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*********************************************** 
STATE OF CONNECTICUT v. MICHAEL

ANTHONY GUERRERA

(SC 19785)

Palmer, McDonald, Robinson, D’Auria,

Mullins, Kahn and Ecker, Js.*

Syllabus

Pursuant to Brady v. Maryland (373 U.S. 83), the state has an obligation

to disclose to an accused evidence that is both favorable to the defense

and material to the case.

Convicted of the crimes of assault in the first degree, conspiracy to commit

assault in the first degree, and tampering with physical evidence, and

found in violation of probation, the defendant appealed to the Appellate

Court, claiming, inter alia, that the trial court improperly had granted

in part motions by the state and the Department of Correction to quash

a subpoena issued by the defendant to the department that sought,

pursuant to Brady, the production of audio recordings made by the

department of four codefendants’ calls and visits while they all were in

the custody of the Commissioner of Correction. The defendant and his

four codefendants had been incarcerated in lieu of bail pending trial and,

in accordance with department policy, were notified that conversations

during all inmate calls and noncontact visits were automatically

recorded. Such recordings ordinarily remained in storage for one year,

after which time they were automatically erased, unless the department

manually preserved them beyond the one year period. Following a

request by the office of the state’s attorney that the department record

the calls and visits of the codefendants, the department assigned a

monitor to the case, and, in accordance with department practice, the

monitor reviewed approximately 10 percent of the audio recordings of

those calls and visits, which represented the calls and visits the department believed to be most likely to bear some relevance to the pending

criminal case. If the monitor identified a call or visit that may contain

information relevant to the case, the monitor would preserve the

recording of that call or visit beyond the one year period and summarize

its contents for the state. In response to the defendant’s subpoena, the

department preserved 1552 recordings of the codefendants’ calls and

visits that remained in storage. The state and the department claimed

in their motions to quash that the defendant’s subpoena was issued

without any indication that the recordings contained exculpatory information and, further, that producing the recordings would unduly burden

the department because its policy required it to review each recording

in its entirety prior to its disclosure to an outside party. The state further

claimed that the unreviewed recordings were not part of the state’s

investigation but were identified and ultimately preserved at the express

request of the defendant. The trial court granted the motions to quash

with respect to the 1552 recordings that were preserved in response to

the defendant’s subpoena but that had not been reviewed, but ordered

the department to provide to the defendant any recordings of the codefendants that the department had reviewed and that concerned the

pending case. The trial court rejected the defendant’s claim that Brady

also required the department to provide the 1552 recordings that the

department had not reviewed so that he could review them himself. In

addressing the defendant’s Brady claim on appeal, the Appellate Court

appeared to assume without deciding that the 1552 recordings, none of

which had been reviewed by the department or the state, were part of

the state’s investigatory file and that the state could be charged with

constructive knowledge of their contents. The Appellate Court nevertheless concluded that the state’s attorney had no obligation to examine

the state’s own investigatory file because the defendant had not made

an adequate showing that the file contained exculpatory information.

On the granting of certification, the defendant appealed to this court.

Held that, in the absence of an appropriate showing by the defendant of

at least some likelihood that the 1552 recordings contained exculpatory

information, the state had no obligation, under the particular facts of
this case, either to examine those recordings or to obtain and make

them available to the defendant for his review, and, accordingly, the

Appellate Court correctly concluded that the trial court had properly

granted in part the state’s and the department’s motions to quash the

defendant’s subpoena: the assumption that the 1552 recordings, none

of which was reviewed by the department, were identified and preserved

in furtherance of the state’s investigation and were thus part of the

state’s investigatory file was contradicted by the record, there having

been no evidence to contradict the monitor’s testimony that the 1552

recordings were preserved in accordance with the department’s obligation in light of the defendant’s subpoena rather than as part of the

department’s monitoring process as requested by the state’s attorney;

moreover, because it was undisputed that the department reviewed

only 10 percent of the recordings in response to the state’s request for

monitoring and the state never pursued a request that the department

review all of the recordings or undertook to obtain and review any of

the remaining recordings, the state’s investigation with respect to the

recordings in the department’s possession was limited to the 10 percent

of the recordings that the department did review, and the trial court

correctly determined that the state’s obligations under Brady extended

to those particular recordings.

(One justice concurring separately)

Argued September 21, 2017—officially released May 7, 2019

Procedural History

Two substitute informations charging the defendant,

in the first case, with the crimes of assault in the first

degree, conspiracy to commit assault in the first degree,

unlawful restraint in the first degree and tampering with

physical evidence, and, in the second case, with the

crimes of murder, conspiracy to commit murder, felony

murder, kidnapping in the first degree and conspiracy

to commit kidnapping in the first degree, and information, in a third case, charging the defendant with violation of probation, brought to the Superior Court in the

judicial district of New Britain where the cases were

consolidated; thereafter, the court, Alander, J., granted

in part the motions to quash a subpoena duces tecum

filed by the state et al.; subsequently, the first two cases

were tried to the jury before Alander, J.; verdicts of

guilty of assault in the first degree, conspiracy to commit assault in the first degree and tampering with physical evidence; thereafter, the court declared a mistrial

as to the charges of murder, felony murder, kidnapping

in the first degree and conspiracy to commit kidnapping

in the first degree and granted the defendant’s motion

to dismiss the charge of conspiracy to commit kidnapping in the first degree; subsequently, the third case

was tried to the court; thereafter, the court rendered

judgment revoking the defendant’s probation and rendered judgments in accordance with the verdicts, and

the defendant appealed to the Appellate Court, Gruendel, Beach and Flynn, Js., which affirmed the trial

court’s judgments, and the defendant, on the granting

of certification, appealed to this court. Affirmed.

John L. Cordani, Jr., with whom, on the brief, was

Damian K. Gunningsmith, for the appellant (defendant).

James A. Killen, senior assistant state’s attorney,

with whom, on the brief, were Brian Preleski, state’s
attorney, Jonathan M. Sousa, former special deputy

assistant state’s attorney, and John H. Malone, supervisory assistant state’s attorney, for the appellee (state).
Opinion

PALMER, J. It is the policy and practice of the Department of Correction (department) to automatically

record the telephone calls and noncontact visits of all

inmates, each of whom is given prior notice that such

calls and visits are being recorded. The recordings are

made for a variety of reasons related to prison safety

and administration, and not as part of any investigation

into the crimes with which the various inmates have

been charged. From time to time, however, the department, upon express request of the state’s attorney

responsible for prosecuting a particular criminal case,

will review some but not all of the calls and visits of

those inmates who have been charged in that case.

