The legal term exculpatory describes evidence in a criminal matter that is favorable to, or tends to absolve, the defendant. This type of evidence may justify or excuse the defendant’s actions, or show that the defendant is not guilty at all. Exculpatory evidence is the opposite of inculpatory evidence, which incriminates the defendant, or proves his guilt. To explore this concept, consider the following exculpatory definition.

Definition of Exculpatory




  1. Having a tendency to clear from a charge of fault or guilt.
  2. Serving to exculpate, or to absolve.


1770-1780       English  exculpate + -ory

What is Exculpatory

Exculpatory is any evidence used to prove a defendant’s innocence, or to justify his actions. In a criminal trial, exculpatory evidence shows that the defendant lacked criminal intent, or otherwise exonerates him. In contract law, an exculpatory clause may be included to absolve one party from liability resulting from carrying out the contract. This protects that party from being sued in case of negligence or wrongdoing.

Exculpatory Evidence

Exculpatory evidence comes in many forms in a criminal trial. Exculpatory testimony may come from a witness who saw another person commit the crime, or can testify that the defendant was not at the scene of the crime when it was committed. Exculpatory evidence also includes evidentiary items, such as things collected at the crime scene, which tend to absolve the defendant. Exculpatory evidence often takes the form of fingerprints, DNA samples, and items left behind.

For example:

Ron has been accused of murdering his ex-girlfriend in her home. The police found the back door forced open, and took fingerprints off the door and frame. When analyzed, the fingerprints were determined not be a match for Ron, but matched a known burglar in the area. In addition, Ron’s friend, Adam, testifies in court that he and Ron attended a football game that night, then headed to the corner sports bar for a couple of hours, and that it was not possible Ron had gone to the victim’s home at the time of her murder.

The physical fingerprint evidence tends to be exculpatory, though it is not impossible that the perpetrator wore gloves, and therefore left no fingerprints behind. The witness testimony of Ron’s whereabouts all afternoon, until late at night, is exculpatory, tending to prove the defendant’s innocence.

Requirement to Disclose Exculpatory Evidence

When a prosecutor has access to any type of exculpatory evidence, he is required by law to disclose the evidence to the defense. Failure to disclose exculpatory evidence may result in a dismissal of the case, or in the declaration of a mistrial.

The Brady Rule on Exculpatory Evidence

In 1963, the U.S. Supreme Court heard the case of Brady v. Maryland, 373 U.S. 83 (1963), in which John Brady, who had been convicted of murder, petitioned the court for a reversal of his conviction, stating that the prosecutor had withheld important exculpatory evidence, which led to Brady’s conviction.

The original crime involved both John Brady and his friend, Charles Boblit, who robbed and killed a disabled man. After their arrest, both men confessed that the killing had taken place, but each blamed the actual killing on the other. Though the men were tried separately, both were found guilty of first degree murder and sentenced to death.

Brady’s attorney discovered that a key piece of information had been withheld from them. As it turned out, Charles Boblit had initially blamed the killing on Brady, but then confessed, in a written statement, to having strangled the victim to death himself. This statement had been kept from the defense in Brady’s case.

Brady appealed his conviction to the Maryland Court of Appeals, though that court affirmed the man’s conviction, ordering a retrial of the punishment phase only. Brady’s case was then appealed to the U.S. Supreme Court on the grounds that his 14th Amendment right to due process had been violated when the prosecution withheld exculpatory evidence from the defendant.

The Court determined, however, that by Maryland state law, the specific evidence that had been withheld in this case could not have exonerated the defendant from conviction, but was important in determining the level of punishment to which he could be sentenced. Because of this, the Supreme Court upheld the decision of the Maryland Court of Appeals, that only the punishment phase of the case could be re-tried.

