706
Opinion of Thomas, J.
case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Thomas, with whom Justice Scalia joins, concurring in part and dissenting in part.
I join Part III of the Court's opinion, and respectfully dissent from Part II, which holds that Banks' claim under Brady v. Maryland, 373 U. S. 83 (1963), relating to the non-disclosure of evidence that Farr accepted money from a police officer during the course of the investigation, warrants habeas relief. Although I find it to be a very close question, I cannot conclude that the nondisclosure of Farr's informant status was prejudicial under Kyles v. Whitley, 514 U. S. 419 (1995), and Brady.1
To demonstrate prejudice, Banks must show that "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles, supra, at 435. The undisclosed material consisted of evidence that "Willie Huff asked [Farr] to help him find [Banks'] gun," and that Huff "gave [Farr] about $200.00 for helping him." App. 442 (Farr Declaration). Banks contends that if Farr's receipt of $200 from Huff had been revealed to the defense, there would have been a "reasonable probability," Kyles, supra, at 434, that the jury would not have found "beyond a reasonable doubt that there
1 I do not address the possible application of the standard enunciated in Giglio v. United States, 405 U. S. 150 (1972), since I agree with the Court of Appeals that the issue was not properly raised below, and since addressing this issue would go beyond the question on which certiorari was granted. See Brief for Petitioner (i) (stating the question presented as whether "the Fifth Circuit commit[ted] legal error in rejecting Banks' Brady claim—that the prosecution suppressed material witness impeachment evidence that prejudiced him in the penalty phase of his trial—on the grounds that: . . . the suppressed evidence was immaterial to Banks' death sentence").
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