Because the department is acting as an investigative

arm of the state in conducting that review, the calls

and visits reviewed at the state’s attorney’s behest are

part of the state’s investigation into the case such that,

like all other material and information gathered or

developed as part of the investigation, those calls and

visits are subject to the disclosure requirements of

Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10

L. Ed. 2d 215 (1963).1 The sole issue presented by this

appeal is whether the inmates charged in such a case,

some of whose calls and visits have been reviewed by

the department, are entitled, under Brady, to a review

of all of those calls and visits even though the department has limited its review to only some of the recorded

conversations. We conclude that no such review is

required under the facts and circumstances of the present case.

The defendant, Michael Anthony Guerrera, and four

codefendants were charged with various offenses in

connection with the assault and murder of the victim,

Dylan Sherman. Following their arrest, they were

remanded to the custody of the Commissioner of Correction (commissioner) pending trial, at which time the

state requested that the department review the telephone calls and noncontact visits of the defendant and

his codefendants. In accordance with its practice, the

department reviewed only about 10 percent of those

voluminous calls and visits, which represented the calls

and visits believed by the department to be most likely

to bear some relevance to the pending criminal case.

Subsequently, the defendant, shortly before trial, issued

a subpoena to the department seeking, under Brady,

the production of more than 1500 audio recordings of

the telephone calls and noncontact visits of the defendant’s four codefendants that had been made and

retained by the department while those codefendants

remained in the commissioner’s custody prior to trial.2

The state and the department moved to quash the subpoena, claiming that it was overbroad in that it failed

to provide any reason to believe that the recordings

contained exculpatory information and, further, that
producing the recordings would place an undue burden

on the department because, before any such production, the department would be required to review each

recording to determine whether it contained any relevant evidence. The trial court granted in part the

motions to quash, concluding, inter alia, that, before

the department could be compelled to undertake such

an extensive review on the defendant’s behalf, the

defendant was required, in accordance with Brady, to

make an appropriate threshold showing that the

recordings contain evidence favorable to the defendant,

a showing that he concededly could not make. A jury

thereafter found the defendant guilty of assault in the

first degree in violation of General Statutes §§ 53a-59

(a) (1) and 53a-8, conspiracy to commit assault in the

first degree in violation of General Statutes §§ 53a-59

(a) (1) and 53a-48 (a), and tampering with physical

evidence in violation of General Statutes (Rev. to 2011)

§ 53a-155 (a) (1), and the trial court rendered judgments

in accordance with the verdicts.3

On appeal, the Appellate Court affirmed the judgments of the trial court; State v. Guerrera, 167 Conn.

App. 74, 120, 142 A.3d 447 (2016); and we granted the

defendant’s petition for certification to appeal, limited

to the question of whether the Appellate Court properly

determined ‘‘that the state’s attorney’s obligation to

review [the state’s] own investigatory file for Brady

. . . material . . . applies [only when] the defendant

can first make a ‘showing’ that the file contains exculpatory information . . . .’’ State v. Guerrera, 323 Conn.

922, 150 A.3d 1152 (2016). Upon further consideration

of the issue presented, however, it is apparent that the

certified question is predicated on an assumption that

is contradicted by the record, namely, that the

recordings at issue were part of the state’s investigatory

file; they were not a part of the investigation of the

state’s case against the defendant.4 Because those

recordings were not part of that file, we have no cause

to answer the question as certified. We must decide,

rather, whether the state had an obligation under Brady

to review the recordings nevertheless.5 We conclude

that the state had no such obligation under the particular facts of this case, and, for that reason, we affirm

the judgment of the Appellate Court.

The following undisputed facts and procedural history are relevant to our resolution of the present appeal.

On February 22, 2011, the victim was severely beaten

and then transported to a wooded area of Terryville

where he was bludgeoned to death. His body was found

the next day by a hiker, and, soon thereafter, the police

developed information that the victim had been murdered by the defendant and his brother, Dennis Guerrera, over a dispute involving money. On February 24,

2011, the two men, along with three others, were

arrested and charged with multiple offenses related to

the assault and murder of the victim.
Shortly after those arrests, an inspector from the

state’s attorney’s office requested that the department

monitor the telephone calls and noncontact visits of

the defendant and his four codefendants, all of whom

remained incarcerated in lieu of bail pending trial. This

request was handled in accordance with department

policy, pursuant to which all such inmate calls and visits

are automatically recorded with prior notice to every

inmate that his or her calls and visits are recorded

and subject to monitoring by the department.6 These

recordings are made for prisoner safety and a number

of administrative concerns, and are stored for a fixed

period of time on servers maintained by an outside

vendor. Prior to July, 2012, the vendor preserved the

recordings for ninety days, after which time they were

automatically erased. Thereafter, however, the department entered into a contract with a new vendor, which

was required to preserve the recordings for one year.

Both before and after July, 2012, however, to preserve

a recording beyond the automatic retention period, the

department had to save it to an external drive, which

is referred to as ‘‘locking’’ the call.

The department routinely receives requests from the

various state’s attorney’s offices and other investigative

agencies to monitor inmate telephone calls. After the

receipt of such a request, the department assigns an

individual telephone monitor to the case. Because the

department maintains that it is not feasible to monitor

or review every call of any particular inmate,7

the

department’s practice when monitoring calls for such

a requesting agency is to focus exclusively on inmate

calls occurring soon after that inmate was arrested and

incarcerated and shortly before and after the inmate’s

court dates because, in the view of the department,

those are the calls that typically yield information of

value to the requesting agency. The monitor assigned

to the request decides which calls to listen to, generally

without any input from the requesting agency, and will

lock a call only if it appears to contain information

related to the case. When such a call has been identified

and locked, the monitor summarizes its contents in a

written report, which is then forwarded to the

requesting agency. If the requesting agency wishes to

obtain a copy of any such recording, it may do so upon

request to the department in accordance with department policy.

The state’s request in the present case was assigned

to Officer Donald Lavery, a member of the department’s

Special Intelligence Unit. In keeping with department

practice, Lavery limited his review to those calls that

were made shortly after the individuals were incarcerated and before and after their court dates, a review

that comprised only about 10 percent of the calls of

the defendant and his codefendants. Lavery ultimately

prepared notes on only a handful of the calls, and he
forwarded those notes to the state’s attorney’s office.

The state, however, never sought to obtain a copy of

any of those calls because, after reviewing Lavery’s

notes, the state’s attorney determined that none of the

calls was either inculpatory or exculpatory. Moreover,

at no time did the state’s attorney seek to have the

department review additional calls or otherwise undertake to obtain copies of any such additional calls from

the department.

