Commonwealth v. Mills: Kentucky Adopts the “Favourability-Only” Test for Mid-Trial Brady Disclosures

1. Introduction

In Jeremy Daniel Mills v. Commonwealth of Kentucky, the Supreme Court of Kentucky reversed the defendant’s convictions after finding a Brady violation stemming from the Commonwealth’s late disclosure—during trial—of an impeachment-laden video. The decision does much more than decide a single dispute: it establishes a new procedural rule for Kentucky trial courts facing tardy disclosures of exculpatory or impeachment evidence. The Court adopts the “favourability-only” (sometimes called the forward-looking) test that federal courts use, rejecting the retrospective “reasonable probability of a different result” analysis at the trial level.

The parties:

• Appellant: Jeremy Daniel Mills – convicted of multiple sexual offences involving a minor and sentenced to 20 years.
• Appellee: Commonwealth of Kentucky.

The key evidentiary dispute involved a ten-minute recorded police interview of a jailhouse informant, Edward Troutt, that prosecutors possessed but did not disclose until after Troutt had testified.

2. Summary of the Judgment

• The Court (Justice Conley writing for a unanimous bench) holds that:

1. The Commonwealth suppressed favourable impeachment evidence—Troutt’s video interview—in violation of Brady v. Maryland.
2. The trial judge applied the wrong legal standard when he asked whether the undisclosed evidence would probably have changed the verdict.
3. The correct approach is to examine, at the moment of disclosure, whether the evidence is favourable (i.e., helpful for defence or impeachment); materiality in the appellate sense is reserved for later review.
4. Because the video could have significantly undermined the credibility of a central prosecution witness during a deliberation that plainly turned on the defendant’s knowledge of the victim’s age, confidence in the verdict is undermined.

Result: all convictions are reversed; case remanded for further proceedings.

3. Analysis

3.1 Precedents Cited

• Brady v. Maryland, 373 U.S. 83 (1963) – Constitution requires prosecution to disclose favourable evidence (exculpatory or impeachment).
• Strickler v. Greene, 527 U.S. 263 (1999) – Three-part Brady test: favourability, suppression, materiality.
• Kyles v. Whitley, 514 U.S. 419 (1995) – Defines “reasonable probability” and rejects harmless-error review for Brady.
• United States v. Cloud, 102 F.4th 968 (9th Cir. 2024) & other circuit authorities – unanimous federal view that Brady applies to mid-trial disclosures and that trial courts should use a “favourability-only” lens. The Kentucky Court expressly aligns itself with this consensus.
• Prior Kentucky cases: Commonwealth v. Parrish, Nunley v. Commonwealth, Miller v. Commonwealth – cited for preservation principles and constructive knowledge rules.

By weaving these precedents, the Court signals that Kentucky procedure must now emulate federal practice and fill the analytical gap left by earlier state cases that addressed only post-trial nondisclosures.

3.2 The Court’s Legal Reasoning

1. Preservation Found. Although defence counsel requested the “nuclear” remedy of dismissal, she explicitly uttered the word Brady, explained impeachment value, and the judge ruled—thus the issue was preserved.
2. Choosing the Correct Test. The trial judge erroneously used the would the verdict have changed? test—appropriate only to appellate review. Instead, the Court adopts the “favourability-only” screening test: if evidence may aid cross-examination or rebuttal, it must be disclosed promptly; the judge should then craft a remedy (continuance, recall of witnesses, etc.).
3. Application to the Facts. The Troutt video contained three inconsistencies that would let defence counsel argue Troutt fabricated a confession by studying Mills’s case file: (a) the witness used the generic term “juvenile” not “thirteen,” (b) he omitted the timeline of when the victim disclosed her age, (c) he mentioned anal sex although no such allegation existed elsewhere. Those discrepancies strike at the heart of Troutt’s credibility—key because jurors were demonstrably wrestling with Mills’s knowledge of age (they sent a note).
4. Materiality on Appeal. Looking back, the Court finds confidence in the verdict shaken; the prosecution’s own impeachment witness (A.C.) was only partially believed (acquittals on rape, strangulation, kidnapping), so Troutt’s bolstering role was substantial.

3.3 Impact of the Ruling

• Procedural Blueprint for Trial Courts. Kentucky judges must now:

1. Ask only whether newly revealed evidence is “favourable.”
2. If yes, stop the trial as necessary: order immediate disclosure, grant continuance, allow additional investigation, and, where feasible, recall witnesses. Cost or inconvenience cannot trump the defendant’s constitutional rights.

• Practical Effects on Prosecutors and Police. The decision emphasises constructive knowledge: police files equal prosecution files. Late discovery is no longer curable simply by “playing the tape for the jury.” Prosecutors must implement robust evidence-tracking systems and earlier case-file audits.

• Strategic Effects on Defence Counsel. Counsel should object immediately to any untimely disclosure and request specific remedies— continuance, re-opening cross, exclusion, or mistrial—citing Mills.

• Persuasive Authority Outside Kentucky. Though many circuits already follow this path, few state high courts have articulated the rule so clearly. Mills will likely be cited nationwide in state-level litigation on mid-trial Brady issues.

4. Complex Concepts Simplified

• Brady Evidence. Any information in the government’s possession that (a) tends to show the defendant is not guilty (exculpatory) or (b) helps attack the credibility of a prosecution witness (impeachment).
• Materiality (Appellate Sense). On appeal, evidence is “material” if there is a reasonable probability its earlier disclosure would undermine confidence in the verdict—not proof the verdict would surely change.
• Favourability-Only Test (Trial Sense). While the trial is underway, judges need answer a simpler question: “Could this help the defence in any non-trivial way?” If yes, they must halt proceedings long enough to allow effective use.
• Persistent Felony Offender (PFO). A sentencing enhancement in Kentucky—analogous to a “habitual offender”—that increases punishment based on the defendant’s prior felony record.
• Directed Verdict. A defence motion asking the judge to acquit because the prosecution’s evidence is legally insufficient—here Mills argued a “mistake of age” defence.

5. Conclusion

Commonwealth v. Mills reshapes Kentucky’s criminal procedure by transplanting the federal “favourability-only” standard into state practice for mid-trial Brady disclosures. The Court underscores that the defendant’s right to a fair trial eclipses administrative inconvenience, and that late discovery must be met with real, not cosmetic, remedies. Future Kentucky trials will pause—not plough ahead—when hidden evidence surfaces. Prosecutors are on notice that suppression, even inadvertent and mid-trial, may topple convictions. In the broader legal landscape, Mills offers a clear, state-level articulation of a rule already dominant in the federal circuits, reinforcing due-process protections nationwide.