What To Do To Enforce Brady

It has been over 50 years since the United States Supreme Court decided Brady v Maryland. Very few lawyers are still practicing who practiced before there decision. And yet we still see Brady violations with some degree of regularity.

Brian MurrayPaul S. Heaton and Jon Gould (Seton Hall Law School, University of Pennsylvania Law School and ASU School of Criminology and Criminal Justice) have posted Qualifying Prosecutorial Immunity Through Brady Claims(Iowa Law Review, Vol. 107, 2021-22) on SSRN. Here is the abstract: This Article considers the soundness of the doctrine of absolute immunity as it relates to Brady violations. While absolute immunity serves to protect prosecutors from civil liability for good-faith efforts to act appropriately in their official capacity, current immunity doctrine also creates a potentially large class of injury victims—those who are subjected to wrongful imprisonment due to Brady violations—with no access to justice. Moreover, by removing prosecutors from the incentive-shaping forces of the tort system that are thought in other contexts to promote safety, absolute immunity doctrine may under-incentivize prosecutorial compliance with constitutional and statutory requirements and increase criminal justice system error.

The Article seeks to identify ways to use the civil justice system to promote prosecutorial compliance with Brady, while recognizing the need to provide appropriate civil protections to enable prosecutors to fulfill their unique role within the criminal justice system. After developing a novel taxonomy of Brady cases, evaluating such cases against basic tort principles, and considering the prosecutorial community’s views regarding appropriate Brady remedies, it proposes a statutory modification of absolute immunity that might better regulate and incentivize prosecutor behavior, reduce wrongful convictions, and improve access to justice.

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