On June 27, 2011, defense counsel sent a letter to

the department ‘‘requesting that all phone calls of [the

defendant’s codefendants] be recorded and preserved.’’

The letter further stated that, ‘‘[a]t some point in the

future, I anticipate issuing subpoenas for the recordings

of these inmates’ calls.’’ On August 15, 2013, the defendant issued a subpoena to the department, directing

it to ‘‘produce copies of the [codefendants’] recorded

conversations, whether on the telephone or during

inmate visits . . . .’’ The state and the department

moved to quash the subpoena on the ground that it had

been issued without any indication that the recorded

conversations contain exculpatory material. They also

maintained that compliance with the subpoena would

place a significant and unreasonable burden on the

department due to the extensive number of recordings

involved, all of which, under department policy, would

have to be reviewed in their entirety before they could

be disclosed to an outside party, a process that,

according to the representations of the state’s attorney,

could take anywhere from 200 to 1000 hours, depending

on the length of the calls.8

The defendant filed an objection to the motions to

quash in which he asserted, inter alia, that he was in

possession of information that, during a recorded

prison visit between his brother, Dennis, and their

mother, Naomi Ball, Dennis had informed Ball that the

defendant was not involved in the victim’s murder. On

the basis of this information, the defendant claimed that

the exculpatory statement allegedly made by Dennis to

their mother provided reason to believe that the other

codefendants also might have revealed exculpatory

information during their phone calls or visits.

At the hearing on the motions to quash, Lavery testified that he had not locked any calls in response to the

state’s request for monitoring,9 but, after receiving the

defendant’s subpoena, he ‘‘went back and started locking’’ all of the codefendants’ calls that were still on the

server. A total of 1552 calls were ultimately locked.10

When the court asked whether he had listened to any

of the calls after they were locked in response to the

subpoena, Lavery responded that he had not. After

Lavery’s testimony that he had not locked any calls in

response to the state’s request for monitoring, the trial

court expressed confusion, stating that it was under

the impression that all of the codefendants’ calls were
locked as soon as the department received the state’s

request. Lavery explained that, because calls must be

locked ‘‘one at a time and it takes a very long time’’ to

lock a call, it is his general practice to lock only calls

that he has actually reviewed and that he believes may

contain information relevant to the case of interest. The

court then asked Lavery: ‘‘Oh, so they’re not automatically locked? . . . [Y]ou only lock the ones you’ve listened to if there’s something of note?’’ Lavery

responded, ‘‘right.’’ The court then stated: ‘‘So it’s not

accurate for me to think, which is what I thought, that

once the request comes in every call [is locked]. Nothing

like that was done?’’ Lavery responded, ‘‘[n]o.’’ The

court then stated, ‘‘[s]o [all the older] calls are gone.

They’re not preserved. If [a call] was made in March

of 2011 [when the state requested monitoring] under

the old system, it would have [been] held for ninety

days. So they don’t exist anymore, right?’’ Lavery

responded, ‘‘[y]es.’’ Finally, the court asked Lavery

again why he had locked the 1552 calls at issue. Lavery

responded that he had locked them to comply with the

defendant’s subpoena ‘‘so we wouldn’t lose them,’’ to

which the court responded: ‘‘Okay. Understood.’’

Following the hearing on the motions to quash, the

trial court issued a memorandum of decision granting

the motions with respect to the 1552 calls that were

locked in response to the defendant’s subpoena but

remained unreviewed. In doing so, the court observed

that of the calls that Lavery had reviewed, but which

did not include any of the 1552 calls locked in response

to the defendant’s subpoena, only a few of them contained conversations that referred to the crime or otherwise related in some way to the defendant’s case. ‘‘Given

these statistics,’’ the court stated, ‘‘the defendant’s

request for documents is overbroad. It clearly sweeps

up calls that have no demonstrated relevance to the

matter before the court. It would also impose a substantial burden on [the department] to review each of these

[1552] calls to determine which calls contain relevant

statements.’’ In reaching its decision, the court rejected

the defendant’s contention that, because a few of the

calls that Lavery reviewed contained some information

that related generally to the case, it was reasonable to

infer that some of the 1552 calls would contain exculpatory material. The court stated that the defendant had

presented no evidence that the codefendants ‘‘did in

fact make any other calls containing relevant material,

other than those already identified by [the department]

and, if [they did], which calls contain [that] material.

The defendant seeks to obtain [more than 1500] calls in

the blind hope that some of them may contain relevant

material. That effort is a classic fishing expedition.’’

The trial court next addressed the defendant’s claim

that ‘‘he is entitled to obtain copies of all [1552] calls so

that he can review [them] for Brady material.’’ (Internal

quotation marks omitted.) The court observed that,
although the department ‘‘does not generally act as an

investigative arm of the state, it did assist the state’s

attorney’s office in the investigation of the crimes at

issue here.’’ Citing Kyles v. Whitley, 514 U.S. 419, 437,

115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995) (prosecutor

has duty to learn of any evidence favorable to defendant

that is known to others acting on government’s behalf),

and Demers v. State, 209 Conn. 143, 153, 547 A.2d 28

(1988) (same), the court then explained that, for Brady

purposes, the state’s disclosure obligation extends not

only to the office of the prosecutor but also to ‘‘law

enforcement personnel and other arms of the state

involved in the investigative aspects of a particular venture.’’ (Internal quotation marks omitted.) The court

further observed that, under United States v. Stewart,

433 F.3d 273, 298 (2d Cir. 2006), ‘‘[t]he relevant inquiry

for determining whether an individual or entity is an

arm of the prosecution for Brady purposes is what

the person did, not who the person is.’’ (Emphasis in

original; internal quotation marks omitted.)

The trial court continued: ‘‘The state’s attorney’s

office specifically requested that [the department] monitor and review the calls . . . of the [defendant and

his] four codefendants. In response to that request,

[the department] reviewed approximately 10 percent

of [those] calls for any information related to the alleged

crimes. In a number of instances, [the department] sent

notes to the state’s attorney’s office detailing the content of calls containing such information. Clearly, [the

department] was investigating aspects of the case on

behalf of the state’s attorney. Consequently, under the

facts here, the prosecutor’s obligation under Brady to

disclose exculpatory and favorable information to the

defendant extends to information known to [the

department].’’

