Every element of this test (known in the First Circuit as the “Wright Test”) is essential; a failure to established any element will defeat the motion. A somewhat different paradigm applies when the defendant (Marino) makes a colorable claim that he would have had access to the newly discovered evidence BUT for the Government’s failure to hand over the SEALED DOCUMENTS in United States v. Salemme, 91 F.Supp.2d pages 267-269, 311 (exhibits: 188-247) (D.Mass.1999) to disclose it in accordance with Brady v. Maryland, 373 U.S. 83, 87 (1963).
Judge: Mark L. Wolf, ORDERED in 1989 via: United States v. Marino, CR-89-190-MLW. (D.Mass/Boston) the discovery concerning the June 16, 1989 Salemme attempted murder & then again in front of Judge: Gorton, the government failed to comply. Under the Local Rules of the United States District Court District of Massachusetts, in effect the prosecution, was required to turn over all written, testimonies, transcripts, documents, material constituting “exculpatory evidence within the meaning of Giles, Brady & Giglio.
This more defendant-friendly standard applies, then, to what are colloquially known as “Brady Violations.”There are three components of an authentic Brady violation:
1. The evidence (whether exculpatory or impeaching) must be favorable to the accused (Marino);
2. that the evidence must have been either willfully or inadvertently suppressed by the Government; and
3. prejudice must have ensued. For the purposes of a new trial motion, the same standard applies to claims that the government knowingly used perjured testimony. That standard, though, does not extend to the unwitting use of perjured testimony.