The Innocent Have Rights Too: Expanding Brady v. Maryland to Provide the Criminally Innocent With a Cause of Action Against Police Officers Who Withhold Exculpatory Evidence

• Publication year: 2022

45 Creighton L. Rev. 1. THE INNOCENT HAVE RIGHTS TOO: EXPANDING BRADY V. MARYLAND TO PROVIDE THE CRIMINALLY INNOCENT WITH A CAUSE OF ACTION AGAINST POLICE OFFICERS WHO WITHHOLD EXCULPATORY EVIDENCE

THE INNOCENT HAVE RIGHTS TOO: EXPANDING BRADY V. MARYLAND TO PROVIDE THE CRIMINALLY INNOCENT WITH A CAUSE OF ACTION AGAINST POLICE OFFICERS WHO WITHHOLD EXCULPATORY EVIDENCE

SUNIL BHAVE (fn*)

I. INTRODUCTION

Imagine being charged with a crime you did not commit. The accusations embarrass you, your spouse, your parents, and your children. You are innocent, so you hire a lawyer-a pricey lawyer-to defend you. You have spent a lot of money to defend your good name and your character and, in the end, you are acquitted.

Now suppose that soon after your acquittal you discover that the police withheld exculpatory evidence from the prosecutor in an effort to secure a false conviction.(fn1) You feel taken advantage of and violated. Not only have you spent a lot of money to defend yourself, but you also have endured the social stigma attached to being charged with a crime. However, can you sue the police who "wronged" you? And to a broader inquiry, did the police "wrong" you?

This Article examines the issue of suing police officers civilly for money damages, pursuant to 42 U.S.C. § 1983, under Brady v. Maryland,(fn2) where the plaintiff has not been convicted of criminal charges.(fn3) A civil rights suit brought pursuant to § 1983 can be an effective way for plaintiffs to redress the constitutional wrongs that police officers have committed against them.(fn4) Through the possibility of compensatory and punitive damages, § 1983 suits against police officers could serve as an effective deterrent against the withholding of exculpatory evidence to obtain convictions.(fn5) But can a criminally innocent plaintiff sue civilly under Brady?

Pursuant to Brady, the Fourteenth Amendment's Due Process Clause requires the disclosure of exculpatory evidence to a criminal defendant if the evidence is "material" to the defendant's guilt or innocence.(fn6) At this time, five federal circuits have either explicitly rejected civil Brady claims where the plaintiff was not convicted of criminal charges or at least suggested that such claims would not be viable.(fn7) This Article argues that courts must recognize civil Brady claims where the plaintiff has not been convicted of the underlying criminal charges. Indeed, the United States Supreme Court has never limited a cause of action under Brady to only those plaintiffs who have been convicted of crimes. Truth be told, the Supreme Court's Brady analysis always has been conducted in the context of criminal or post-conviction relief proceedings where the remedy sought for a Brady violation is a new trial, not money damages. Accordingly, traditional Brady analysis (in the criminal law setting) is misplaced.

Part II of this Article discusses the formulation of the Brady doctrine and the evolution of the prejudicial-error prong within that test. It contends that, regardless of whether withheld exculpatory evidence is "material," or in other words, prejudicial to the victim of a Brady violation, precedent holds that the Due Process Clause of the Fourteenth Amendment is violated whenever the police withhold Brady evidence. Courts must recognize that prejudice under Brady is not of constitutional magnitude; rather, the prejudicial-error analysis under Brady always has been concerned with whether the Brady violation warrants a new criminal trial. However, because a plaintiff alleging a civil Brady claim does not seek a new trial, the absence of a criminal conviction should not bar recovery under § 1983.

Part III analyzes the federal cases that hold that a civil Brady claim cannot be brought pursuant to § 1983 without a finding of prejudice. These cases generally hold that no prejudice ensues from the nondisclosure of exculpatory evidence because the plaintiff was never convicted and, hence, did not receive an unfair trial. These cases hold that, at a minimum, Brady-prejudice must involve a conviction based on the withheld evidence.(fn8)

