SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court and may not summarize all portions of the opinion.
State v. Yusuf B. Allen (A-7-25) (090853)
Argued March 30, 2026 -- Decided July 29, 2026
JUSTICE WAINER APTER, writing for a unanimous Court.
In this appeal, the Court considers the proper measure of “materiality” for a claim that the State failed to turn over evidence under Brady v. Maryland, 373 U.S. 83 (1963), including whether the materiality standard articulated in State v. Carter, 86 N.J. 300 (1981) applies, and whether the record in this case meets that standard.
Defendant Yusef B. Allen was tried for the murder of Lannie Silver, Jr. At the trial, Ruby Waller testified that on October 15, 1997, she and Silver went to a house where she purchased crack cocaine. When Silver inquired about purchasing drugs, defendant and Ben McNeil exited the house and yelled, “get the F out of here, [we] don’t sell drugs [here], white mother-f*****.” Silver put his hands up and backed away. Defendant went back into the house and returned with a gun, at which point Waller ran to her house. Defendant and McNeil continued to yell at Silver. Waller heard a gunshot, ran inside, and heard “several more” gunshots and “the victim screaming.” She looked out the window and saw Silver fall to the ground, crawl to the middle of the street, and collapse. Waller anonymously called 911.
Waller testified that on October 27, after learning Silver had died, she contacted the Plainfield Police Department to give a formal statement. In that statement, she again identified defendant and McNeil as suspects and told police that she saw defendant holding a gun. Waller testified that she had three cocaine possession convictions from 1990 to 1991 and that she was arrested for shoplifting on June 21, 1998. Noting that the shoplifting case was ongoing, the prosecutor asked Waller whether she was expecting any benefit with respect to that case for her testimony in defendant’s case. She said that she was not and that she did not have any matters pending when she gave her October 27 statement.
Defendant was found guilty of murder and weapons offenses. His conviction was affirmed on direct appeal. 337 N.J. Super. 259, 264, 275 (App. Div. 2001). In the many years since, defendant has been challenging the jury verdict in direct and collateral appeals brought in State and federal courts.
1
In 2013, defendant sought habeas relief in federal court. Among other claims, defendant argued that the prosecutor violated Brady by failing to disclose Ruby Waller’s April 19, 1991 plea agreement, pursuant to which she had received three years’ imprisonment in exchange for testifying in the trial of her co-defendant. The federal court found defendant’s claim meritless; defendant then filed a motion for a new trial based on newly discovered evidence in state court, arguing that withholding the plea agreement violated Brady because the agreement “could have been used for impeachment . . . of the [S]tate’s chief witness.”
Following an initial denial of the motion, reversed by the Appellate Division, assigned counsel for defendant filed a motion for a “new trial based upon newly discovered evidence” under Carter, 85 N.J. at 313. The motion court denied defendant’s motion. The Appellate Division affirmed in part and remanded in part. 482 N.J. Super. 142, 169 (App. Div. 2025). As relevant here, the appellate court concluded that the motion court erred in evaluating defendant’s claims under Carter, rather than Brady, but the error was harmless because “we see no practical difference between the materiality/harmless error elements set forth in the Brady and Carter formulations.” Id. at 164. The Court granted certification limited to the appropriate materiality standard and its application. 261 N.J. 605 (2025).
HELD: The Brady and Carter materiality standards are not the same. Defendant has not satisfied Brady materiality in this case, so the Court affirms as modified.
1. In Brady, the United States Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment.” 373 U.S. at 87. The Court later expanded Brady to apply to impeachment evidence as well as exculpatory evidence known to police investigators or to prosecutors, even if defendant submits no request. There are thus three elements to a Brady claim: (1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued. The third component, prejudice, is also known as the materiality requirement. Because the materiality inquiry lies at the center of this case, the Court reviews its evolution in depth. Brady itself did not set forth any test for materiality. In Strickland v. Washington, the Court elaborated on why the materiality standard that governed a motion for a new trial based on newly discovered evidence was inappropriate for Brady claims, and also for ineffective assistance of counsel claims. 466 U.S. 668, 694 (1984). Ultimately, the Court identified the materiality test for Brady purposes as requiring the petitioner to show “that there is a reasonable probability that his conviction or sentence would have been different had [the Brady] materials been disclosed.” Strickler v. Greene, 527 U.S. 263, 296 (1999). (pp. 16-22)
2
2. State v. Carter, on the other hand, addresses situations in which a defendant comes forward after trial with newly discovered evidence that did not come from the prosecution. 85 N.J. at 313. For a new trial to be granted under Carter, “the new evidence must be (1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury’s verdict if a new trial were granted.” Id. at 314 (emphasis added). That test “is more stringent” than the “Brady analysis.” Ibid. (p. 22)
3. Reviewing those standards closely, the Court finds that the Appellate Division erred in holding that the Brady and Carter materiality standards are the same. For Brady claims, the word “reasonable” modifies “probability” -- and a “reasonable probability” that the result of the proceeding would have been different does not require a defendant to show that the verdict more likely than not would have been different, or to demonstrate by a preponderance that the verdict would have been different. The widely used standard for assessing motions for a new trial based on newly discovered evidence, however, generally does require a showing that the new evidence “more likely than not” would, or “by a preponderance of the evidence” would, change the outcome of the case. Strickland, 466 U.S. at 693-94. When it comes to materiality, “probably” or “more likely than not” is a more demanding standard than “reasonable probability.” The Court clears up any confusion from cross quotations in past cases by holding today that “would probably change the jury’s verdict” is a more stringent standard than “a reasonable probability” that the jury’s verdict would change. (pp. 23-30)
4. Although it erred in holding that the standards for Brady and Carter materiality are the same, the Appellate Division reached the correct result because defendant has not met the Brady materiality standard. According to defendant, had he known about the 1991 plea agreement at trial, he could have suggested that “Waller’s testimony was motivated by her interest in currying favor with the State in exchange for her testimony” because she “had previously received leniency for doing just that.” The Court explains why that argument was not sufficient to raise “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” The Court is confident that even if Waller’s 1991 plea form had been disclosed to the defense, the jury’s verdict would have been the same. (pp. 30-33)
AFFIRMED.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, PIERRE-LOUIS,
FASCIALE, NORIEGA, and HOFFMAN join in JUSTICE WAINER APTER’s
opinion.