Applying these principles to the present case, the

court determined that, because Lavery, at the prosecution’s request, had reviewed approximately 10 percent

of the codefendants’ calls, the state’s duty under Brady

to disclose exculpatory information extended to those

calls. The court also concluded, however, that the

remaining 90 percent of the calls fell outside the state’s

Brady obligations because those calls were never

reviewed by the department or the state as part of the

investigation of the defendant’s case, and, therefore,

those calls could not be known to the department, or

constructively known by the state’s attorney. Necessary

to this conclusion was the court’s implicit finding that

those calls were not part of the state’s investigatory file.

Accordingly, the court denied the motions to quash

in part and ordered the department to provide to the

defendant ‘‘any recorded calls of the codefendants [that

the department] has reviewed and [that] concern the

pending case . . . including but not limited to: (1) the

recorded call of the visit by . . . Ball with Dennis Guer-
rera in which [Dennis] Guerrera [purportedly] discusses

the involvement or lack of involvement of the defendant

in these crimes, and (2) the recorded calls for which [the

department] has provided notes to the state’s attorney’s

office outlining the substance of the calls because the

calls refer to matters related to [the] case.’’11

The trial court, however, rejected the defendant’s

contention that Brady also required the department to

turn over to the defendant the 1552 recordings that

Lavery did not listen to so that the defendant himself

could review them for possible Brady material. The

court explained that, even if there were legal authority

for the defendant’s request, which there is not; see, e.g.,

Pennsylvania v. Ritchie, 480 U.S. 39, 59, 107 S. Ct. 989,

94 L. Ed. 2d 40 (1987) (‘‘A defendant’s right to discover

exculpatory evidence does not include the unsupervised authority to search through the [government’s]

files. . . . [T]his court has never held . . . that a

defendant alone may make the determination as to the

materiality of the information. Settled practice is to the

contrary.’’ [Citations omitted.]); the defendant would

still be required to make a threshold showing of materiality before the department could be compelled to produce the recordings, a hurdle that the defendant

admittedly could not surmount. See, e.g., id., 58 n.15

(‘‘[a defendant], of course, may not require the trial

court to search through the [government’s] file without

first establishing a basis for his claim that it contains

material evidence’’); United States v. Brandon, 17 F.3d

409, 456 (1st Cir.) (‘‘to establish a violation of Brady, a

defendant must provide the court with some indication

that the materials to which he . . . needs access contain material and potentially exculpatory evidence’’),

cert. denied sub nom. Granoff v. United States, 513

U.S. 820, 1155 S. Ct. 80, 130 L. Ed. 2d 34 (1994), and

cert. denied sub nom. Ward v. United States, 513 U.S.

820, 1155 S. Ct. 80, 130 L. Ed. 2d 34 (1994); United

States v. Pou, 953 F.2d 363, 367 (8th Cir.) (Brady does

not permit defendant ‘‘to conduct an in camera fishing

expedition through the government’s files’’), cert.

denied, 504 U.S. 926, 112 S. Ct. 1982, 118 L. Ed. 2d 580

(1992), and cert. denied sub nom. Mondejar v. United

States, 504 U.S. 926, 112 S. Ct. 1982, 118 L. Ed. 2d 580

(1992), and cert. denied, 504 U.S. 926, 112 S. Ct. 1983,

118 L. Ed. 2d 581 (1992); United States v. Navarro,

737 F.2d 625, 631 (7th Cir.) (‘‘Mere speculation that

a government file may contain Brady material is not

sufficient to require a remand for in camera inspection,

much less reversal for a new trial. A due process standard [that] is satisfied by mere speculation would convert Brady into a discovery device and impose an undue

burden upon the [D]istrict [C]ourt.’’), cert. denied, 469

U.S. 1020, 105 S. Ct. 438, 83 L. Ed. 2d 364 (1984), and

cert. denied sub nom. Mugercia v. United States, 469

U.S. 1020, 105 S. Ct. 438, 83 L. Ed. 2d 364 (1984).

Several weeks after the court’s ruling on the motions
to quash, defense counsel informed the court that he

had reviewed the recording of the conversation

between the defendant’s brother, Dennis, and their

mother, which had been turned over to him pursuant to

the court’s ruling, and that it did not contain exculpatory

material as he had been led to believe. At the same

time, defense counsel asked that all of the 1552

recordings that had not been turned over to the defense

be compiled onto compact discs and marked as an

exhibit for purposes of appeal, if necessary. The state

opposed the defendant’s request, arguing that such an

order would place an onerous and undue burden on

the department because the department, in accordance

with established policy, would be required to review

each of the recordings to prevent disclosure of irrelevant, sensitive or personal information, such as inmate

medical information. The state also expressed concern

that, if the department were to review any recordings

not already reviewed, the state could be charged with

constructive knowledge of their contents in light of

the court’s prior ruling that the department was an

investigative arm of the state to the extent that it actually had reviewed calls of the codefendants. To address

these concerns of the state, the court ordered that the

1552 recordings be filed with the court under seal so

as to relieve the department of the need to review them

prior to submitting them to the court. The court further

stated that, ‘‘if [the department], of its own volition,

decides to review these 1552 calls for its own administrative purposes, that does not expand the state’s attorney’s Brady obligation because it’s not being reviewed

for investigative purposes. It’s being reviewed for [the

department’s] own institutional needs.’’

The case then proceeded to trial, and the defendant

was convicted of assault in the first degree, conspiracy

to commit assault in the first degree and tampering

with physical evidence, and found in violation of probation. The trial court sentenced the defendant to a total

effective sentence of thirty-four years imprisonment,

followed by ten years of special parole.

The defendant appealed to the Appellate Court, claiming, inter alia, that, because all 1552 recordings were

part of the state’s investigatory file, the state had an

affirmative duty under Brady to review them, irrespective of the defendant’s inability to establish a reasonable

prospect that they contain exculpatory information.

The defendant argued that ‘‘[t]he state’s Brady obligation . . . extended to any exculpatory evidence produced by its investigation, including the [1552]

recordings,’’ and that the state was deemed to have

constructive knowledge of the contents of each of those

recordings, ‘‘regardless of whether the material [was]

actually . . . reviewed by the department or the state

. . . .’’ (Emphasis added.) State v. Guerrera, supra, 167

Conn. App. 86. The state responded that any of the 1552

calls that remained unreviewed were not ‘‘produced
by’’ or otherwise a part of the state’s investigation but,

rather, were identified and ultimately preserved under

seal at the express request of the defendant. See State v.