Long Term Effects of the Brady Ruling

As a result of this ruling, it has become proper procedure for defendants charged with a crime to request “Brady disclosure” from the prosecution, meaning full disclosure of all evidence potentially exculpatory to the defendant. In addition, law enforcement officers who have been dishonest in their investigation and provision of potentially exculpatory evidence are often referred to as “Brady cops,” and prosecutors are now required to notify the defense if any law enforcement officer involved in the case has a history of knowingly providing false testimony or withholding evidence.

Exculpatory Clause in a Contract

An exculpatory clause in a contract is a provision intended to protect one party to the contract from being sued if accused of negligence or wrongdoing. Exculpatory clauses are generally enforceable, if they are considered reasonable. Any such clause that is unreasonable or extreme is likely to be invalidated by a court. In no case does an exculpatory clause in a contract protect a party from liability for reckless or grossly negligent acts.

Individuals accept exculpatory clauses in contracts everyday, often without realizing it. Documents that typically contain such a clause include:

  • Lease Agreements – contain a provision stating the landlord is not responsible for any injury, loss, or damages that occur on the property during the lease.
  • Parking Lot Receipts – contain a clause that states the lot owner is not responsible for any damages to the vehicle, or loss of property from inside the vehicle, during the car’s stay.
  • Restaurant Coat Check Receipts – often contain a clause absolving the restaurant for loss of, or damage to, the item checked.
  • Dry Cleaning Tickets – specify that the establishment is not responsible for changes to texture or color of the garments, and many state the establishment is not responsible for loss or other damage as well.

For example:

Bob and Sharon lease a home in a nice family neighborhood. Their lease agreement contains an exculpatory clause that absolves the landlord of any liability for damages to their personal property, as well as from any injuries sustained on the property. The couple’s kids invite neighborhood friends over, and they are playing flag football in the yard when one of the friends twists his ankle when he trips over a sprinkler head.

The boy’s parents ask the landlord to pay their son’s medical bills, as he owned the property, and was responsible for installing the sprinkler system. The landlord refuses, however, making it clear that Bob and Sharon had agreed to accept sole responsibility for these types of occurrences during the term of their lease.

Enforceability of an Exculpatory Clause in a Contract

In addition to the reasonableness requirement for enforceability of an exculpatory clause in a contract, the clause itself must meet certain requirements to be considered valid. These include:

  1. Visibility – The clause must be clearly visible and noticeable.
  2. Understandability – The actual wording of the clause must be written in a manner that is easily understandable to an ordinary person.
  3. Specific Wording – The clause must specifically state the theory under which the clause is being accepted, such as “negligence,” or “damages or theft.”
  4. Intent – The intent of the parties to relieve one party from liability must be clearly stated.

Example of Unenforceable Exculpatory Clause

Mario parks his new car in the parking garage across the street from his office. While parking, Mario carefully positioned his shiny new car at the end of a row, near the wall on the driver’s side, with a post on the passenger’s side, to minimize the risk of another car scraping it. When he picks up his car that evening, there is a large scratch running from the front bumper, across the driver’s door. Angry, Mario shows the damage to the attendant and makes a complaint, demanding the lot pay to repair the car.

When the owner of the lot contacts Mario a few days later, he refuses to pay for anything, reminding Mario that every parking ticket contains an exculpatory clause absolving the lot of any damages that may occur. Mario files a small claims lawsuit for damages, pointing out that the damage could not have occurred while the car was parked where he had left it. Rather, someone must have taken the car out and driven it.

While the exculpatory clause protects the parking lot owner from most damages that might occur in such an environment, it does not protect against intentional or grossly negligent acts, which would apply to allowing an employee to drive one of the parked cars.

Related Legal Terms and Issues

  • Contract – An agreement between two or more parties in which a promise is made to do or provide something in return for a valuable benefit.
  • Criminal Trial – The trial of an individual formally accused of a crime.
  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Liability – Responsibility for payment of damages, or for other court-imposed penalties in a civil lawsuit.
  • Mistrial – A criminal trial that has not successfully been completed.
  • Negligence – Failure to exercise a degree of care that would be taken by another reasonable person in the same circumstances.

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