3
SUPREME COURT OF NEW JERSEY
A-7 September Term 2025
090853
State of New Jersey,
Plaintiff-Respondent,
v.
Yusef B. Allen,
Defendant-Appellant.
On certification to the Superior Court,
Appellate Division, whose opinion is reported at
482 N.J. Super. 142 (App. Div. 2025).
Argued Decided
March 30, 2026 July 29, 2026
Lucas B. Slevin, Assistant Deputy Public Defender,
argued the cause for appellant (Jennifer N. Sellitti, Public
Defender, attorney; Lucas B. Slevin, of counsel and on
the briefs, and Stephen W. Kirsch, Designated Counsel,
on the briefs).
Milton S. Leibowitz, Assistant Prosecutor, argued the
cause for respondent (William A. Daniel, Union County
Prosecutor, attorney; Michele C. Buckley, Assistant
Prosecutor, of counsel and on the briefs).
Jeffrey P. Mongiello argued the cause for amicus curiae
Association of Criminal Defense Lawyers of New Jersey
(Chiesa Shahinian & Giantomasi, attorneys; Jeffrey P.
Mongiello, Lee Vartan, Brittany Manna, and Liam Ryan,
of counsel and on the brief).
1
Thomas R. Clark, Deputy Attorney General, argued the
cause for amicus curiae Attorney General of New Jersey
(Jennifer Davenport, Attorney General, attorney; Thomas
R. Clark, of counsel and on the brief).
JUSTICE WAINER APTER delivered the opinion of the Court.
In this case, we consider whether the standard for materiality under
Brady v. Maryland, 373 U.S. 83 (1963), is the same as the standard for
materiality under State v. Carter, 85 N.J. 300 (1981).
Under Brady, when the prosecution fails “to disclose evidence favorable
to the accused,” “evidence is material only if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” United States v. Bagley, 473 U.S.
667, 682 (1985) (opinion of Blackmun, J.); accord id. at 685 (White, J.,
concurring in part and concurring in the judgment). Under Carter, when a
defendant moves for a new trial based on newly discovered evidence that does
not come from the prosecution, evidence must be “of the sort that would
probably change the jury’s verdict if a new trial were granted.” 85 N.J. at 314.
Evidence that has a “reasonable probability” of changing the jury’s
verdict is a lower threshold than evidence that would “probably” change the
jury’s verdict. We therefore hold that the Brady and Carter materiality
standards are not the same.
2
However, defendant has not satisfied Brady materiality in this case. We
therefore affirm the Appellate Division’s judgment as modified.
I.
A.
Defendant Yusef B. Allen was convicted after a jury trial of the October
15, 1997 murder of Lannie Silver, Jr. The following facts were elicited at trial.
Ruby Waller testified that early in the morning of October 15, 1997,
Silver approached her on a street in Plainfield and asked where he could buy
drugs. Waller took Silver to what she called “the Mack House.” Waller
approached a window on the front porch of the house and purchased crack
cocaine from a person she recognized by voice as Ben McNeil. She then
stepped aside so that Silver could take her place at the window. When Silver
approached the window and asked “[w]hat you got?” McNeil and defendant
exited the house and yelled, “get the F out of here, [we] don’t sell drugs [here],
white mother-f*****.”
Silver put his hands up and backed off the porch. McNeil and defendant
followed. Waller testified that as he followed Silver, defendant yelled, “[h]old
up, I got something for this mother-f*****.” Defendant went into the house,
returning “[a] second” later carrying a gun “[i]n his hand, down on the side.”
3
When Waller saw defendant holding a gun, she ran towards her own
home, which was on the same block. McNeil and defendant continued to yell
at Silver. As Waller approached her front steps, she heard a gunshot. She ran
inside. From there, Waller heard “several more” gunshots and “the victim
screaming.” She looked out the window and saw Silver fall to the ground,
crawl to the middle of the street, and collapse.
Rhonda Whitfield testified that she was also on the street on October 15,
1997 to buy drugs at the Mack House. Whitfield testified that she was “dope
sick” and paying “no mind,” but she “knew something wasn’t right.”
Whitfield saw defendant “yelling” at Silver, who was “trying to walk” away.
Defendant was holding something against his right leg and “running behind
[Silver].” Whitfield then heard what she thought were “firecrackers.”
Waller anonymously called 911 and stated that “somebody had been shot
and . . . was in the middle of the street.” She called again later that afternoon,
telling the police that, from the window of her home, she heard a gunshot and
saw Silver fall. Waller identified defendant and McNeil as the suspects. She
refused to provide her name, address, or telephone number.
Waller testified that on October 27, 1997, after learning that Silver had
died, she contacted the Plainfield Police Department to give a formal
4
statement. In that statement, Waller again identified defendant and McNeil as
suspects and told police that she saw defendant holding a gun.
In contrast, Waller testified that she later told defense investigators that
she did not recall defendant holding a gun “[b]ecause I didn’t want to be
bothered. I was fed up. I just had my [door] kicked in.” Specifically, Waller
testified that more than a year after the shooting, in December 1998, three
defense investigators came to her sister’s home. Two investigators (Allen
Mularz and June Davidson), approached the front door, while a third remained
in the car. Waller went out onto the porch, without shoes and in the cold, and
told Mularz that she did not want to speak to him. According to Waller,
Mularz and Davidson stayed for no more than five minutes. Neither took
notes, asked her to give a statement, recorded the conversation, or showed her
any written report.