Guerrera, Conn. Appellate Court Briefs & Appendices,

February Term, 2016, State’s Brief pp. 18–19. Thus, the

state contended, any principal-agent relationship that

existed between the state and the department with

respect to the calls that the department did review did

not extend to those calls. Id., p. 19.

In addressing the defendant’s Brady claim, the Appellate Court appeared to assume without deciding that

the 1552 calls, none of which had ever been reviewed

by the department or the state, were part of the state’s

investigatory file such that the state could be charged

with constructive knowledge of their contents. State v.

Guerrera, supra, 167 Conn. App. 88. The Appellate

Court explained, however, that, ‘‘[s]imply because the

state and the department might be deemed to have

constructive knowledge of the contents of the

recordings does not necessarily indicate that the

recordings in fact contained evidence favorable to the

defense, as required by the Brady test.’’ (Internal quotation marks omitted.) Id. Specifically, the Appellate

Court stated: ‘‘[T]here is nothing to indicate that the

evidence contained in the recordings is even potentially

helpful to the defendant. The defendant provided the

court with no evidence that any exculpatory information was recorded at all. Indeed, at the hearing on the

motion[s] to quash, counsel for the defendant conceded

that ‘I can’t cite anything exculpatory, [but] there may

very well be exculpatory information that is not being

turned over because nobody listened to it.’ ’’ Id., 90.

In support of its conclusion, the Appellate Court cited

State v. Colon, 272 Conn. 106, 267, 864 A.2d 666 (2004),

cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d

116 (2005), in which this court ‘‘distinguish[ed] between

[a] valid Brady violation claim [that] the state with[eld]

exculpatory information and [the] claim [of the defendant in Colon] that he was entitled to an opportunity

to sift through the records of the [O]ffice of the [C]hief

[S]tate’s [A]ttorney in search of a potential Brady violation.’’ (Emphasis omitted; internal quotation marks

omitted.) State v. Guerrera, supra, 167 Conn. App. 89.

In light of Colon, and because the present case is readily

distinguishable from cases, such as Demers v. State,

supra, 209 Conn. 143, that involve the state’s obligation

to secure the disclosure of Brady material located in

the files of the police department that conducted the

investigation of the case; see id., 153–54; the Appellate

Court concluded that the state had no duty ‘‘to conduct

a more thorough investigation into the voluminous

recordings preserved by the department.’’ State v. Guerrera, supra, 90. The Appellate Court reasoned that,

unlike the state’s attorney’s office in Demers that had

ready access to a report generated by the investigating

police department, the state in the present case did not
have such easy access to the contents of the conversations at issue. ‘‘Reviewing an easily available police

report; Demers v. State, supra, [153]; for exculpatory

information is a very different venture from ordering

the department to listen to more than 1000 phone calls,

none of which has been claimed to contain material

that would be useful to the defense.’’ (Internal quotation

marks omitted.) State v. Guerrera, supra, 90 n.3.

We granted the defendant’s petition for certification

to appeal, limited to the issue of whether the Appellate

Court correctly determined that the state’s attorney had

no obligation to examine ‘‘[the state’s] own investigatory file’’ for Brady material unless the defendant first

made an adequate showing that the file contains exculpatory information. State v. Guerrera, supra, 323 Conn.

922. On appeal, the defendant asserts, inter alia, that the

state’s attorney had a duty to review all 1552 recordings

because ‘‘the [department’s] choice to lock the calls was

made in furtherance of the [department’s] investigatory

efforts [on behalf of the state] and thus within the scope

of the agency found by the trial court.’’ The state argues

that the calls were not locked as part of the state’s

investigation but, rather, were locked in response to

the defendant’s subpoena, and were never reviewed,

and, consequently, they do not fall within the scope of

the agency found by the trial court. The state further

maintains that the defendant’s assertions to the contrary are ‘‘misleading and inconsistent with the record,’’

and that this court should reject the defendant’s

‘‘attempt to support his Brady claim . . . with the false

notion that the compiling of [the] unreviewed

recordings was the state’s doing . . . .’’

We begin our review of the defendant’s claim with a

summary of the law governing our disposition of that

claim. The state has a duty under Brady to disclose to

the accused evidence that is both favorable to the

defense and material to the case. E.g., Adams v. Commissioner of Correction, 309 Conn. 359, 369–70, 71 A.3d

512 (2013). As the state’s representative, the prosecutor

has a ‘‘broad obligation to disclose’’ Brady material

because principles of fundamental fairness demand no

less. Strickler v. Greene, 527 U.S. 263, 280–82, 119 S. Ct.

1936, 144 L. Ed. 2d 286 (1999). This obligation extends

to evidence favorable to the defense that is not in the

possession of the individual prosecutor responsible for

trying the case; indeed, the obligation may encompass

such evidence even if it is not known to the prosecutor.

Id., 280–81. More specifically, the prosecutor’s duty of

disclosure extends to Brady material that is ‘‘known

to the others acting on the government’s behalf in [the]

case,’’ including, but not limited to, the police. (Internal

quotation marks omitted.) Id., 281, quoting Kyles v.

Whitley, supra, 514 U.S. 437; see also Demers v. State,

supra, 209 Conn. 153 (‘‘[t]he [s]tate’s duty of disclosure

is imposed not only [on] its prosecutor, but also on the

[s]tate as a whole, including its investigative agencies’’
[internal quotation marks omitted]). In other words, the

prosecutor is deemed to have constructive knowledge

of Brady material possessed by those acting on the

state’s behalf. See, e.g., Demers v. State, supra, 153

(explaining that, if investigating agency were determined to be in possession of exculpatory material, then

court ‘‘would be compelled to conclude that, constructively, the [s]tate’s attorney had both access to and

control over’’ that material). Thus, the prosecutor has

a duty to learn of exculpatory evidence in the possession of any entity that is acting as an agent or arm of

the state in connection with the particular investigation

at issue. See Strickler v. Greene, supra, 281. Finally,

and importantly, ‘‘the propriety of imputing knowledge

[of exculpatory evidence] to the prosecution is determined by examining the specific circumstances of the

person alleged to be an arm of the prosecutor.’’ (Internal

quotation marks omitted.) United States v. Stewart,

supra, 433 F.3d 298.

Consistent with the state’s contention, it is apparent

that the certified question is predicated on a fundamental misapprehension of the record, namely, that the 1552

calls—none of which was reviewed by the department—were identified and preserved in furtherance of

the state’s investigation. When questioned by the trial

court about this precise issue, Lavery stated that he had

locked the calls solely to comply with the defendant’s

subpoena, in order to ensure that they would not be

erased pending a decision on the motions to quash.

