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