Mularz gave a very different version of that conversation. Mularz
testified that he and Davidson spoke to Waller for approximately 70 minutes,
and Waller never said she did not want to speak to them. Mularz testified that
they asked Waller “four or five times” if she had seen a gun, and each time
Waller responded that “she didn’t see anybody with any guns.” Mularz agreed
that although he and Davidson had access to a tape recorder, a video recorder,
and a pen and paper, they did not record the interview, take notes, or take any
5
statement from Waller at the time. Instead, when he and Davidson returned to
the car, Davidson took notes and Mularz reviewed them.
Waller testified that on March 30, 1990, she was convicted of possessing
cocaine in two separate indictments and received a sentence of three years’
probation. She testified that on April 19, 1991, she was again convicted of
possessing cocaine. This time, she was sentenced to three years in prison.
Waller also testified that she was arrested for shoplifting on June 21, 1998.
The following exchange then took place between the Prosecutor and Waller:
Q: With respect to that last matter, ma’am, which
occurred during the pendency of this [case], are you
expecting any benefit with respect to that case for your
testimony here today?
A: No.
Q: Has that case been concluded?
A: No.
Q: Have you -- that’s in municipal court. Is that
correct?
A: Yes.
Q: Are you represented by an attorney?
A: No, I’m not.
Q: Have you discussed the case with the prosecutor in
municipal court?
A: No.
6
Q: Have you asked to receive any benefit on that case
as a result of your testimony here today?
A: No, I haven’t.
Q: At the time that you gave your statement to the
Plainfield police on October 27, 1997, did you have any
matters pending at that point in time?
A: No, I didn’t.
Q: Were you expecting any benefit at that point in time
for giving your statement to the Plainfield police?
A: No.
[DEFENSE]: Objection. You can’t support the
credibility of one[’]s own witness. I object.
THE COURT: Sustained. The answers to the
questions are struck.
B.
Defendant was found guilty of murder, possession of a weapon for an
unlawful purpose, and unlawful possession of a weapon. His conviction was
affirmed, and defendant was ultimately sentenced to life imprisonment with 30
years’ parole ineligibility. State v. Allen, 337 N.J. Super. 259, 264, 275 (App.
Div. 2001). We denied certification.
In the many years since, defendant has been “persistent in challenging
the jury verdict in direct and collateral appeals brought in State and federal
7
courts.” State v. Allen, No. A-2192-17T1 (App. Div. Apr. 14, 2020) (slip op.
at 2). 1
In 2013, defendant, self-represented, filed a petition for a writ of habeas
corpus in federal court. He later added a claim that the prosecutor violated
Brady and Giglio v. United States, 405 U.S. 150 (1972), by failing to disclose
Ruby Waller’s April 19, 1991 plea agreement, pursuant to which she had
received three years’ imprisonment in exchange for testifying in the trial of her
co-defendant Riccardo Bradley. Allen v. Warren, Civ. No. 13-4304, 2015 U.S.
Dist. LEXIS 7302, at *10-11 (D.N.J. Jan. 20, 2015).
Defendant requested a stay so he could exhaust the Brady claim in state
court. Ibid. The federal district court denied defendant’s request, finding the
Brady claim “plainly meritless.” Allen v. Warren, Civ. No. 13-4304, 2015
U.S. Dist. LEXIS 38937, at *12 (D.N.J. Mar. 26, 2015). The court accepted
defendant’s allegation that although the prosecution disclosed Waller’s April
19, 1991 conviction, it had not “revealed that th[e] conviction resulted from a
cooperating plea bargain.” Id. at *10. Nonetheless, the court concluded,
“[t]here is no reasonable probability that the additional disclosure that Waller’s
1
We cite to unpublished opinions here only to establish the chronology of events and not for any principles of law. R. 1:36-3.
8
April 1991 conviction was procured through a cooperating plea bargain would
have changed the result of Mr. Allen’s trial.” Id. at *12.
This was so, the court explained, because even if Waller’s 1991 “plea
deal could have been used to show that Waller had a general awareness that
such a deal could be struck,” unless it could “be linked in some way to a
promise of leniency in return for [Waller’s] testimony in Allen’s murder case,”
it had “no significance.” Id. at *11-12 (emphasis omitted). And there was no
possible link because there was “no evidence or allegation that Waller came
forward or testified in [defendant’s] murder case as the result of any deal for
leniency.” Id. at *10. The court emphasized that Waller originally gave her
statement to the police “at a time when no charge was pending” and that, even
though she was then charged with shoplifting before testifying at trial, she had
not even “consulted with counsel or spoken to the municipal prosecutor about”
the charge, and “had not made any arrangement to obtain any benefit in
connection with her testimony in [defendant’s] murder case.” Id. at *10-12.
Undeterred, defendant filed a motion for a new trial based on newly
discovered evidence in state court. In connection with that motion, defendant
certified that on March 22, 2014, he received a paper copy of Waller’s April
19, 1991 plea form.
9
The plea form states that Waller was charged with third-degree
possession of cocaine, which carried a statutory maximum of five years’
imprisonment. Under Question 13, “Specify any sentence the Prosecutor has
agreed to recommend,” the following is handwritten: “*Testify truthfully at
[co-defendant’s] trial[.] Maximum 3 years flat State Prison[.] Any custodial
term for violation of probation to run concurrently to this sentence[.]”
Waller’s 1991 Judgment of Conviction similarly states: “Defendant is to
testify truthfully in the trial of Riccardo Bradley.”
