Activating a Brady Pretrial Duty to Disclose Favorable Information: From the Mouths of Supreme Court Justices to Practice

Volume 38, Issue 3 – Janet C. Hoeffel¥ and Stephen I. Singer¥¥

I. Introduction

On this fiftieth anniversary of Brady v. Maryland,[1] it is fitting that criminal procedure scholars take the Brady doctrine out and give it another sound beating.[2] While the Brady case itself held promise for the promotion of justice and fairness in criminal trials, its progeny, and the mistaken interpretations of that case law, decimated any such hope. Brady held that “suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or punishment.”[3] The most straight-forward reading of Brady in context was that the word “material” meant “relevant,” in the typical evidentiary sense, making the prosecutorial duty to disclose before and at trial familiar and easily understood by trial lawyers and judges.[4] If the information “would tend to exculpate [the defendant] or reduce the penalty,”[5] then it was a violation of due process if the prosecutor did not disclose the evidence. That reading of “material” did not last long.

Reflections on the Brady Violations in Milke v. Ryan: Taking Account of Risk Factors for Wrongful Conviction

Volume 38, Issue 3 – Catherine Hancock¥

“The jury [had] nothing more than [the detective’s] word that Milke confessed. Everything the [S]tate claims happened in the interrogation room depends on believing the detective’s testimony. Without [his] testimony, the prosecution had no case against Milke[.] [T]he Constitution requires a fair trial, and one essential element of fairness is the prosecution’s obligation to turn over exculpatory evidence. This never happened in Milke’s case and so the jury trusted [the detective] without hearing of his long history of lies and misconduct.”[1]

Beyond Brady: An Eighth Amendment Right to Discovery in Capital Cases

Volume 38, Issue 3 – Sanjay K. Chhablani¥

The fiftieth anniversary of Brady v. Maryland[1] has provided yet another opportunity to reflect on the legacy of this landmark case in ensuring a fair trial. Unfortunately, while Brady’s disclosure regime was once heralded, there is now a growing consensus that it is deeply flawed.[2] As Judge Gilbert Merritt of the Sixth Circuit Court of Appeals, writing about Brady violations in the cases that have come before him, has concluded, “the greatest threat to justice and the Rule of Law in death penalty cases is state prosecutorial malfeasance­—an old, widespread, and persistent habit.”[3]

The Right to Defense Discovery in Plea Bargaining Fifty Years after Brady v. Maryland

Volume 38, Issue 3 – Cynthia Alkon¥

“Here’s how it went. [A] client would hire me for a DWI or weed case. I’d go to court and ask for a copy of the police report. I’d be told that they could read it to me (no seriously, they would say this), or sometimes even let me read it. But if I wanted a copy then I would have to file a discovery motion and then they would withdraw all plea offers and force my client to trial. So basically they set up a closed file system to bully defendants into pleading guilty without looking at the evidence.”[1]