To what extent, if any, does Brady apply in the plea bargaining process?

Many years ago I was asked to talk at an annual meeting of a statewide prosecutors’ association. They wanted me to speak from a defense perspective about common prosecutorial mistakes. Really, this was their idea. I accepted happily.

Sadly, the struggle to obtain information favorable to an accused that rests in the hands of prosecutors and their agents rages on 50 years after the Supreme Court declared in Brady v. Maryland 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. And so the 50th anniversary of Brady, which occurred on May 13, 2013, is less a celebration than a lamentation.

NACDL devised a model statute that would codify the Brady rule. The Fairness in Disclosure of Evidence Act does not attempt to reform criminal discovery generally, but it does seek to clarify and implement the Brady rule in each respect that case law development has made problematic.

Stop. Do you need to read another article that begins with, “Despite its fifty year history, the Brady promise remains unfulfilled”? You know that. You know the law. You know that the actual practice is far afield from what Justice Brennan might have envisioned in the noble pursuit of fairness in Brady v. Maryland.¹ 

The year 1963 saw a U.S. Supreme Court comprised of a diverse array of justices. The Court proved to be a critical element in the establishment of fundamental rights for all Americans, including criminal suspects and juvenile offenders.

Editor’s Note: Although Mike Klinkosum practices law in North Carolina, a state that provides “open-file” discovery (defined as discovery in which everything contained in the files of law enforcement and the prosecution, with the exception of work product and privileged material, is provided to defense attorneys) by statute, such was not the case prior to 2004. See N.C. Gen. Stat. § 15A-903 (2010); S.L. 2004-154, S.B. No. 52 (N.C. 2004). The techniques and strategies discussed in this article were employed by Klinkosum prior to 2004.

Editor’s Note: This article is based upon Colin Starger’s prior work on the evolution of Brady doctrine. See Colin Starger, Expanding Stare Decisis: The Role of Precedent in the Unfolding Dialectic of Brady v. Maryland, 46 Loy. L.A. L. Rev. 77 (2012).

The authors offer a proposal that, if adopted by state and federal judges, would solve many of the problems that have hindered meaningful compliance with Brady over the last 50 years.

These are the stories of real people whose lives were dramatically harmed by the government’s failure to comply with the constitutional demands of Brady.

My first truly searing experience with federal prosecutors violating the Brady rule continues to sear today, nearly a quarter century after I was introduced to the case of United States v. Jeffrey R. MacDonald. Having practiced criminal defense law since 1967, I have, of course, run across the usual array of Brady violations, but nothing I saw before MacDonald, and nothing since, has disgusted me in the same way.

Editor’s Note: Some parts of this article build upon New York Law Journal columns written by Professor Schwartz: Section 1983 Brady Claims, N.Y.L.J., April 18, 2008 at 3; Supreme Court Overturns $14 Million Verdict for Wrongful Conviction, N.Y.L.J., June 15, 2011 at 3; Wrongful Conviction Claim Barred by Prosecutorial Immunity, N.Y.L.J., June 16, 2009 at 3. This article is an original work and substantially modifies, expands, and updates the material in these columns.

The capacity of judges to use Brady to halt the conveyor belt to conviction requires that Brady violations be discovered — a challenging task that demands aggressive and persistent defense lawyering.

Letter to the Editor: What is the percentage of federal criminal defendants who are not convicted? Why are so many cases dismissed? Robert L. Weinberg Letter to the Editor April 2013 04 The Wall Street Journal and the Washington Post recently presented some sobering statistics on the high rate o

The story of Turner v. United States (Sup. Ct. 2017) should be told not just to bemoan the result, but also to highlight the role criminal defense lawyers play, the clients they represent, and the reasons defense lawyers do what they do.