Does Brady v. Maryland Need a New Look? A Bi-Partisan Panel Weighs in with a Proposal to Reform Federal Criminal Discovery.

We all read Brady v. Maryland, 373 U.S. 83 (1963) in law school. At least, it was assigned. It remains a pillar of federal procedure; a transformative Warren Court opinion and a reminder of an era in which the expansion and definition of the rights of criminal defendants seemingly was the order of the day.

For those readers who either do not have a law degree or did not follow their 1L syllabus, Brady concerns the obligation of the prosecution to disclose material exculpatory information to the defense in advance of a criminal trial.

The facts of the case are largely lost to history, but nonetheless instructive. Brady was charged with murder by the State of Maryland, along with Mr. Boblit. They were tried separately. At trial, Brady admitted participation in the crime, but claimed that Boblit did the actual killing.

Before Brady’s trial, Boblit provided the prosecution with a written statement in which he admitted to the actual homicide. The prosecution withheld this statement from Brady’s defense and Brady was convicted at his trial.

The appeal reached the United States Supreme Court, which in a 7-2 decision held that the government’s failure to disclose such exculpatory evidence violated the due process clause of the 14th Amendment of the Constitution.

The term “Brady disclosure” thus entered the legal lexicon, while the individuals Mr. Brady and Mr. Boblit receded into obscurity. Brady is now a brand name in federal criminal procedure, along with “Miranda”, “Jencks” and “Giglio”. Numerous subsequent opinions refined Brady to require that a prosecutor disclose material exculpatory evidence to a defendant. Exculpatory evidence is “material” if “there is a reasonable probability that [the] conviction or sentence would have been different had these materials been disclosed”. Strickler v. Greene, 527 U.S. 263, 296 (1999).

Most commentators acknowledge the basic “rightness” of Justice Douglas’ majority holding. The knowing suppression by the government of evidence helpful to a defendant offends the basic notions of fair play, which do (or should) animate the best of criminal procedure–state and federal. In all respects then, the Brady opinion has to be considered a success.

There is just one problem: does Brady work? Most criminal lawyers have a Brady horror story here or there–a tale starring a rogue prosecutor or agent who withheld or tried to withhold some piece of critical evidence. These stories were the exceptions, however, to an otherwise salutary rule.

But in the last year, the nature of the debate has changed. In part driven by the very public debacle of the government’s prosecution of the late Senator Ted Stevens of Alaska and other some other opinions, there is growing sentiment that failure to comply with Brady may be more prevalent than previously thought and that Congress needs to enact legislation both clarifying the obligation and setting forth appropriate remedies for its violation.

On March 8, 2012, the Constitution Project (http://www.constitutionproject.org/), a not-for-profit constitutional advocacy group released a statement signed by a wide ideological range of former prosecutors, judges and defense attorneys. This statement urges Congressional action and it makes a compelling case. It is well worth reading.

While acknowledging that most prosecutors act in good faith to discharge the Brady constitutional obligation, the statement puts its finger on the heart of the problem: the Department of Justice has for years “articulated inconsistent, shifting and sometimes contradictory standards for criminal discovery” and that frequently in determining whether a particular piece of evidence implicates Brady a prosecutor must engage in a certain amount of speculation and guesswork. This guesswork can, even with the best of intentions, lead to unjust results. And has done so.

While the DOJ has taken some steps to self-police, and has added language supporting Brady to the U.S. Attorney’s Manual, the Constitution Project statement concludes that legislation is the only sufficient remedy.

The proposed legislation would do the following:

  1. To extend the Brady obligation to all information that is “favorable” to the defense at any juncture in a criminal proceeding. This would replace the existing “materiality” standard and leave less room for interpretation and doubt.
  2. Clarify that prosecutors must exercise due diligence to obtain and turn over exculpatory evidence, not just from their own files, but from other parties involved in the prosecution/investigation, including federal, state and local law enforcement or other agencies.
  3. Require that all such favorable evidence be turned over without delay as soon as it is obtained.
  4. Impose stronger and more definite remedies should a violation be found to have occurred.

It remains to be seen what, if anything, Congress will do with this proposal. But these are ideas whose time has come.