Moreover, when Lavery was questioned by the department’s counsel, he was asked, ‘‘[w]as that part of the

regular monitoring process to lock those [1552 calls]?’’

After Lavery responded ‘‘no,’’ he was asked, ‘‘[o]r is

that specific to the subpoena [the defendant] sent?’’

Lavery responded, ‘‘I did it for the subpoena.’’ There is

nothing in the trial court record to contradict or otherwise call into question this clear and straightforward

testimony that the calls were preserved in accordance

with the department’s obligation in light of the subpoena that had been served on the department by the

defendant, and not as part of the department’s monitoring process as requested by the state’s attorney.

Furthermore, it is undisputed that the department

reviewed only approximately 10 percent of the calls in

response to the state’s request for monitoring. Because

the state never pursued a request that the department

review all of the codefendants’ calls and never itself

undertook to obtain and review any of the remaining

calls, the state’s investigation with respect to the

recordings in the department’s possession was limited

to the 10 percent of the calls that the department actually did review. Because that review was undertaken

by the department at the state’s request, the department

was acting as an agent or arm of the state in conducting

that review, and, as a result, the recordings actually

reviewed must be characterized as part of the state’s
investigatory file. Consequently, the trial court correctly

determined that the state’s obligations under Brady

extended to those particular recordings. There simply

is no basis for concluding, however, that the calls that

never were reviewed by the department or otherwise

obtained by the state, and that were temporarily saved

on the department’s server for reasons unrelated to the

state’s investigation, constituted a part of that investigatory file. This is so because, as we have explained, the

department was acting as an investigative arm or agent

of the state only with respect to the 10 percent of the

calls that Lavery reviewed. Put differently, neither the

state nor the department took any action with respect

to those unreviewed calls that would make the calls

part of the state’s investigation of the defendant’s case;

rather, their nature and character as calls recorded

solely for the department’s internal security and administrative purposes remained unchanged. Accordingly,

in the absence of an appropriate showing by the defendant of at least some likelihood that those calls contain

exculpatory information, the trial court also correctly

determined that the state had no duty under Brady

either to examine those calls or to obtain them and

make them available to the defendant for his review.

On appeal to the Appellate Court, however, the defendant repeatedly argued that the calls were locked in

response to the state’s request for monitoring and,

therefore, should be deemed to be part of the state’s

investigatory file. Specifically, the defendant argued

that, ‘‘[w]hile the trial court found [the department]

subject to Brady as an investigative arm of the state’s

attorney (like the police), it only found that [the department’s] Brady obligations extended to the recordings

[the department] actually reviewed . . . and not to the

calls [the department] collected on behalf of the state’s

attorney but did not actually review . . . .’’ (Emphasis

added.) State v. Guerrera, Conn. Appellate Court

Briefs & Appendices, supra, Defendant’s Brief p. 9. The

defendant further argued that, ‘‘[i]n other words, the

[department’s] actions on behalf of the state’s attorney

involved both collection on a compact disc (through

the ‘locking’ procedure) and review. Thus, the state’s

argument [that the department was not acting on behalf

of the state when it locked the 1552 calls] fails—the

[department] was acting on behalf of the state’s attorney

in both locking (i.e., preserving) the calls and in

reviewing only 10 percent of them.’’ (Emphasis altered.)

State v. Guerrera, Conn. Appellate Court Briefs &

Appendices, supra, Defendant’s Reply Brief p. 4.

In his appeal to this court, the defendant reasserts

his contention that the recordings are part of the state’s

investigatory file because they were locked in response

to the state’s request for monitoring.12 As we discussed

previously, however, this claim is belied by the uncontested facts. Significantly, the defendant’s brief makes

no mention of the subpoena that the defendant caused
to be served on the department on August 15, 2013.

When challenged at oral argument before this court

as to the basis for the defendant’s assertion that the

recordings were locked in response to the state’s

request for monitoring, his appellate counsel cited

Lavery’s testimony at the hearing on the motions to

quash: ‘‘When I receive[d] a subpoena for the phone

calls for the other four [co]defendants, I went back and

started locking them . . . . I locked [the calls] for the

subpoena just so we made sure we had access.’’ It is

clear, however, that the subpoena to which Lavery was

referring was the defendant’s subpoena because no

other subpoena was served on the department in this

case.

The defendant also seeks to characterize the following language from the trial court’s memorandum of

decision as a factual finding that the department locked

the calls in response to the state’s request for monitoring: ‘‘Lavery locked all calls made by the four codefendants from approximately August, 2012, to the present.’’

This statement, however, merely establishes that the

calls were locked, not why they were locked. It is clear

from the record that the trial court was aware that

the calls were locked to comply with the defendant’s

subpoena. Indeed, this information was elicited from

Lavery under questioning by both the court itself and

counsel for the department. Lastly, the defendant seeks

to characterize the following sentence in the state’s

brief to this court as an admission by the state that

the calls were locked at the state’s request: ‘‘[U]pon

receiving the state’s request . . . Lavery . . . took

steps to preserve all recorded phone calls and jailhouse

visits for all four alleged coconspirators.’’ As we

explained, however, this statement is at odds not only

with Lavery’s testimony but with all of the state’s arguments elsewhere in its brief and in the Appellate Court.13

Contrary to the defendant’s contention, therefore, we

do not read the statement as an admission of any sort

but merely as an unintended misstatement that is contravened by the entirety of the state’s arguments

throughout both its briefs and arguments in the trial

court, the Appellate Court and this court.

At no time on appeal to the Appellate Court or to

this court has the defendant argued that the state had

a duty under Brady to review the recordings at issue

for exculpatory material, even if they were determined

not to be part of the state’s investigatory file. Indeed,

in his brief to this court, the defendant takes pains to

distinguish the present case from cases such as United

States v. Brooks, 966 F.2d 1500 (D.C. Cir. 1992), which,

as the trial court explained, recognized that such a duty

may be imposed on the state, even though the alleged

Brady material is not within the possession of the prosecution or any agency acting on the prosecution’s behalf,

when the review sought is so limited in scope that it

would be ‘‘very easy’’ to accomplish and the defendant
is able to establish ‘‘a [nontrivial] prospect that the

examination might yield material exculpatory information . . . .’’14 Id., 1504; see also United States v. Joseph,

996 F.2d 36, 41 (3d Cir.) (‘‘We will not interpret Brady

to require prosecutors to search their unrelated files

to exclude the possibility, however remote, that they

contain exculpatory information. . . . [W]e hold

[rather] that [when] a prosecutor has no actual knowledge or cause to know of the existence of Brady material in a file unrelated to the case under prosecution,

a defendant, in order to trigger an examination of such

unrelated files, must make a specific request for that

information—specific in the sense that it explicitly identifies the desired material and is objectively limited in

scope.’’ [Citation omitted.]), cert. denied, 510 U.S. 937,

114 S. Ct. 357, 126 L. Ed. 2d 321 (1993). In reaching its

decision in Brooks, the court surmised that the ‘‘willingness [of some courts] to insist on an affirmative duty

of inquiry’’ in light of the particular facts and circumstances involved—ordinarily, an inquiry into files

‘‘maintained by branches of government closely aligned

with the prosecution’’—‘‘may stem primarily from a

sense that an inaccurate conviction based on government failure to turn over an easily turned rock is

essentially as offensive as one based on government

[nondisclosure].’’ (Internal quotation marks omitted.)

