Volume 38, Issue 3 – Anna VanCleave¥
The fiftieth anniversary of Brady v. Maryland brought attention to what scholars and jurists have been describing for years as an epidemic of Brady violations. In an effort to curb patterns of non-disclosure, stakeholders have convened working groups, courts and bar associations have issued reports and recommendations, and the Department of Justice has established policies intended to increase Brady compliance and accountability. The focus of the attention paid to Brady compliance in recent years has been aimed almost exclusively at adult criminal prosecutions. There is no question that the Brady right exists in juvenile court. But in spite of the fact that approximately 1.5 million juvenile cases are processed through the courts each year, little or no attention has been given to the issue of whether the epidemic of Brady violations in adult courts is playing out in the juvenile courts as well.
Volume 38, Issue 3 – Dan Svirsky¥
Practitioners agree that criminal discovery rules have important effects both on how cases develop and on how they get resolved. However, there has been little empirical work done to measure the nature and breadth of these effects. This paper seeks to fill that gap by presenting a statistical analysis of the criminal discovery rules and case outcomes in two similarly situated jurisdictions. First, this paper analyzes theoretical predictions about the effects of criminal discovery rules and initially agrees with the views of many practitioners: increased disclosure should lead to shorter cases. Then, to analyze this hypothesis, the paper presents a new dataset of 200 criminal cases that tracks the charged crime, attorney experience and background, attorney pay structure, bail status, and other variables that could impact case outcomes. The dataset measures and compares these variables across two jurisdictions that use different criminal discovery rules but are otherwise quite similar. Finally, the paper presents the results of this analysis, concluding that strict disclosure rules impose significant costs on legal systems. Specifically, the statistical analysis suggests that the Manhattan court system could save resources by mandating more liberal discovery practices. This policy shift would have the important added benefit of increasing fairness for criminal defendants.
Volume 38, Issue 3 – Jennifer E. Laurin¥
Just over fifty years ago, the Supreme Court reversed the death sentence of convicted murderer John Brady, making him the namesake of one of constitutional criminal procedure’s most bedrock guarantees: the defendant’s right to the disclosure of all of the state’s favorable evidence “material either to guilt or punishment.” Decided against the backdrop of exceedingly restrictive discovery rights for criminal defendants in federal and state courts, Brady had all the makings of another Warren Court watershed.
Volume 38, Issue 3 – Vida B. Johnson¥
Fifty years ago in Brady v. Maryland, the Supreme Court held that “evidence favorable to the accused . . . where the evidence is material either to guilt or punishment” must be disclosed to the defense. Fewer than ten years later, in Giglio v. United States, the Court ruled that prosecutors must disclose information that impeaches the credibility of a government witness, including benefits that have been provided, promised, or offered to the witness. Despite the clarity of these rulings and the increasing public outcry for more just prosecutions, one significant source of impeachment information is routinely withheld from the defense—information about crime victims’ fund requests.