There are some pieces of evidence that the prosecution has an affirmative obligation to disclose to the defendant even if the defendant has not made any demand or the evidence does not fall within the enumerated categories of discoverable material – that is any information that is exculpatory. Exculpatory evidence is that which establishes or tends to show that the defendant is not guilty of any of the charges against him, or that is materially beneficial to the defendant’s position. This type of evidence is commonly referred to as Brady material, named after the United States Supreme Court case that set this standard. Brady material can be a tangible piece of evidence (like a written document) or can be information obtained by the prosecution through conversations with witnesses.

Example: The defendant is charged with grabbing the victim’s buttocks as she stood on a public sidewalk. The victim and defendant do not know each other. The victim called the police from the scene and police officers asked her to describe what the defendant looked like. A few days later the police encountered the defendant, who matched that description, and brought him into the police station. He was arrested after the victim picked him out of a lineup as the person who grabbed her. The police officer’s notes about his first conversation with the victim at the scene indicate that the victim told the police officer she “did not get a good look at the person’s face.” This information is materially beneficial to the defendant’s position in arguing that the victim’s identification is not reliable. This is Brady information.