Exculpatory evidence

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Exculpatory evidence is evidence favorable to the defendant in a criminal trial that exonerates or tends to exonerate the defendant of guilt.[1] It is the opposite of inculpatory evidence, which tends to present guilt.

In many countries, including the United States, police and prosecutors are required to disclose to the defendant exculpatory evidence they possess before the defendant enters a plea (guilty or not guilty).[2] In some countries such as Germany, the prosecutor has to actively search for both exculpatory and inculpatory circumstances and evidence before filing of action.[3]

Per the Brady v. Maryland decision, prosecutors in the United States have a duty to disclose exculpatory evidence even if not requested to do so. While the prosecution is not required to search for exculpatory evidence and must disclose only the evidence in its possession, custody, or control, the prosecution's duty is to disclose all information known to any member of its team, e.g., police, investigators, crime labs, et cetera. In Brady v. Maryland, the U.S. Supreme Court held that such a requirement follows from constitutional due process and is consistent with the prosecutor's duty to seek justice.[4] The Brady doctrine is a pretrial discovery rule that was established by the United States Supreme Court in Brady v. Maryland (1963).[5] The rule requires that the prosecution must turn over all exculpatory evidence to the defendant in a criminal case. Exculpatory evidence is evidence that might exonerate the defendant.[6]


A victim is murdered by stabbing and a suspect is arrested for the murder. Evidence includes a knife covered with blood found near the victim and the accused found covered in blood at the murder scene. During the investigation, the police interview a witness claiming to have seen the stabbing. The witness makes a statement to the police that another unidentified person committed the crime, not the accused. The witness's statement is exculpatory evidence as it introduces reasonable doubt as to the guilt of the accused. The police either do not believe the witness's account or else find the witness unreliable and choose not to follow up on the lead. The prosecutor is obliged to inform the accused and his or her attorney of the witness's statement even though the police doubt the witness's version of events. Failure to do so would provide grounds for a motion to dismiss the charges or an appeal of a subsequent guilty verdict.

See also[edit]


  1. ^ Lehman, Jeffrey; Phelps, Shirelle (2005). West's Encyclopedia of American Law, Vol. 7 (2 ed.). Detroit: Thomson/Gale. p. 286. ISBN 9780787663742.
  2. ^ "Plea Bargains: Necessary Tool, Or Cop-Out?". NPR. Talk of the Nation. Retrieved 20 November 2021., Quote from Prof. Laurie Levenson: "Prof. SCHECK: ... that didn't commit the crime. But I think the problem is that under the law now, number one, prosecutors are not obligated to provide exculpatory evidence to grand juries who are considering whether or not to indict a defendant. And number two, there's no real requirement at all that prosecutors disclose exculpatory evidence to defendants prior to the time they decide to plead."
  3. ^ § 160 (2) Strafprozessordnung (StPO) [Code of Criminal Procedure] of 2021-09-14
  4. ^ James W. H. McCord, Sandra L. McCord (2001). Criminal Law And Procedure For The Paralegal: A Systems Approach. Thomson Delmar Learning. p. 454. ISBN 0-7668-1965-5.
  5. ^ John Kaplan, Robert Weisberg, and Guyora Binder, Criminal Law - Cases and Materials 4 (Wolters Kluwer Law & Business, 7th ed. 2012).
  6. ^ Garner, Bryan A. (1999) [1891]. Exculpatory evidence. Black's Law Dictionary (7th ed.). St. Paul, Minnesota: West Publishing. p. 577. ISBN 0-314-22864-0. ISBN 0-314-241-30-2-deluxe. exculpatory evidence Evidence tending to establish a criminal defendant's innocence ● The prosecution has a duty to disclose exculpatory evidence in its possession or control when the evidence may be material to the outcome of the case.