Commonwealth v. Tuma, 740 S.E.2d 14

Tuma was convicted of taking indecent liberties with a child, aggravated sexual battery, and animate object penetration, based on a seven-year-old victim L.S.'s testimony and related evidence.
An audio tape of L.S.'s investigative interview was recorded by Scheid and stored by DSS; defense counsel learned of a possible tape existence before trial.
During trial, two witnesses testified the interview was recorded; Scheid admitted having the tape in court; defense moved to admit the tape but the court refused.
The court allowed defense to listen to the tape, but the defense did not listen during trial; defense later listened after verdict and claimed Brady violation.
The Court of Appeals reversed finding a Brady violation; the Virginia Supreme Court granted review on whether the tape was suppressed and whether materiality was established.
The Virginia Supreme Court held there was no Brady violation because the tape was available for use at trial and not suppressed, and remanded for the admissibility issue.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Commonwealth suppressed Brady material	Tuma argues the tape was suppressed and not disclosed pre-trial.	Commonwealth contends the tape was available during trial for use, thus no suppression.	No Brady violation; tape available for use at trial
Whether the timing of disclosure affected materiality	Late or absent pre-trial disclosure prejudiced defense and could have impacted impeachment.	Timely disclosure occurred during trial; defense could have used it with time remaining.	Not reached; no suppression shown

Brady v. Maryland, 373 U.S. 83 (U.S. 1963) ( suppression of favorable evidence violates due process if material)
Skinner v. Switzer, 131 S. Ct. 1289 (U.S. 2011) (impeachment and favorable evidence need to be material)
Read v. Virginia State Bar, 233 Va. 560 (Va. 1987) (mid-trial disclosure may suffice if time remains to use it)
United States v. Behrens, 689 F.2d 154 (10th Cir. 1982) (timeliness of disclosure and use)
Smith v. Cain, 132 S. Ct. 627 (U.S. 2012) (undisclosed impeachment evidence may be material when directly contradicting key witness)
Kyles v. Whyley, 514 U.S. 419 (U.S. 1995) (materiality requires undermining confidence in the outcome)
Bagley v. United States, 473 U.S. 667 (U.S. 1985) (definition of reasonable probability of a different outcome)
Workman v. Commonwealth, 272 Va. 633 (Va. 2006) (materiality and prejudice in Virginia Brady analysis)