Time For a Brady Break

At Sentencing Law and Policy, Doug Berman posts part of the  Constitution Projects’ statement urging Congress to enact legislation to ensure that federal prosecutors fulfill their obligations under Brady v. Maryland.


We, the undersigned, are current and former judges, prosecutors, law enforcement officers, defense lawyers and others, all with substantial professional experience within the criminal justice system.  We call upon Congress to address the persistent problems with discovery in the federal criminal justice system by immediately enacting legislation that clarifies federal prosecutors’ obligations to disclose information to the defense and that provides appropriate remedies when prosecutors fail to do so.


We have concluded that Brady violations, whether intentional or inadvertent, have occurred for too long and with sufficient frequency that Congress must act.  Self-regulation by the DOJ has been tried and has failed.  It is ultimately not a solution to the injustices that continue to occur. 


Key to this statement, aside from its support by “credible” folk rather than just criminal defense lawyers, is the strongly worded assertion that the DOJ cannot be trusted to manage Brady on its own.  The decision, which I’ve called Wild Bill Douglas’ greatest joke, requires the government to turn over to the defense any information that may tend to be exculpatory or (per the Giglio decision) tend to impeach a prosecution witness.  The problem is that the information must be material and credible, holes big enough to drive a truck through.

Then there’s the problem of the Brady ever reaching the prosecutor.  Federal agents tend to be pretty well trained, and they know that evidence that undermines their case could end up in the wrong hands and spell the acquittal of someone they’re absolutely certain is guilty. Can’t have that, now can we? So it ends up in the wrong file, often circular, and the prosecutor never sees it. You can’t turn over what you don’t see.

Or then there’s the time dilemma, as Brady never spoke to the issue of when the prosecution is required to provide exculpatory information. While the duty is to provide it before trial, that just as easily means 30 seconds before as 30 days before.  The defense will demand it early. The prosecution will respond that it’s under no duty to turn over Brady until  trial.  The judge snores.  Nothing to see here.

The problem is that Brady material isn’t always a smoking gun. It’s materiality often takes some thought, and it’s utility often requires some subsequent investigation. These things take time, which isn’t available when you’re in the middle of trial.  Then there’s the problem of integrating it into the trial strategy, which isn’t easy when the significance of the Brady isn’t clear until midway through summation.  In other words, it’s become part of a game, even when it is disclosed, designed to make sure that it’s of the least possible usefulness to the defense.  That’s what the government calls leveling the playing field.

There are two great comments to Doug’s post, the first by Michael R. Levine providing an exceptional list of cases that might have “prompted” the conclusion that the DOJ wasn’t up to the job.  The second comment goes through an extremely common, and invariably egregious and essentially insurmountable, problem of federal agents who refuse to record defendant statements, leaving only their own notes to “prove” what was said and how the statement was obtained.  This raises a host of other issues, beyond the scope of this post.  Nothing against commenters here, but I’m jealous of Doug for getting such thoughtful and informative comments.  Hint?

This call for legislation is a great first step toward making Brady work.  The statement goes on to suggest a four-point solution for the problem.


1. Provide that the scope of the prosecution’s discovery obligation extends to all information—regardless of admissibility at trial—that could reasonably be considered favorable to the defendant, with respect to pretrial motions, guilt, impeachment of witnesses, or sentencing. Requiring disclosure of all “favorable” information requires less room for interpretation on the part of the prosecutors than a materiality standard.

2. Clarify that prosecutors have an obligation to exercise due diligence in obtaining any favorable evidence, beyond what is in their possession, from other parties involved in the investigation and/or prosecution, including federal, state and local law enforcement or other agencies.

3. Require that prosecutors disclose favorable information without delay, as soon as they become aware of it, thus clarifying that the Jencks Act does not trump this disclosure requirement. If the government has legitimate objections to disclosure due to concerns about a witness’ safety, a desire to protect classified information, or other reasons, prosecutors may raise those concerns with the court, which can issue a protective order if appropriate.

4. Impose an appropriate remedy in the case of non-compliance, including exclusion of evidence or witness testimony, a new trial, dismissal of the charges, or other remedies to be determined by the court. Courts generally have the power to fashion appropriate remedies under their general supervisory powers, but this law would clarify that the court shall use that power to fashion an appropriate remedy each time a violation of the disclosure requirement has occurred.


It’s not that there’s anything wrong with this, but it’s still the typical warm and fuzzy approach that relies exclusively upon the good will of prosecutors for its fulfillment. It’s a step forward only in theory; in practice, it’s the same old same old.

The underlying problem is that while Brady is critically important from the systemic perspective of establishing some basic integrity to the system, no one has ever been able to figure out a way to make it work while maintaining that prosecutors are just good ol’ boys doing the best they can with a confusing system.


Our experience leads us to believe that the vast majority of prosecutors act in good faith to fulfill their constitutional and legal obligations. However, federal courts, the DOJ and other entities have for years articulated inconsistent, shifting, and sometimes contradictory standards for criminal discovery, leaving it up to individual prosecutors to navigate this legal maze and determine the scope of their obligations to disclose information.

Our experience leads us to believe that this is crap. I’ve know prosecutors who honored their duty and prosecutors who haven’t.  Both tend to be exceptionally smart and don’t need legislation to help them to “understand” their obligations. They know exactly what they’re supposed to do.  And yet it doesn’t happen.  Until this harsh truth is admitted, there is no way to meaningfully address the failure of Brady.


4 comments on “Time For a Brady Break

  1. John David Galt

    If we’re not willing to rely on the “good will of prosecutors,” and judges are going to “snooze” when they ought to be enforcing Brady against prosecutors, then it sounds like we can’t rely on them doing their jobs either. This problem would seem to call for one of only two remedies. Either the appeals courts need to become much more willing to overturn cases where Brady wasn’t followed, regardless of materiality; or we need constitutional change that removes enough of the separation of powers to make both prosecutors and judges answerable directly to their victims.

  2. SHG

    So your solution is lose, spend a year in prison awaiting appeal and hope you get an appellate judge who’s more amendable to doing what the district judge failed to do, or sue for damages so when you finish up that 30 year sentence so, you’ve got some walking around money. Got it. Thanks for playing.

  3. Frank

    A lot of this crap would go away if prosecutors did not enjoy absolute immunity in both civil and criminal courts.

  4. SHG

    That’s true, to a point. The other side is that it would get buried deep so no one would ever find it. As it stands, the biggest issue is that nobody ever knows what Brady exists, and when it’s subsequently discovered, it’s pure, unadulterated luck.

    What this means is that 99% of it may never be known. No one will ever know what concealed Brady never came to light.

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