Brady v. Maryland is nearly 50 years old and, as a result, one might expect that within the legal profession few implementation problems still exist. After all, the decision is not a toddler. Yet each week there are appellate decisions finding violations of Brady. Some of those violations are egregious.
Miriam H. Baer (Brooklyn Law School) has posted Timing Brady (Columbia Law Review, Vol. 115, No. 1, 2015) on SSRN.
Here is the abstract:
Criminal discovery reform has accelerated in recent years, triggered in part by the prosecution’s widely perceived failure to abide by its constitutional obligation, articulated in Brady v. Maryland, to disclose exculpatory evidence. Practitioners and academics, disillusioned by the Supreme Court’s hands-off approach, have sought reform along three axes: legislatively expanding criminal discovery’s scope, increasing the degree and likelihood of prosecutorial sanctions, and altering the organizational dynamics that encourage prosecutors to withhold exculpatory evidence.
None of these approaches, however, addresses the issue of timing and its effect on prosecutors.
Over the course of a prosecution, incentives to withhold evidence develop, and temptations to withhold it recur. Accordingly, popular reform efforts such as mandatory “open-file” discovery remain incomplete. Just like Brady itself, these well-intentioned reforms are destined to fall short of their goals so long as they fail to address criminal discovery’s temporal dimension.
This Article inquires how timing affects the prosecutor’s decision to disclose or withhold exculpatory evidence in advance of a criminal trial. After laying out timing’s importance, the Article then explores its policy and design implications for criminal discovery reform. By consciously addressing timing, reformers across state and federal jurisdictions can better guarantee the defendant’s access to exculpatory evidence.