A MATERIAL CHANGE TO BRADY: RETHINKING BRADY V. MARYLAND, MATERIALITY, AND CRIMINAL DISCOVERY.

• Author: Clafton, Riley E.

INTRODUCTION I. EXPLANATIONISM: EXPLAINING TRIALS A. Probabilism and Its Limitations B. Explanationism Explains Juridical Proof II. EXPLANATIONISM EXPLAINS BRADY V. MARYLAND A. Early Brady and Probabilism B. Brady Shifts Towards Explanationism C. Do as I Do, Not as I Say D. Modern Brady, a Hodgepodge of Both Theories E. A Materially Different Conception of Evidence III. THE TEXAS STORY A. Federal Materiality B. State Materiality IV. THE "MORTON ACT" AS A CASE STUDY A. The Morton Act, Art. 39.14 of the Code of Criminal Procedure of Texas B. A Material Limitation on Reform CONCLUSION INTRODUCTION

"One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict."

--Justice David H. Souter (1)

How we think about juridical proof and the trial process, and the assumptions and beliefs we bring to bear on that process, shape how litigation is structured. For most of common law's history, a probabilistic understanding of juridical proof has dominated; we have viewed trials as a process by which factfinders determine the likelihood that each individual element of a claim is met and decide on an outcome accordingly. (2) However, this theory has proven largely insufficient, particularly because it does not account for how factfinders actually reason and come to verdicts. (3) Instead, explanationism--the theory that factfinders decide cases by weighing the parties' competing explanations against each other and the applicable standard of proof--is the best current understanding of juridical proof.4 But because probabilistic thinking has implicitly guided American jurisprudence for decades, many evidentiary issues and assumptions must be examined anew. (5)

It is especially important to reexamine Brady v. Maryland for its role in a criminal defendant's right to evidence held by the State and its pervasive influence on the American approach to criminal discovery. (6) Since Brady, evidence in criminal cases has been evaluated in terms of materiality--to give a criminal defendant due process of law, all "favorable" evidence possessed by the prosecutor that is "material to guilt or punishment" must be disclosed to the defendant. (7) As Brady doctrine has evolved, materiality has come to serve both as a threshold standard and as a necessary element to prove harm. (8) Evidence is assessed for its materiality to the case at the point of disclosure, and on appeal or collateral review withheld evidence must be sufficiently material--such that its suppression caused enough harm to result in a cognizable Brady claim. (9) Criminal defendants are not entitled (at least, constitutionally) to any evidence that is not material. (10) As a corollary, courts find no harm to a criminal defendant when evidence that is not "material" goes undisclosed. (11)

Brady doctrine, like other evidentiary concepts, has been infused with probabilistic thinking. (12) Even in recent conceptualizations of Brady, probabilistic thinking continues to inform materiality, as "evidence is 'material' within the meaning of Brady when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different." (13) However, as this Comment argues, a closer examination of Brady doctrine and its evolution shows that there has been a "two steps forward, one step back" movement towards the embrace of a more explanatory account of materiality, without the Supreme Court ever saying so. (14) The development of an explanatory lens to assess materiality must be realized more fully because a more accurate definition of what evidence is "material" is critical to fulfilling the promise of Brady and the right to due process of law. (15) When a defendant is prevented from presenting her explanation to the jury, she is denied a fair trial and due process of law. (16) And although Brady doctrine has evolved substantially, particularly since Kyles v. Whitley, (17) there remain substantial shortcomings and the need for a more explanatory account of materiality. (18) The materiality standard has substantially restricted the prosecutorial disclosure duty (19) by tightly limiting what must be disclosed and setting an inaccurately high bar for what evidence is sufficiently material to merit any remedy. (20)

