Faculty Post: Fair Play? Prosecutors and the Duty to Disclose

by Professor Daniel S. Medwed

The famous phrase “with great power comes great responsibility” is associated not only with Spiderman, but also with American prosecutors, who possess the discretion to charge people with crimes and are therefore arguably the most powerful players in the criminal justice system. One significant check on that power is the Brady doctrine, which stems from a 1963 Supreme Court case holding that, prior to trial, prosecutors must disclose all information to the defense that is “favorable” to the defendant and “material” to guilt or punishment.

As the Brady doctrine firmly enters middle age, it is time to take stock and evaluate whether it has realized its early ideals as a mechanism to ensure an element of fair play in the criminal justice system. Indeed, I – along with other scholars – have analyzed Brady in recent years and largely concluded that it has not fulfilled its early promise. Most notably, the New York Times recently published an editorial that criticizes prosecutors for neglecting their discovery obligations.

Why are prosecutors not consistently complying with Brady? The answers are numerous and complex, but the main ones are worth mentioning. First, the doctrine itself is challenging for prosecutors to apply in practice. When exactly is evidence “favorable” and “material”? Moreover, how can prosecutors accurately make this determination before trial and thus before the case has taken shape and the defense strategy divulged? Second, what practical incentives do prosecutors have to make such a determination and turn over the evidence? Doing so would aid the defense and failing to do so would presumably escape notice because no one would necessarily even know about the existence of the material. What is more, even if the failure to disclose Brady material comes to light, the consequences for prosecutors are minimal. Disciplinary agencies seldom punish prosecutors for discovery violations and appellate judges, as a matter of courtesy, rarely publish the names of errant individual prosecutors in their opinions. In terms of the case itself, the typical remedy is a new trial for the defendant. In other words, prosecutors have the perfect excuse to dodge their Brady duties– “this evidence isn’t favorable and material” – and few negative ramifications for such a dodge.

What can be done to change this state of affairs? First and foremost, as the New York Times editorial points out, states could implement “open file” discovery rules, that is, require prosecutors to turn over everything in their files (except certain sensitive information that could compromise other cases or subject witnesses to harm) and allow them to avoid making the tricky assessment of whether a particular item is favorable and material. Second, we should encourage disciplinary boards and appellate judges to be tougher on prosecutors, to put their feet to their fire, to force them to bear the responsibility that their power so clearly demands of them. Finally, come to  Northeastern and work with me to make these changes a reality, as well as others that would benefit our criminal justice system!

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