Defendant argued that “[t]he [S]tate violated Brady[] by withholding”
this plea agreement because it “could have been used for impeachment . . . of
the [S]tate’s chief witness.” An assistant public defender was assigned. The
attorney investigated defendant’s allegations and submitted a certification
concluding that “there was not enough reliable information to validate a
credible motion.”
The motion judge therefore denied defendant’s motion for a new trial.
The Appellate Division reversed and remanded for the motion judge to “make
his own findings,” without relying on counsel’s certification.
In February 2022, assigned counsel for defendant then filed a motion for
a “new trial based upon newly discovered evidence” under Carter, 85 N.J. at
313. Counsel discussed the Carter requirements in detail and argued that all
10
three were satisfied. Specifically, counsel argued that Waller’s 1991
agreement “to testify against her co-defendant in exchange for a favorable
plea” was “clearly material” because Waller was “the State’s chief witness,”
and “successful impeachment of Ms. Waller may very well change a jury’s
verdict.”
The State responded that defendant could not satisfy Carter. According
to the State, Waller’s 1991 plea agreement was not material because there was
no evidence that it required Waller to testify against defendant in his unrelated
trial eight years later.
After a detailed review of Carter’s three-prong test, the motion court
denied defendant’s motion. The court specifically concluded that “the fact that
Ms. Waller agreed to testify against a co-defendant in exchange for a favorable
plea deal 8 years ago has no relevance to the case at hand.” It also deemed
defendant’s “allegation that Ruby Waller received a reward in exchange for
her testimony” at his trial to be “mere[] speculation.”
On appeal, defendant’s appellate counsel argued that defendant’s motion
for a new trial should have been brought pursuant to Brady, not Carter.
According to appellate counsel, assigned counsel therefore erroneously “relied
upon the more stringent materiality standard set forth in State v. Carter”
11
instead of the more lenient standard applicable to motions brought pursuant to
Brady.
The Appellate Division affirmed in part and remanded in part. State v.
Allen, 482 N.J. Super. 142, 169 (App. Div. 2025). As relevant here, the
appellate court concluded that the motion court erred in evaluating defendant’s
claims under Carter, rather than Brady, but the error was harmless because “we
see no practical difference between the materiality/harmless error elements set
forth in the Brady and Carter formulations.” Id. at 164. According to the
Appellate Division, “the Carter and Brady tests share a common element: as a
prerequisite to the grant of a new trial, the reviewing court must determine
whether the jury’s verdict would have been different had the defense been
aware of the new evidence before trial.” Id. at 152 (emphasis added).
The Appellate Division reviewed the Brady and Carter tests at length. It
acknowledged our statement in Carter that “[w]hereas the test of materiality
for the granting of a new trial under a Brady analysis is simply whether the
suppressed evidence might have affected the outcome of the trial, . . . the test
to be satisfied under a newly discovered evidence approach is more stringent.”
Id. at 164 (alteration and omission in original) (quoting Carter, 85 N.J. at 314).
But it nonetheless explained: “we do not believe that the Carter test is more
stringent than the one prescribed in Brady with respect to the question of
12
materiality and whether the trial outcome would have been different if the
evidence at issue had been disclosed to the defense prior to trial.” Ibid.
The appellate court assumed “for the sake of argument that the first two
prongs of the Brady test” were met. Id. at 165. However, it found that
defendant could not satisfy the third prong because he could not show that “the
trial outcome would have been different if Waller’s 1991 plea deal had been
disclosed to the defense so that it could be explored on her cross-examination.”
Id. at 166. Detailing the testimony at trial, the appellate court determined that
“there is not a reasonable probability that had the 1991 plea agreement been
disclosed to the defense, the trial result would have been different.” Ibid.
Defendant petitioned for certification, arguing that the Appellate
Division erred in concluding that “the materiality standards under Carter and
Brady are the same.”
We granted defendant’s petition for certification, “limited to the proper
measure of ‘materiality’ for a claim that the State failed to turn over evidence
under Brady v. Maryland, 373 U.S. 83 (1963), including whether the
materiality standard articulated in State v. Carter, 86 N.J. 300 (1981) applies,
and whether the record in this case meets that standard.” 261 N.J. 605 (2025).
We also granted leave to the Attorney General and the Association of Criminal
Defense Lawyers of New Jersey (ACDL) to participate as amici curiae.
13
II.
Defendant argues that the Appellate Division erred in equating the Brady
and Carter materiality standards because the standards are “plainly not
equivalent.” Instead, Carter is “more stringent” than Brady. (quoting Carter,
85 N.J. at 314). According to defendant, “Carter materiality requires a
showing that the new evidence ‘probably’ would have changed the outcome [at
trial], which is equivalent to a preponderance,” whereas “Brady materiality
requires a showing of a ‘reasonable probability’ that the evidence would have
changed the outcome, which is less than a preponderance.” Thus, “evidence
that is sufficient to ‘undermine confidence’ in the outcome of the case will
satisfy Brady materiality but not Carter materiality.” And here, defendant
contends, Brady materiality is satisfied because had the prosecutor disclosed
Waller’s 1991 plea agreement, defendant could have argued that “Waller’s
plea demonstrated that she knew how beneficial testifying for the State can be
and was only testifying in [defendant’s] case in the hope of currying favor with
the State on her shoplifting charge.”
The State agrees with defendant that “the Appellate Division incorrectly
equated” the Carter and Brady materiality tests. The State also agrees that a
“‘reasonable probability[]’ is not a preponderance of the evidence standard”
and does not require a court to find it was “more likely than not that the
14
withheld evidence would have resulted in an acquittal. Rather, it is a slightly
lower standard requiring consideration of whether the defendant received a
trial resulting in a verdict worthy of confidence.” However, the State contends
that the Appellate Division was correct in concluding that defendant did not
satisfy Brady materiality because “nothing in the 1991 plea agreement
contemplated that Waller was required” to testify “at defendant’s trial nine
years later,” and there was “no evidence that Waller received any promise or
favorable treatment in exchange for her testimony at defendant’s trial.”