United States v. Brooks, supra, 1503.

The defendant argues that Brooks is inapposite

because ‘‘[it] involved a defense request for the prosecution to affirmatively conduct an investigation that had

not yet been performed by affirmatively searching general government files,’’ whereas, in the present case,

‘‘[t]he defense was not asking the state’s attorney or

the [department] to perform an investigation that [it

was] otherwise unwilling to conduct. The defense simply wanted the state to review the materials it had

already gathered in its [own] investigation . . . .’’

(Emphasis in original.) Consistent with this contention,

the defendant notes that the cases cited in his brief are

dissimilar to Brooks in that all of them ‘‘involve . . .

investigatory files linked specifically to [the] case,’’15

rather than the ‘‘general government files’’ at issue in

Brooks. (Emphasis omitted.) The defendant’s argument

founders on the fact that the calls at issue in the present

case simply are not part of the state’s investigatory file.

As in Brooks, this case involves a defense request—in

the form of a subpoena—for a search of a government

agency’s general files, namely, the department’s server,

that would not otherwise have been performed but for

the defendant’s request. Cf. Stevenson v. Commissioner

of Correction, 165 Conn. App. 355, 364, 368, 139 A.3d

718 (prosecutor had no duty under Brady to disclose

internal department files that were generated at request

of public defender’s office for purely administrative

purposes, not in conjunction with state’s investigation),

cert. denied, 322 Conn. 903, 138 A.3d 933 (2016). In
stark contrast to Brooks, however, it can hardly be said

that the review of the calls sought by the defendant is

limited in scope—those calls number more than 1500,

and it would take hundreds of hours to listen to them—

and the defendant has provided no evidence to suggest

that any such review would result in exculpatory information.16

In sum, the undisputed facts demonstrate that the

calls at issue in this case, that is, the 1552 calls that were

not reviewed by the department, cannot reasonably be

characterized as part of the state’s investigatory file.

Consequently, the defendant’s claim that he was entitled to a review of those calls because they were part

of the file must fail. In light of the fact that the defendant

has provided no other rationale to support his claim of

a Brady violation, and because we are unaware of any

such alternative basis for relief, we reject his assertion

that the Appellate Court incorrectly concluded that the

trial court properly granted in part the state’s and the

department’s motions to quash.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

* This case was originally argued before a panel of this court consisting

of Chief Justice Rogers and Justices Palmer, McDonald, Robinson, D’Auria

and Espinosa. Thereafter, Chief Justice Rogers and Justice Espinosa retired

from this court and did not participate in the consideration of the case.

Justices Mullins, Kahn and Ecker were added to the panel and have read

the briefs and appendices, and listened to a recording of oral argument

prior to participating in this decision.

The listing of justices reflects their seniority status on this court as of

the date of oral argument.

1

In Brady, the United States Supreme Court held that the due process

clause of the United States constitution requires the state to disclose ‘‘evidence favorable to an accused . . . [when] the evidence is material either

to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution.’’ Brady v. Maryland, supra, 373 U.S. 87. For an accused to

prevail on a claim under Brady, ‘‘[t]he evidence at issue must be favorable

to the accused, either because it is exculpatory, or because it is impeaching;

that evidence must have been suppressed by the [s]tate, either [wilfully] or

inadvertently; and prejudice must have ensued.’’ Strickler v. Greene, 527

U.S. 263, 281–82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999).

2 Although the record is not entirely clear on this point, it does not appear

that any of these more than 1500 calls and visits were among the 10 percent

of the calls and visits that already had been reviewed by the department at

the state’s request.

3 The defendant, who had been tried under three separate informations

consolidated for trial, was acquitted of the charges of unlawful restraint in

the first degree and conspiracy to commit murder. The jury was unable to

reach a verdict as to the charges of murder, felony murder, conspiracy to

commit kidnapping in the first degree, and kidnapping in the first degree,

and the trial court declared a mistrial as to those charges. In a trial to the

court, the defendant was found in violation of probation.

4 As we explain more fully hereinafter, the state’s obligations under Brady

ordinarily extend only to exculpatory information contained in the state’s

investigatory file, which includes any exculpatory information known to

others actively involved in the investigation. See Strickler v. Greene, 527

U.S. 263, 280–82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999). Thus, we use

the term ‘‘investigatory file’’ to refer to any and all information obtained in

connection with the investigation into a particular criminal case, whether

that investigation was undertaken by the state or by others involved in that

investigation as an arm of the state.

5 This court has broad discretion to address any issue within the scope

of the certified question, even if the issue was not considered by the Appellate
Court. See, e.g., McManus v. Commissioner of Environmental Protection,

229 Conn. 654, 661 n.6, 642 A.2d 1199 (1994).

6 For ease of reference, we refer hereinafter to the inmate telephone calls

and noncontact visits collectively as the calls or recordings.

7 We note that the record does not reflect whether the department owns

or licenses any of the various commercially available software solutions,

which are regularly used in the discovery process for civil litigation and in

corporate compliance operations, to review or analyze large amounts of

digital data at a much faster rate than a human could review the same data.

8 This estimate was so broad because the department had not determined

the length of each call.

9 Although Lavery did provide notes on one or more of the calls he reviewed

at the request of the state’s attorney, he apparently did not lock those calls,

perhaps because they did not contain any evidence deemed to be inculpatory

or exculpatory.

10 The trial court originally estimated the number of those calls to be 1300.

Thereafter, however, the court clarified that there were 1552 such calls.

