14 from others in the criminal investigation for Brady purposes. After all, a state official must answer essentially legal questions suited for lawyers when deciding whether a piece of evidence is material or exculpatory. See Moldowan, 578 F.3d at 379–81; id. at 402 (Kethledge, J., concurring in the judgment in part and dissenting in part). But once we make the leap beyond prosecutors, we see no reasonable argument why this leap should apply only to police officers in the field and not those in the lab. See Horn v. Stephenson, 11 F.4th 163, 171−73 (2d Cir. 2021); Brown v. Miller, 519 F.3d 231, 237−38 (5th Cir. 2008); Pierce v. Gilchrist, 359 F.3d 1279, 1299 (10th Cir. 2004). An analogy confirms this point. In Spurlock, we found that the existing caselaw in 1990 clearly established that a police officer would violate due process by intentionally fabricating evidence. See 167 F.3d at 1005–06. In Gregory, we then relied on Spurlock to find that the caselaw clearly established this principle for forensic scientists. See 444 F.3d at 740, 744. Gregory saw “no reason to treat the intentional fabrication of a forensic report differently from the intentional fabrication of” a police report. Id. at 740; see Moldowan, 578 F.3d at 397. If we do not treat these two officials differently for purposes of a fabricated-evidence claim, why should we treat them differently for purposes of a Brady claim? In short, because we have held that it was clearly established in 1990 that Brady’s disclosure obligations covered police officers, we must now hold that it was clearly established that those obligations covered forensic examiners. In response, Thurman claims that no case has clearly established that a forensic scientist might have a Brady duty to turn over “unfinished notes” that contain only initial “thoughts and impressions.” Appellant’s Br. 34. At this stage, however, our precedent requires us to assume what the district court held a reasonable jury could find about these notes: that their exculpatory nature was “apparent” and that they were material to Hardin’s innocence. Clark, 2024 WL 55862, at *11. And, as explained, it was clearly established in 1990 that a scientist could violate Brady by failing to disclose material exculpatory evidence. That rule suffices to rebut Thurman’s qualified-immunity defense under our caselaw. See Gillispie, 18 F.4th at 918 n.2; Jackson, 925 F.3d at 823−24; Moldowan, 578 F.3d at 381–82. Contrary to Thurman’s claim, No. 24-5061 Clark, et al. v. Louisville-Jefferson Cnty. Metro Gov’t, et al. Page 15 these cases do not require plaintiffs to identify a decision that addressed exactly the same type of Brady evidence.