The Attorney General agrees with both parties that the Carter and Brady
materiality standards are different. In the Attorney General’s view, “[t]o
succeed on a Brady claim, a defendant need only show that the new evidence
undermines faith in the verdict, a showing that does not require demonstrating
that defendant more likely than not would have been acquitted had the new
evidence been before the jury.” By contrast, the Attorney General asserts, a
defendant who moves for a new trial based on their own “discovery of new
evidence (untainted by prosecutorial error)” must “show that this new evidence
‘probably,’ that is, more likely than not, would have resulted in an acquittal.”
The Attorney General nonetheless argues that the Appellate Division reached
the correct result because Waller provided the “critical statement -- that she
had seen defendant holding a gun” -- long “before the shoplifting charge
15
arose,” and there was no evidence that she testified at trial “in order to secure
favorable treatment” on that charge.
The ACDL disagrees, contending that “the Appellate Division correctly
concluded that the materiality standard is the same for Brady and Carter.” The
ACDL points to our decision in State v. Ways, 180 N.J. 171 (2004), asserting
that it “interchangeably used the ‘probably’ language from Carter and the
‘probability’ language from Brady . . . demonstrating the standards are the
same.”
III.
A.
We review de novo the Appellate Division’s determination of “what
legal standard governs a Brady claim.” State v. Marshall, 148 N.J. 89, 185
(1997). Whether evidence is material for Brady purposes is a mixed question
of law and fact. Ibid. We defer to “the supported factual findings of the trial
court,” and review de novo the “application of any legal rules to such factual
findings.” State v. Harris, 181 N.J. 391, 416 (2004).
B.
In Brady v. Maryland, the United States Supreme Court held “that the
suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to
16
punishment.” 373 U.S. at 87. The Court later expanded Brady to apply to
“impeachment evidence as well as exculpatory evidence” known to police
investigators or to prosecutors, even if defendant submits no request. Strickler
v. Greene, 527 U.S. 263, 280-81 (1999).
Although, in modern parlance, “the term ‘Brady violation’ is sometimes
used to refer to any breach of the [prosecution’s] broad obligation to disclose
exculpatory evidence -- that is, to any suppression of so-called ‘Brady
material,’” it is useful to recall that there is not an actual “‘Brady violation’
unless the nondisclosure was so serious that there is a reasonable probability
that the suppressed evidence would have produced a different verdict.” Id. at
281 (footnote omitted).
There are thus three elements to a Brady claim: (1) “The evidence at
issue must be favorable to the accused, either because it is exculpatory, or
because it is impeaching”; (2) the “evidence must have been suppressed by the
State, either willfully or inadvertently”; and (3) “prejudice must have ensued.”
Id. at 281-82. The third component, prejudice, is also known as the materiality
requirement. Id. at 282; see also State v. Martini, 160 N.J. 248, 268 (1999) (to
establish a Brady violation, a defendant must show three things: “(1) the
prosecution suppressed evidence; (2) the evidence is favorable to the defense;
and (3) the evidence is material”).
17
The materiality inquiry lies at the center of this case. We therefore
discuss its evolution in some depth.
Brady itself did not set forth any test for materiality. The Supreme
Court likewise did not settle on a test in its next major Brady case, United
States v. Agurs, except to clarify that “[i]f the standard applied to the usual
motion for a new trial based on newly discovered evidence were the same
when the evidence was in the State’s possession as when it was found” by the
defendant from a “neutral source, there would be no special significance to the
prosecutor’s obligation to serve the cause of justice.” 427 U.S. 97, 111 (1976).
Therefore, where the “evidence was available to the prosecutor and not
submitted to the defense,” the defendant “should not have to satisfy the severe
burden of demonstrating that newly discovered evidence probably would have
resulted in acquittal.” Ibid. (emphases added).
The Court elaborated on why the materiality standard that governed a
motion for a new trial based on newly discovered evidence (that the “newly
discovered evidence probably would have resulted in acquittal”) was
inappropriate for Brady claims, and also for ineffective assistance of counsel
claims, in Strickland v. Washington, 466 U.S. 668 (1984). Strickland
explained that “[t]he high standard for newly discovered evidence claims
presupposes that all the essential elements of a presumptively accurate and fair
18
proceeding were present in the proceeding whose result is challenged.” Id. at
694. Yet “[a]n ineffective assistance claim asserts the absence of one of the
crucial assurances that the result of the proceeding is reliable”: a competent
attorney. Ibid. Similarly, in Brady claims, the question is whether, without
the exculpatory evidence that was suppressed, the defendant “received a fair
trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles
v. Whitley, 514 U.S. 419, 434 (1995).
The Court therefore held that the “appropriate test for prejudice” for
ineffective assistance of counsel claims “finds its roots in the test for
materiality of exculpatory information not disclosed to the defense by the
prosecution.” Strickland, 466 U.S. at 694. In other words, to demonstrate
prejudice, or materiality, a “defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Ibid. The
Court emphasized that this standard can be satisfied “even if the errors of
counsel cannot be shown by a preponderance of the evidence to have
determined the outcome.” Ibid.
The next year, the Supreme Court confronted head on “the standard of
materiality to be applied in determining whether a conviction should be
19
reversed because the prosecutor failed to disclose requested evidence that
could have been used to impeach Government witnesses.” Bagley, 473 U.S. at
669. Although the Court issued four separate opinions, five Justices agreed on
the Strickland standard: for purposes of “prosecutorial failure to disclose
evidence favorable to the accused,” “evidence is material only if there is a
reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” Id. at 682 (opinion of
Blackmun, J.); accord id. at 685 (White, J., concurring in part and concurring
in the judgment). We explicitly adopted the Bagley standard in State v.
