Activating a Brady Pretrial Duty to Disclose Favorable Information: From the Mouths of Supreme Court Justices to Practice


On this fiftieth anniversary of Brady v. Maryland, it is fitting that criminal procedure scholars take the Brady doctrine out and give it another sound beating. While the Brady case itself held promise for the promotion of justice and fairness in criminal trials, its progeny, and the mistaken interpretations of that case law, decimated any such hope. Brady held that “suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or punishment.” The most straight-forward reading of Brady in context was that the word “material” meant “relevant,” in the typical evidentiary sense, making the prosecutorial duty to disclose before and at trial familiar and easily understood by trial lawyers and judges. If the information “would tend to exculpate [the defendant] or reduce the penalty,” then it was a violation of due process if the prosecutor did not disclose the evidence. That reading of “material” did not last long.

Perversely, the Supreme Court’s Brady-applied cases have encouraged a persistent and erroneous belief that prosecutors do not have a pretrial or trial duty to disclose favorable evidence to the defense. Prosecutors, along with many scholars, courts and other stakeholders in the criminal justice system, maintain that Brady allows prosecutors to suppress favorable evidence unless the prosecutor determines—pretrial—that it was “material,” in that, as the Court subsequently defined the term, there is a “reasonable probability” that the evidence would change the outcome of the trial.

This pervasive belief as to the content of the pretrial duty is not part of the holding of any Supreme Court case. Rather, it derives from the dictum of the Court in several cases. That dictum is that the appellate standard for reversal for prosecutorial suppression of Brady evidence is also “logically” the standard for disclosure pretrial. While determination of the appellate standard was necessary to the holding in these cases, determination of the trial standard was not. Not only have prosecutors used this dictum as binding precedent, but scholars and judges have also made the mistake of believing that this is precedent. This language has wreaked havoc on any notion of fundamental fairness expressed in Brady.

In Part I of this Article, we demonstrate that the language in the few Supreme Court cases stating that the appellate standard of review is also the standard for pretrial disclosure is dictum. Part II reiterates the basic arguments from commentators’ decades-long and resounding criticism of the use of an appellate prejudice standard to determine pretrial disclosure. It is fundamentally perverse: it turns a due process right of the accused meant to ensure a fair trial into an entitlement of the prosecution to withhold favorable evidence.

In Part III, we discuss the oral argument in the 2012 Supreme Court case Smith v. Cain, in which a majority of the current members of the Court indicated in separate comments their beliefs that the appellate prejudice standard is not, nor should be, the standard for disclosure at trial. This Part then describes several federal district court decisions on defendants’ motions to compel disclosure of Brady material implementing this same understanding of a separate standard for disclosure at trial.

Finally, in Part IV, we urge that the timing is ripe for the Court to reconsider its dictum on pretrial disclosure under Brady, and we describe ways in which litigants could frame the issue to place the trial standard directly before the Court. Clarifying a Brady violation as a two-step process on appeal would ensure that appellate cases give prosecutors adequate instruction as to their disclosure obligations at trial. Such a two-step inquiry would determine first, whether there was error in that the prosecution withheld favorable evidence, and second, whether that error caused prejudice. In the meantime, we offer some advice to defense attorneys to force more Brady litigation at the trial level, not only to seek disclosure, but also to increase the opportunities for reconsideration of the trial standard on the appellate level.

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