Nevertheless, the federal courts' analyses fail to examine the true damages caused by the withholding of exculpatory evidence. The federal courts' premise, that withholding exculpatory evidence violates due process only if the evidence is "prejudicial," or in other words, if disclosure of the evidence would warrant a new criminal trial, ignores the fact that the remedy sought by a civil Brady claim is not a new trial.(fn9) The damage suffered by a civil Brady plaintiff is not a criminal conviction. It is, instead, the monetary loss associated with facing charges without the benefit of the withheld exculpatory evidence. Thus, in this sense, due process is violated by the mere withholding of exculpatory evidence.(fn10)

Brady introduced the notion of "prejudicial error" in the criminal law setting, not in the civil setting.(fn11) In the criminal context, or post-conviction relief context, it makes sense to apply prejudicial error to Brady claims because the remedy sought in those cases is a new trial. Indeed, a new trial should be granted only if the claimed error was prejudicial. If the error was not prejudicial, then the absence of the error would have had no effect on the outcome of the trial, and a new trial would not be warranted.(fn12)

Under § 1983, however, the usual remedy sought is not a new trial but, rather, money damages.(fn13) Thus, it makes little sense to limit a § 1983 suit, premised on a Brady claim, to instances where the withheld evidence would have warranted a new criminal trial. While the extent to which a new trial would have been warranted may be relevant to the amount of damages suffered by the plaintiff, it is irrelevant on the issue of whether the police violated the accused's due process rights.(fn14) Focusing attention on the remedy sought by the cause of action helps show when prejudicial error is or is not relevant in Brady claims. In civil Brady cases, prejudicial error is irrelevant.

Part IV addresses civil Brady claims in the context of a living constitution. In today's society, the prevalence of police misconduct in the form of withholding exculpatory evidence to secure convictions requires a civil remedy, which will deter such misconduct. Thus, under a living constitutional theory, the Fourteenth Amendment should be interpreted to mean that one is denied due process if the police have withheld Brady evidence from one's criminal trial, irrespective of whether a criminal conviction results.(fn15) Finally Part V offers a conclusion. In the end, allowing plaintiffs-especially criminally innocent ones-who have been denied Brady evidence the right to sue the police for money damages is essential to protecting the Fourteenth Amendment and guaranteeing that future police misconduct will not continue.

II. EVOLUTION OF THE BRADY DOCTRINE

A. Pre-Brady Precedent

Although Brady v. Maryland(fn16) is generally considered to be the cornerstone case with respect to the government's obligation to turn over exculpatory evidence, the United States Supreme Court laid the groundwork nearly thirty years earlier in Mooney v. Holohan (fn17) for what eventually came to be known as the Brady doctrine. There, Thomas Mooney claimed that his conviction for murder-and subsequent sentence of death-was based on the government's knowing use of perjured testimony and that authorities deliberately suppressed exculpatory evidence.(fn18) Mooney argued that the deliberate withholding of exculpatory evidence during his criminal trial resulted in a denial of due process of law.(fn19) The Court analyzed the case under the legal framework of the Due Process Clause of the Fourteenth Amendment.(fn20) The Court held that a criminal defendant is denied due process when a conviction is obtained through suppression of evidence and use of perjured testimony.(fn21) Interestingly, the Court made no reference to the necessity of prejudice to sustain a claim that due process had been violated.

In Pyle v. Kansas,(fn22) the Court again took up the issue of the effect of a conviction obtained through perjured testimony and suppression of exculpatory evidence. Harry Pyle was a Kansas prisoner who appealed a state court order denying his petition for writ of habeas corpus.(fn23) While his application to the Court was crudely written, it was clear that he claimed that his conviction was obtained by "testimony known to be perjured, and by the suppression of testimony favorable to him."(fn24) Citing Mooney, the Court held that Pyle's allegation "sufficiently charge[d] a deprivation of rights guaranteed by the Federal Constitution."(fn25) Again, the Court held that a criminal defendant is denied due process when exculpatory evidence is suppressed.(fn26) However, the Court did not engage in any analysis regarding the prejudicial impact of the suppression.(fn27) The Court made no mention of prejudice as an element of a due process claim based on the withholding of exculpatory evidence.(fn28)

In 1957, the Warren Court heard the case of Alcorta v. Texas,(fn29) in which it addressed the issue of whether the suppression of exculpatory evidence from a criminal defendant violated due process.(fn30) In Alcorta, a jury convicted Alvaro Alcorta of murder for killing his wife.(fn31) His defense at trial was that he caught his wife and a stranger kissing in a car...