Knight, 145 N.J. 233, 246-48 (1996).
In Kyles v. Whitley, the Supreme Court emphasized four aspects of
Bagley materiality. 514 U.S. at 434. First, as the Court underscored in Agurs
and Strickland, “a showing of materiality does not require demonstration by a
preponderance that disclosure of the suppressed evidence would have resulted
ultimately in the defendant’s acquittal.” Ibid. Instead, the “touchstone of
materiality is a ‘reasonable probability’ of a different result.” Ibid. In this
context, “the adjective” reasonable “is important. The question is not whether
the defendant would more likely than not have received a different verdict with
the evidence, but whether in its absence he received a fair trial, understood as a
trial resulting in a verdict worthy of confidence.” Ibid.
20
Second, materiality “is not a sufficiency of evidence test. A defendant
need not demonstrate that after discounting the inculpatory evidence in light of
the undisclosed evidence, there would not have been enough left to convict.”
Id. at 434-35; see also id. at 453 (“[T]he question is not whether the State
would have had a case to go to the jury if it had disclosed the favorable
evidence, but whether we can be confident that the jury’s verdict would have
been the same.”).
Third, once a court has found all elements of a Brady violation,
including materiality, “there is no need for further harmless-error review.” Id.
at 435. And fourth, although evidence suppressed by the prosecution is
“considered collectively, not item by item,” “the Constitution is not violated
every time the government fails or chooses not to disclose evidence that might
prove helpful to the defense.” Id. at 436-37.
In Strickler v. Greene, the Supreme Court underscored that the test is not
whether using the suppressed evidence to “discredit[]” a witness’s testimony
“might have changed the outcome of the trial.” 527 U.S. at 289 (emphasis
added). And it is not whether there is a “reasonable possibility” that
discrediting that witness’s testimony “might have produced a different result.”
Id. at 291. Instead, petitioner must show “that there is a reasonable probability
21
that his conviction or sentence would have been different had [the Brady]
materials been disclosed.” Id. at 296 (emphasis added).
C.
State v. Carter, on the other hand, addresses situations in which a
defendant comes forward after trial with newly discovered evidence that did
not come from the prosecution. 85 N.J. at 313. For a new trial to be granted
under Carter, “the new evidence must be (1) material to the issue and not
merely cumulative or impeaching or contradictory; (2) discovered since the
trial and not discoverable by reasonable diligence beforehand; and (3) of the
sort that would probably change the jury’s verdict if a new trial were granted.”
Id. at 314 (emphasis added). That test, we noted in Carter, “is more stringent”
than the “Brady analysis.” Ibid.
The roots of the Carter test go back more than a century. Carter cited
State v. Bunk, which similarly held that in order to be entitled “to a new trial
on the ground of newly discovered evidence,” a defendant must prove (1) that
the new evidence is “material to the issue and not merely cumulative, nor
impeaching nor contradictory; (2) that it has in fact been discovered since the
former trial and could not have been discovered before such trial by the
exercise of due diligence; (3) that it would probably change the result if a new
trial was granted.” 4 N.J. 482, 486 (1950). And Bunk cited older cases,
22
including Christie v. Petrullo, 101 N.J.L. 492, 494 (Sup. Ct. 1925) (holding
that “[n]ew trials on the ground of newly discovered evidence” should be
granted only where (1) “the evidence would probably have changed the result”
at trial; (2) “due diligence was exercised by the party applying for a new trial”;
and (3) “the evidence discovered is not merely cumulative”) and Paradise v.
Great Eastern Stages, Inc., 114 N.J.L. 365, 367 (E. & A. 1935) (“New trials
are not to be favored even on the ground of newly discovered evidence unless
the court feels that the evidence, newly discovered, more than likely would
change the result and that it could not have been presented at the trial by the
exercise of ordinary diligence.” (emphasis added)).
IV.
A.
We agree with the parties that the Appellate Division erred in holding
that the Brady and Carter materiality standards are the same.
For Brady claims, i.e., claims of “prosecutorial failure to disclose
evidence favorable to the accused,” evidence is material “if there is a
reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” Bagley, 473 U.S. at 682
(opinion of Blackmun, J.) (emphasis added); accord id. at 685 (White, J.,
concurring in part and concurring in the judgment); Knight, 145 N.J. at 246-23
48. On the other hand, for Carter claims, or claims of newly discovered
evidence that does not come from the prosecution, evidence is material if it is
“of the sort that would probably change the jury’s verdict.” Carter, 85 N.J. at
314 (emphasis added).
We heed Justice Souter’s caution that the word “probability” “is
naturally read as the cognate” of the word “probably” and can thus be
“confused with” it. Strickler, 527 U.S. at 300 (Souter, J., concurring in part
and dissenting in part). We therefore aim to clarify the difference between the
two.
“Probability” means “the extent to which something is probable” or “the
likelihood of something happening or being the case.” New Oxford American
Dictionary 1391 (3d ed. 2010). Probability is a noun. As the Supreme Court
explained in Kyles, if there is an adjective that modifies the noun, “the
adjective is important.” 514 U.S. at 434.
Indeed, when it comes to “probability,” the adjective makes all the
difference. A “fair probability,” a “small probability,” and a “high
probability” mean vastly different things. If there is a “low” probability of
rain, a prudent person may leave their umbrella at home. If there is a “strong”
probability of rain, that person may well grab an umbrella to avoid getting
soaked.
