Whether courts may impose a due diligence requirement for Brady claims that focuses on the defense rather than the government

QUESTIONS PRESENTED This Court first announced the due process requirement that the State disclose favorable exculpatory or impeachment evidence in Brady v. Maryland, 373 U.S. 83 (1963). Forty years later, this Court declined to factor into the Brady analysis the defendant’s own action, or lack thereof, in discovering material evidence withheld by the State, noting: “A rule thus declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system constitutionally bound to accord defendants due process.” Banks v. Dretke, 540 U.S. 668, 696 (2004). However, many jurisdictions, including Florida, have imposed a due diligence standard on the defense in determining Brady claims. The questions presented are: 1. May courts impose a due diligence requirement for Brady claims that focuses on the actions of the defense rather than the government, effectively limiting Brady’s reach to evidence that cannot be obtained by means other than government disclosure? 2. Must evidence be admissible to be material under Brady? i