11 As we previously noted, the department locked the calls of the defendant’s four codefendants in August, 2013, in response to the subpoena issued

by the defendant to the department at that time. Because the regular practice

of the department prior to July, 2012, was to preserve all calls for only

ninety days, it appears that the calls identified in the trial court’s order—

that is, those that had been reviewed by Lavery—were not preserved. There

is no claim by the defendant, however, that any failure to preserve them

violated Brady or otherwise was improper.

12 For example, in his petition for certification to appeal, the defendant

asserted that, ‘‘[a]fter [the defendant] and the codefendants were arrested,

the state’s attorney contacted the [department]. At the state’s request,

[Lavery] ‘locked’ the recordings of prison calls made by [the defendant] and

the codefendants. . . . [W]hile Lavery created a file (the compact disc) of

all of the call recordings, Lavery only actually reviewed about 10 percent

of them. The other 90 percent remained within the investigative file of the

state’s attorney’s ‘investigative arm,’ the [department], but [they were] never

reviewed by anyone for exculpatory information.’’ (Emphasis in original.)

In his brief to this court, the defendant likewise argues that Lavery ‘‘lock[ed]

[his codefendants’] calls that were still available after receiving the state’s

attorney’s request [for monitoring]’’; Lavery ‘‘collected on behalf of the

[s]tate’s [a]ttorney [the 1552 calls] but did not actually review [them]’’;

‘‘Lavery did ‘lock’ calls that were still available after receiving the state’s

attorney’s request’’ and that ‘‘[t]he ‘locking’ process preserves the calls on

compact discs, and Lavery was able to lock all the available calls from the

codefendants from August, 2012, forward’’; ‘‘[t]he fact that the [department]

chose to lock the calls for later review in furtherance of its investigative

efforts does not bring that action outside the scope of the [department’s]

agency’’; and ‘‘the [department’s] choice to lock the calls was made in

furtherance of the [department’s] investigatory efforts and thus within the

scope of the agency found by the trial court.’’ (Emphasis omitted.)

13 At oral argument, the defendant also directed this court’s attention to

the testimony of Deputy Warden Armando Valeriano, who testified about

the department’s policies pertaining to the recording and monitoring of

inmate phone calls. The defendant argued that Valeriano’s testimony is

further proof that the 1552 recordings were locked as part of the state’s

investigation because Valeriano responded ‘‘yes’’ when asked by the trial

court, ‘‘[w]hen you get a request from the state’s attorney’s office, as in this

case, to monitor calls, are those recordings then preserved [s]o they won’t

be destroyed or written over in the normal course of business . . . ?’’ It is

clear, however, that Valeriano was referring to the preservation that occurs

automatically, because he then immediately stated that, ‘‘[w]ith this new

system,’’ inmate calls ‘‘are automatically saved for one year. All inmate calls

are saved for 365 days,’’ at which time ‘‘[t]hat first call drops off. . . . It’s

automatic through the system.’’ Thus, Valeriano did not testify that the 1552

calls were retrieved from the server and locked for reasons related to the

state’s investigation. He merely testified that inmate calls are preserved for

a period of one year during which time they are available for review if the

department should receive such a request. To the extent that there is any

ambiguity in Valeriano’s testimony, however, the trial court dispelled it later

in the hearing, during its colloquy with Lavery, when it asked him: ‘‘I’m a

little confused. Help me out here. I thought Deputy Warden Valeriano . . .

said that once a request comes in all the phone calls are preserved. So when

[the state’s] request came in [in] March of 2011, [were] all the phone calls
[of] the people who you were asked to monitor . . . preserved or not?’’

Lavery responded that they were not preserved.

14 In Brooks, the defendant requested that the government examine certain

readily identifiable files of its police department for information relating to

the suspicious death of the government’s chief witness, a police officer

employed by that department whose testimony at an earlier trial, which

resulted in a guilty verdict that was overturned when the court granted a

motion for new trial, was used to convict the defendant at a second trial.

United States v. Brooks, supra, 966 F.2d 1501–1503. The United States District

Court had rejected the defendant’s request, and, on appeal from that conviction, the United States Court of Appeals for the District of Columbia determined that the defendant was entitled to an examination of those files by

the government due to the unusual circumstances surrounding the witness’

death, which gave rise to the possibility that she had work-related problems

that might reflect adversely on her credibility. Id., 1503–1504. The District

of Columbia Circuit Court of Appeals therefore remanded the case to the

District Court so that the government could undertake such an examination.

Id., 1504.

15 See, e.g., United States v. Price, 566 F.3d 900, 908–10 (9th Cir. 2009)

(prosecutor was charged with constructive knowledge of information known

to police officers involved in investigation); In re Sealed Case No. 99-3096

(Brady Obligations), 185 F.3d 887, 893–96 (D.C. Cir. 1999) (prosecutor

had duty to search his own files and police department files for witness

cooperation agreements); United States v. Payne, 63 F.3d 1200, 1208 (2d

Cir. 1995) (‘‘[t]he individual prosecutor is presumed to have knowledge of

all information gathered in connection with the government’s investigation’’),

cert. denied, 516 U.S. 1165, 116 S. Ct. 1056, 134 L. Ed. 2d 201 (1996); United

States v. Martoma, 990 F. Supp. 2d 458, 462 (S.D.N.Y. 2014) (when prosecutor

and another government agency conducted joint investigation, prosecutor

had duty to review other agency’s investigatory files for exculpatory evidence); United States v. Gupta, 848 F. Supp. 2d 491, 495 (S.D.N.Y. 2012)

(‘‘whe[n] the [g]overnment and another agency decide to investigate the

facts of a case together . . . the [g]overnment has an obligation to review

the documents arising from those joint efforts to determine whether there

is Brady material that must be disclosed’’); United States v. Salyer, 271

F.R.D. 148, 155 (E.D. Cal. 2010) (government must review its own file, no

matter how voluminous, for Brady material); United States v. W. R. Grace,

401 F. Supp. 2d 1069, 1075–1076 (D. Mont. 2005) (same).

16 We do not suggest that, if the state has a disclosure obligation under

Brady with respect to certain information or materials, that obligation is

diminished or reduced depending on how burdensome it may be for the

state to discharge that obligation. On the contrary, the state’s obligation

under Brady is the same irrespective of how onerous or difficult it may be

for the state to comply with Brady’s dictates in any given case. The nature

of the burden on the state may be considered only in circumstances, akin

to those in Brooks, in which the court is asked to require the state to

track down information that is not part of the state’s investigatory file and

otherwise may not fall strictly within the requirements of Brady but that,

nevertheless, should, in fairness, be made available to the defense given the

nature of the information and the ease with which the state can obtain it.