24
The adjective -- or modifier -- applied to the word “probability” defines
the degree of the probability at issue. For Brady claims, that modifier is
“reasonable” -- and a “reasonable probability” that the “‘result of the
proceeding would have been different,’” does not require a defendant to show
that the verdict “more likely than not” would have been different, or to
“demonstrat[e] by a preponderance” that the verdict would have been different.
Id. at 433-34 (quoting Bagley, 473 U.S. at 682).
The “widely used standard for assessing motions for a new trial based on
newly discovered evidence,” however, generally does require a showing that
the new evidence “more likely than not” would, or “by a preponderance of the
evidence” would, change the outcome of the case. Strickland, 466 U.S. at 693-94.
As used by courts, the word “probably” often means “more likely than
not.” See, e.g., Schlup v. Delo, 513 U.S. 298, 327 (1995) (a habeas petitioner
who must “show that a constitutional violation has probably resulted in the
conviction of one who is actually innocent . . . must show that it is more likely
than not that no reasonable juror would have convicted him in the light of the
new evidence” (emphases added) (quotation omitted)); DCPP v. J.R.-R., 248
N.J. 353, 376 n.11 (2021) (“The preponderance of the evidence standard is
satisfied by ‘that amount of evidence that causes [the factfinder] to conclude
25
that the allegation is probably true. To prove an allegation by the
preponderance of the evidence, a party must convince [the factfinder] that the
allegation is more likely true than not true.’” (alterations in original)
(emphases added) (quoting Model Jury Charges (Civil), 1.12H,
“Preponderance of the Evidence” (approved Nov. 1998)); Sawyer v. Whitley,
505 U.S. 333, 366 (1992) (Blackmun, J., concurring) (“The defendant must
show that he is probably -- that is, more likely than not -- ‘innocent of the
death sentence.’” (emphases added)).
That is the case with Carter, which, as earlier noted, mirrors the “would
probably change the result” formulation in Bunk, which itself relies on the
“more than likely would change the result” standard in Paradise. See Carter,
85 N.J. at 314 (citing Bunk, 4 N.J. at 486); Bunk, 4 N.J. at 486 (citing
Paradise, 114 N.J.L. 365); Paradise, 114 N.J.L. at 367 (“New trials are not to
be favored even on the ground of newly discovered evidence unless the court
feels that the evidence, newly discovered, more than likely would change the
result . . . .”).
Dictionary definitions likewise support interpreting “probably” to mean
“more likely than not.” See New Oxford American Dictionary 1391 (3d ed.
2010) (defining “probably” as an adverb meaning “almost certainly; as far as
one knows or can tell”); The Merriam Webster Dictionary 397 (2019)
26
(defining “probably” as another form of “probable” meaning “apparently
presumably true” or “likely to be or become true or real”).
We therefore disagree with the Appellate Division’s conclusion that
there is “no practical difference between the materiality/harmless error
elements set forth in the Brady and Carter formulations.” Allen, 482 N.J.
Super. at 164. When it comes to materiality, “probably” or “more likely than
not” is a more demanding standard than “reasonable probability.”
We agree with the ACDL that some of our prior cases may have
introduced confusion, but we have never held that the materiality tests for
Brady and Strickland are identical to the materiality test in Carter. We clarify
today that they are not.
Ways considered a Carter motion for a new trial based on newly
discovered evidence: statements from witnesses implicating a different person
in the murder. 180 N.J. at 173. The body of the opinion discussed the Carter
standard in depth, repeatedly explaining that the third prong is “whether the
evidence is ‘of the sort that would probably change the jury’s verdict if a new
trial were granted.’” Id. at 189 (quoting Carter, 85 N.J. at 314); see also id. at
187 (same); id. at 191-92 (“[T]he reviewing court must engage in a thorough,
fact-sensitive analysis to determine whether the newly discovered evidence
would probably make a difference to the jury.”). And the Court ultimately
27
held that “[t]he new evidence” put forward by the defendant, “in our view,
would probably change the outcome of the case.” Id. at 195.
But, as the ACDL points out, in framing our holding, we also used the
word “probability” twice: “we . . . hold that the newly discovered evidence
presented at the PCR hearing creates a probability that a jury would return a
verdict different from the one reached at the first trial,” and “[w]e conclude
that there is a probability -- not a certainty -- that a new jury would find
Anthony Ways not guilty of the crime for which he is imprisoned.” Id. at 197.
In State v. Allegro, we considered an ineffective assistance of counsel
claim. 193 N.J. 352, 356 (2008). We correctly quoted Strickland’s prejudice
prong, which, as earlier noted, is the same as Brady’s test for materiality:
“there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. at 367 (emphases
added) (quoting State v. Castagna, 187 N.J. 293, 315 (2006) (quoting, in turn,
Strickland, 466 U.S. at 694)). However, we then stated:
in determining whether those additional witnesses are
sufficient to prove to a reasonable probability that,
absent counsel’s failure to call those witnesses, the
outcome of defendant’s trial would have been different,
we are guided, in part, by the standard applicable to
claims of newly discovered evidence, that is, “that the
evidence ‘would probably change the jury’s verdict if a
new trial were granted.’”
28
[Id. at 370 (emphasis added) (quoting Ways, 180 N.J.
at 187 (quoting, in turn, Carter, 85 N.J. at 314)).]
That was the first time we quoted Carter’s materiality test (“would
probably change the jury’s verdict”) in the context of assessing prejudice
under Strickland (“reasonable probability that . . . the result of the proceeding
would have been different”). Nonetheless, we ultimately concluded, correctly,
that even had the witnesses been called, there was no “reasonable probability
that . . . the result of defendant’s trial would have been different.” Id. at 370-71.
We then relied on Allegro’s recitation of the Carter standard in State v.
