Prosecutor’s failure to disclose a digital in-car camera recording of defendant’s alleged confession constituted a Brady violation and warranted reversal of one count. Harrison was charged with various assault, firearm, and criminal threat offenses after an incident in which he pointed a gun at his cousin and allegedly threatened to kill him. At his first trial, Harrison represented himself. He stipulated that he was a convicted felon and admitted several times that he possessed the gun, but maintained that he did not assault anyone with the firearm. According to officers, Harrison was advised of and waived his Miranda rights and confessed that the gun was his and that he used it in the altercation. The jury convicted Harrison of possessing a firearm after a felony conviction and criminal threats but could not come to a unanimous verdict on the assault charges. At the second trial, Harrison’s attorney discovered that there was a recording of the police interview showing the officer continued to question Harrison after he invoked his right to remain silent. The court excluded Harrison’s statement, and the jury returned not guilty verdicts on the assault charges. Harrison moved for a new trial on his convictions for being a felon in possession of a firearm and criminal threats at his first trial on the theory that the prosecution committed Brady error by not disclosing the video. The court denied the motion based on Harrison’s failure to object to the admission of the statement. Harrison appealed. Held: Reversed in part. The prosecution has a sua sponte constitutional duty to disclose material exculpatory evidence, including potential impeaching evidence (Brady v. Maryland (1963) 373 U.S. 83.) There is no authority suggesting that Brady error is waived by a defendant’s failure to object. Here, the video recording went to the heart of the case regarding the criminal threats, and its admission at the first trial materially affected the outcome regarding this charge. Based on this, the Court of Appeal reversed the criminal threats conviction. However, the court did not reverse the felon in possession of a firearm conviction because Harrison admitted several times to the jury that he was a felon in possession of a firearm.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B272132.PDF