A fair trial remedy for Brady violations.

AuthorDewar, Elizabeth Napier


Forty years after the Supreme Court held in Brady v. Maryland that the Constitution requires the government to disclose favorable evidence to criminal defendants, (1) prosecutors still frequently fail to perform this duty. (2) Such failures violate defendants' rights to due process of law under the Fifth and Fourteenth Amendments and thwart the various protections that together constitute the fundamental right to a fair trial under the Sixth Amendment. By directly handicapping the defense, Brady violations also diminish the ability of the criminal justice system to distinguish accurately between the guilty and the innocent.

Nevertheless, most Brady violations pass undiscovered or without remedy. When favorable evidence remains buried, defendants do not know that their rights were violated. And even when suppressed evidence does come to light, reviewing courts usually deem suppressions "harmless" and uphold the convictions. (3) Thus, not only are defendants' rights rarely vindicated, but also the government rarely suffers a serious penalty for its misconduct.

Because Brady and its progeny accord prosecutors nearly unchecked discretion, reducing the number of violations requires changing the way individual prosecutors approach their Brady duties: the rigor with which they look for Brady evidence in the government's possession, the amount of time they spend imagining how a piece of evidence might be favorable to the defense, and the consideration they give to the consequences of disclosing too little. A remedy that vindicates the rights of defendants and also entails immediate consequences for prosecutors--a remedy at trial--might accomplish this fundamental change.

This Note proposes such a remedy: When the defendant learns during or shortly before trial that the government failed to disclose significant favorable evidence, the court should consider instructing the jury on Brady law and granting the defendant permission to argue that the failure raises a reasonable doubt about the defendant's guilt. Part I briefly describes the status quo. Part II proposes the fair trial remedy. Part III suggests how the remedy might come into use.


    In 1963, the Supreme Court ruled in Brady that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (4) Brady's significance lies in the phrase "irrespective of the good faith or bad faith": the Court had earlier ruled that a person's due process rights are violated when the government deliberately suppresses favorable evidence. (5)

    The Court has since ruled that the Constitution requires disclosure of impeachment evidence, (6) evidence possessed by the government even if not by the prosecutor, (7) and evidence not specifically requested by the defense. (8) The standard by which today's courts of appeal judge Brady claims was first enunciated in United States v. Barley in 1985: A conviction must be overturned "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." (9)

    The range and frequency of prosecutors' failures to disclose Brady evidence have been widely lamented. (10) A treatise on prosecutorial misconduct states that "[a] prosecutor's violation of the obligation to disclose favorable evidence accounts for more miscarriages of justice than any other type of malpractice, but is rarely sanctioned by courts, and almost never by disciplinary bodies." (11) The very nature of Brady violations--that evidence was suppressed--means that defendants learn of violations in their cases only fortuitously, when the evidence surfaces through an alternate channel. Nevertheless, a recent empirical study of all 5760 capital convictions in the United States from 1973 to 1995 found that prosecutorial suppressions of evidence accounted for sixteen percent of reversals at the state postconviction stage. (12) And a study of 11,000 cases involving prosecutorial misconduct in the years since the Brady decision identified 381 homicide convictions that were vacated "because prosecutors hid evidence or allowed witnesses to lie." (13) That study's authors note, however, that their findings represent "only a fraction" of the amount of serious misconduct, because so much misconduct is undetected. (14)

    Commentators have variously attributed these violations to excessive caseloads and inexperience; (15) the desire to win for professional or political gain; (16) aspirations to "do the higher justice" by ensuring the conviction of the guilty even at the cost of suppressing evidence; (17) and the inherent conflict between prosecutors' habitual role as "zealous advocates" and the task of searching for evidence that might jeopardize their own cases. (18) Even cognitive psychology has been brought to bear, with one scholar hypothesizing that prosecutors' belief in the guilt of those they prosecute may pose a fundamental psychological obstacle to their grasping the exculpatory value of evidence. (19)

    When a prosecutor is inclined against disclosing a piece of arguably favorable evidence, few considerations weigh in favor of disclosure. Trial courts are reticent to grant motions to compel disclosure of alleged Brady evidence, (20) examine government files, (21) or hold prosecutors in contempt. (22) Defendants only rarely unearth suppressions. (23) And, even when they do, their convictions are rarely overturned because they face a tremendous burden on appeal (24): showing that the suppression raises a "reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." (25) Finally, lawyers' professional associations do not frequently discipline prosecutors for even the most egregious Brady violations. (26) Accordingly, it is not surprising that one commentator has gone so far as to call the Brady right "a right that almost begs to be violated," arguing that "as a practical matter, there is almost nothing that presently prevents the prosecutor disposed to do so from routinely withholding exculpatory evidence." (27)

    Brady v. Maryland declares that the principle behind overturning convictions for the suppression of favorable evidence is "not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly." (28) Rather than only being remedied in rare cases by a new trial, Brady violations should be prevented in the first place, so that all defendants enjoy their rights to a fair trial under the Fifth, Sixth, and Fourteenth Amendments. In the next two Parts, this Note will offer one way this might be accomplished.


    I propose that when suppressed favorable evidence comes to light during or shortly before a trial, the trial court should consider instructing the jury on Brady law and allowing the defendant to argue that the government's failure to disclose the evidence raises a reasonable doubt about the defendant's guilt. I call this a "fair trial remedy," because instead of curing the Brady violation through reversal on appeal, the remedy corrects the trial itself. (29) In contributing to a jury's decision to acquit, the remedy would provide more immediate relief than a postconviction reversal. Yet, because the remedy would not free or even grant a new trial to defendants of whose guilt the government has sufficient evidence, the remedy would not run afoul of those who decry the social costs of other "punishments" for prosecutors, such as overturning convictions or dismissing charges. (30)

    1. The Remedy in Practice

      The remedy would be structurally similar to the "missing evidence" and "missing witness" doctrines. Each side in a criminal case has long been allowed to argue that the failure of a party to produce a witness or evidence when that party might be naturally expected to do so creates an inference that the missing testimony or evidence would have been unfavorable to that party. (31) This adverse inference may then, with the court's permission, be argued in closing and addressed by a jury instruction. The prerequisites are a showing that the testimony would have "elucidated the transaction"--i.e., that it would not simply have been cumulative-and that the evidence or witness was "peculiarly" available to the nonproducing party. (32)

      The corresponding Brady remedy would require defendants to establish that favorable evidence in the government's possession had been suppressed, and that the suppression had significantly hampered the defense's investigation and preparation for trial. The defense would also have to show that the suppressed evidence was not merely cumulative of other favorable evidence in the defense's possession, and the defense did not have access to the suppressed evidence and could not reasonably have been expected to find the evidence through other channels.

      The remedy would exist primarily for the benefit of defendants when the government's tardiness (33) or failure to disclose favorable evidence permanently prejudiced the defense. Permanent prejudice might consist of the disintegration of tangible evidence or the death or disappearance of a witness or alternative suspect. In such cases, neither granting a continuance for further investigation nor the fact...

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