Gideon, another ineffective assistance of counsel case about the failure to call
alibi witnesses at trial. 244 N.J. 538, 551-53 (2021). After correctly stating
the Strickland test -- that a “defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different,” id. at 551 (quoting Strickland, 466
U.S. at 694) -- and block-quoting the above language from Allegro, id. at 552,
we concluded that defendant had not shown that either of the witnesses’
testimony “would probably change the jury’s verdict if a new trial were
granted,” id. at 561 (quoting Allegro, 193 N.J. at 370 (quoting, in turn, Ways,
180 N.J. at 187)).
29
To clear up any confusion from cross quotations in Ways, Allegro, or
Gideon, we hold today that “would probably change the jury’s verdict” is a
more stringent standard than “a reasonable probability” that the jury’s verdict
would change.
B.
Although the Appellate Division erred in holding that the standards for
Brady and Carter materiality are the same, we agree with the State and the
Attorney General that the Appellate Division reached the correct result
because defendant has not met the Brady materiality standard. We accordingly
affirm the judgment of the Appellate Division.
Assuming for the sake of argument, as the Appellate Division did, that
defendant has met Brady’s first two prongs, he is unable to demonstrate that
Waller’s 1991 plea form had a “reasonable probability” of changing the jury’s
guilty verdict.
Defendant argues that “Ruby Waller’s undisclosed plea agreement was
favorable evidence” that he could have used to impeach Waller’s “credibility
by suggesting that she had a self-interested motivation to provide testimony
favorable to the State in the hopes of getting leniency” on her “unresolved
shoplifting charge.” According to defendant, had he known that information at
trial, he could have suggested that “Waller’s testimony was motivated by her
30
interest in currying favor with the State in exchange for her testimony”
because she “had previously received leniency for doing just that.” In that
way, defendant contends, Waller’s 1991 plea agreement fills “a missing gap in
[his] defense” that “would have drastically changed the contours of the case”
by explaining why Waller was “lying during her trial testimony” in “hope[s] of
currying favor with the State.”
As the federal district court held, there are several problems with this
theory. As an initial matter, Waller originally told police that she saw
defendant carrying a gun on October 27, 1997, approximately eight months
before she was arrested for shoplifting on June 21, 1998. At that time, she had
no open charges on which to possibly seek leniency from the State. 2 See
Allen, 2015 U.S. Dist. LEXIS 38937, at *10-12 (emphasizing that Waller gave
her formal statement to the police “at a time when no charge was pending”).
2
Defendant argues that Waller’s statement “made at the police station . . . [was] nothing more than her attempt to garner the same kind of favorable treatment that she received from the prosecutor back in 1991 by giving a version of events most favorable to the State,” and Waller’s only statements “which should be credited as accurate . . . were those made . . . when she had nothing to gain: her statements in the anonymous 911 call, and her statements to defense investigators.” (emphasis omitted). Defendant overlooks that Waller had no pending charge when she gave the formal statement at the police station on October 27, 1997. She therefore had nothing to gain by telling police that she saw defendant holding a gun.
31
She then testified consistently at trial on January 13, 1999, six months
after her shoplifting arrest. However, as Waller testified at trial, the
shoplifting charge was pending in municipal court. Waller was not
represented by counsel (and indeed was not entitled to have an attorney
appointed), had never spoken to the prosecutor about the case, had never asked
to receive any benefit related to the case, and had done nothing to connect the
shoplifting charge to her testimony at defendant’s trial. Ibid. (explaining that
at the time she testified at defendant’s trial, Waller had not “consulted with
counsel or spoken to the municipal prosecutor about” the shoplifting charge,
and “had not made any arrangement to obtain any benefit in connection with
her testimony in [defendant’s] murder case”).
It would have been particularly nonsensical for Waller to perjure herself
at defendant’s trial in the hopes of gaining leniency on a municipal court
shoplifting charge for two additional reasons. First, in 1998, shoplifting was a
disorderly persons offense, not a crime, with a maximum punishment of a $500
fine. See N.J.S.A. 2C:20-11 (1998). Perjury, on the other hand, was and
remains a third-degree crime with a maximum punishment of five years’
imprisonment. See N.J.S.A. 2C:28-1(a) (perjury) and id. (1998); N.J.S.A.
2C:43-6(a)(3) (sentence range) and id. (1998). Defendant does not explain
32
why Waller would subject herself to up to five years’ imprisonment to lower a
$500 fine.
Second, we agree with the Attorney General that “[i]f anything, Waller’s
prior experience striking a plea deal would increase the odds that she
understood how such deals work -- namely, that a deal is struck before actually
testifying, and that you lose that leverage if you do not.” In other words, if
Waller’s 1991 plea deal taught her anything, it was likely that any exchange of
testimony for leniency should be formalized before the testimony is offered. 3
Although the less stringent Brady standard requires only “a reasonable
probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different,” here, there is no such reasonable
probability. Instead, we are confident that even if Waller’s 1991 plea form had
been disclosed to the defense, the jury’s verdict would have been the same.
3
Defendant also argues that “defense counsel was able to characterize Whitfield as having testimony motivated by self-interest,” and suggest that Whitfield “expected leniency in exchange for [her] testimony” “but could not argue the same for Waller.” According to defendant, “had [the defense] been properly apprised of the fact that Waller previously received leniency in exchange for testimony, counsel could have easily made the same argument for Waller.” But there was no evidence that Whitfield had ever received leniency in exchange for testimony in the past. Why defense counsel could argue that Whitfield was seeking to curry favor with the State, even though she had no prior cooperating plea agreement, but could only make such an argument for Waller if he had the prior cooperating plea agreement in hand, is unclear.
33
V.
For the foregoing reasons, the judgment of the Appellate Division is
affirmed as modified.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, PIERRELOUIS, FASCIALE, NORIEGA, and HOFFMAN join in JUSTICE WAINER
APTER’s opinion.
34