Creating Architects of Justice: A Gift from Modern Ethics to Brady on Its 60th Anniversary
Author | David A. Lord |
Position | Adjunct Professor of Law at George Mason University's Antonin Scalia School of Law and Deputy Commonwealth's Attorney for the City of Alexandria, Virginia |
Pages | 469-495 |
Creating Architects of Justice: A Gift from Modern
Ethics to Brady on Its 60th Anniversary
DAVID A. LORD*
ABSTRACT
Sixty years ago, the U.S. Supreme Court announced the landmark decision
Brady v. Maryland, which aimed to create a fairer justice system. Those
charged with crimes were promised that the government would turn over evi-
dence favorable to the defense, ensuring that trials would be a fair contest
between the two sides. But six decades later, public confidence in our court sys-
tem is at an all-time low. In this article, career prosecutor and criminal proce-
dure professor David A. Lord argues that the best way to honor Brady on its
sixtieth anniversary is to reinvigorate exculpatory evidence jurisprudence by
aligning constitutional analysis with professional ethical guidance from the
Model Rules of Professional Conduct. This Article traces the historical develop-
ment of Brady principles over time, including the ways they have been expanded
and contracted by the Supreme Court. The Court’s decisions are then con-
trasted with the ethical mandates regarding exculpatory evidence that are con-
tained in the Model Rules. The Article argues that by aligning constitutional
principles with some of the professional ethical expectations of prosecutors,
public confidence in the criminal justice system can be restored.
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 470
I. PRE-BRADY JURISPRUDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . 473
II. THE BRADY DECISION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 477
* Adjunct Professor of Law at George Mason University’s Antonin Scalia School of Law and Deputy
Commonwealth’s Attorney for the City of Alexandria, Virginia. © 2023, David A. Lord. David has been a
prosecutor for seventeen years and routinely lectures in prosecutorial ethics to nationwide audiences. David has
published numerous law review articles in this field including on the ethics of plea bargaining, the ethics of trial
advocacy, and the ethical exercise of prosecutorial discretion. David is an experienced trial attorney, having
litigated fifty-nine jury trials to a verdict.
469
III. THE SUPREME COURT’S EXCULPATORY EVIDENCE: DECISIONS
AFTER BRADY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 479
A. THE NATURE OF THE EVIDENCE THAT QUALIFIES AS
EXCULPATORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 479
B. MATERIALITY ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . 481
C. PRESERVATION OF EVIDENCE . . . . . . . . . . . . . . . . . . . . . 486
D. TIMING OF THE RIGHT TO EXCULPATORY EVIDENCE . . . 488
IV. MODEL RULE 3.8 AND EXCULPATORY EVIDENCE . . . . . . . . . . 490
V. ALIGNING CONSTITUTIONAL EXCULPATORY EVIDENCE
STANDARDS WITH MODEL RULE 3.8 . . . . . . . . . . . . . . . . . . . . 493
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 495
INTRODUCTION
When I became a prosecutor in 2006, it was the heyday of the television show
Law and Order. Created originally in 1990, the program was named one of the
greatest shows of all time by Rolling Stone and TV Guide and spawned multiple
spin-offs.
1
Emma Bracy, The Curious Appeal of “Law & Order,” the Show That’s Always On, REPELLER (Jan. 18,
2019), https://repeller.com/a-history-of-law-and-order-fandom/ [https://perma.cc/LM47-JSRD].
Viewers were mesmerized by seeing an ideal, cyclical version of
events: “Bad man does bad thing, is captured and punished. Justice is served.”
2
When I graduated from law school, it seemed like everyone wanted to become a
prosecutor, and these positions were hard to come by. However, things have
changed dramatically since then. Currently, confidence in the criminal justice
system is at an abysmal level. The percentage of Americans who classify them-
selves as either extremely or very confident in the justice system as a whole sits at
35%.
3
Do Americans Have Confidence in the Courts?, WILLOW RSCH. (Mar. 27, 2019), https://willowresearch.
com/american-confidence-courts/#:�:text=Public%20confidence%20in%20the%20courts%20is%20low.&text=Most
%20Americans%20say%20that%20the,minorities%20are%20at%20a%20disadvantage [https://perma.cc/X6TE-
97N].
Part of this crisis of confidence has its roots in the repeated tragic stories of
individuals who have lost their lives at the hands of law enforcement. For exam-
ple, Gallup found that during the civil unrest that transformed the country follow-
ing the killing of George Floyd, confidence in police had fallen to 48%.
4
Aimee Ortiz, Confidence in Police Is at Record Low, Gallup Survey Finds, N.Y. TIMES (Aug. 12, 2020),
https://www.nytimes.com/2020/08/12/us/gallup-poll-police.html [https://perma.cc/5NZK-LGQV].
But the
lack of public confidence in the criminal justice system is also significantly
impacted by what happens once a case reaches the inside of a courtroom. Stories
1.
2. Id.
3.
4.
470 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 36:469
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