Kyles v. Whitley, 514 U.S. 419, 51 (1995)

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Cite as: 514 U. S. 419 (1995)

Scalia, J., dissenting

is not. No witness involved in the case ever identified anyone but petitioner as the murderer. Their views of the crime and the escaping criminal were obtained in bright daylight from close at hand; and their identifications were reaffirmed before the jury. After the side-by-side comparison between Beanie and Kyles, the jury heard Territo say that there was "[n]o doubt in my mind" that petitioner was the murderer, Tr. 378 (Dec. 7, 1984); heard Kersh say "I know it was him. . . . I seen his face and I know the color of his skin. I know it. I know it's him," id., at 383; heard Smallwood say "I'm positive . . . [b]ecause that's the man who I seen kill that woman," id., at 387; and heard Williams say "[n]o doubt in my mind," id., at 391. With or without the Brady evidence, there could be no doubt in the mind of the jury either.

There remains the argument that is the major contribution of today's opinion to Brady litigation; with our endorsement, it will surely be trolled past appellate courts in all future failure-to-disclose cases. The Court argues that "the effective impeachment of one eyewitness can call for a new trial even though the attack does not extend directly to others, as we have said before." Ante, at 445 (citing Agurs v. United States, 427 U. S., at 112-113, n. 21). It would be startling if we had "said [this] before," since it assumes irrational jury conduct. The weakening of one witness's testimony does not weaken the unconnected testimony of another witness; and to entertain the possibility that the jury will give it such an effect is incompatible with the whole idea of a materiality standard, which presumes that the incriminating evidence that would have been destroyed by proper disclosure can be logically separated from the incriminating evidence that would have remained unaffected. In fact we have said nothing like what the Court suggests. The opinion's only authority for its theory, the cited footnote from Agurs, was appended to the proposition that "[a Brady] omission must be evaluated in the context of the entire record," 427 U. S.,

469

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