This Comment argues that the theory of explanationism demonstrates the need for legislatures and courts, both state and federal, to reconsider how they determine what evidence is "material" to criminal discovery. (21) Not only is this undertaking important theoretically, but the real-world consequences are also substantial. The American adversarial system is predicated on requiring the State to meet its burden to ensure due process of law and the accuracy of verdicts. (22) If that system is not structured to accomplish those goals, the entire system becomes irrational. (23) Theoretical and empirical studies of juridical proof have shown that the probabilistic assumptions that underlie Brady law and many of our criminal discovery statutes do not align with how the proof process is actually structured and operates in practice. (24) This disjunction between what is deemed material by law and what is material to a defense in reality undermines a defendant's right to a fair trial--a right that Americans have jealously guarded since 1791. (25)

This Comment first proceeds by delineating explanationism as a theory, its advantages over the probabilistic conception of juridical proof, and the role explanationism can play in better conceptualizing the trial process. The next section applies explanationism to Brady doctrine to show that the Court has tip-toed towards a more explanatory view of Brady but also faltered and lapsed back into probabilistic inquiry at critical junctures. As a result, this Comment argues, Brady doctrine is diminished in efficacy where it is undennined by probabilistic language and theory, and Brady doctrine should embrace explanationism more wholly. To illustrate this argument and its importance in real-world outcomes, this Comment takes state and federal courts in Texas as a case study. (26) In Texas, probabilistic definitions of materiality have thwarted both Brady and legislative criminal discovery reform. The case study demonstrates the material consequences of not rethinking materiality. Changing our conception of materiality is critical to protecting the right to a fair trial in courthouses and state legislatures.

1. EXPLANATIONISM: EXPLAINING TRIALS

   1. PROBABILISM AND ITS LIMITATIONS

      The litigation process is structured, at its core, by theories of juridical proof. From the specifics of the Federal Rules of Evidence to the overarching burdens of proof, our entire trial system is laden with assumptions and beliefs about how human minds draw inferences and how best to determine truth. (27) These assumptions inform how legal procedure is crafted in an attempt to regulate that inferential process. (28) Because these assumptions structure our rules, and our rules then structure how we decide real-world outcomes, it is pivotal to be clear and accurate about how we conceptualize trials. Failure to do so can inadvertently sabotage the values which our justice system was built to uphold--even those as essential as just outcomes and equality before the law. In criminal cases, when evidentiary issues are decided using faulty assumptions, our criminal convictions are cast into doubt.

      For most of Anglo-American history, it has largely been assumed that juridical proof should be thought about within a probabilistic framework. (29) But scholarly attention to the subject (30) has made it increasingly clear that a probabilistic account of juridical proof is not only inaccurate, but also misleading. (31) At first blush, probabilism appears to fold naturally into our goal for the legal system--to reconstruct how the world was at the time in question and to decide under those conditions whether or not to impose liability. In reality, the theory's limitations render it more harmful than helpful. (32) In comparison, the explanatory account (33) of juridical proof provides an overarching explanation of how factfinders reason with evidence and ultimately arrive at conclusions. (34) In doing so, the explanatory framework better aligns with human cognitive processes and the policy goals driving evidentiary doctrine. (35)

      Lacking a scientific process by which to divine truth, the legal system instead employs procedural tools to arrive at conclusions. These "decision rules" are what the legal system refers to as "burdens of proof": a preponderance of the evidence, clear and convincing evidence, and beyond a reasonable doubt. (36) The applicable burden of proof establishes the burden of persuasion. (37) The burden of persuasion is the threshold a plaintiff must meet to win her case, and the threshold below which the system will not impose a judgment against a defendant. (38) These standards are established with policy goals operating in the background--to obtain accurate results, tempered by pre-established allocations of the risk of error between the parties. (39) In criminal cases, the burden of proof beyond a reasonable doubt allocates the risk of error away from the criminal defendant, placing the burden instead on the State. (40) This allocation reflects the longstanding belief that a false positive--the erroneous condemnation of a criminal defendant--is far worse than a false negative. (41)

      How, then, does a party meet her burden of proof? The probabilistic account of evidence views the standards of proof as probabilities between zero and one, where certain falsity is zero and certain truth is one. (42) The preponderance of the evidence standard would require a probability greater than 0.5 that each element of a...