Beyond Brady: An Eighth Amendment Right to Discovery in Capital Cases


The fiftieth anniversary of Brady v. Maryland has provided yet another opportunity to reflect on the legacy of this landmark case in ensuring a fair trial. Unfortunately, while Brady’s disclosure regime was once heralded, there is now a growing consensus that it is deeply flawed. As Judge Gilbert Merritt of the Sixth Circuit Court of Appeals, writing about Brady violations in the cases that have come before him, has concluded, “the greatest threat to justice and the Rule of Law in death penalty cases is state prosecutorial malfeasance­—an old, widespread, and persistent habit.”

The effect of Brady’s shortcomings is particularly acute in capital cases, where the stakes are the highest. Numerous capital convictions have been overturned due to the belated detection of a prosecutor’s failure to disclose vital exculpatory information. John Thompson, for example, spent almost two decades on death row—and came within weeks of execution—before a private investigator uncovered exculpatory blood evidence that prosecutors had repeatedly failed to disclose.

Many impoverished defendants languish for years on death row before getting relief. While it is these capital defendants who most visibly bear the consequences of Brady violations, the harm from such prosecutorial misconduct is deeper. Where the failure to disclose evidence results in the improper conviction of an innocent defendant, the accompanying failure to apprehend the actual culprit diminishes public safety, as the perpetrator of the original crime is left free to potentially victimize an unknown number of additional persons. Moreover, given the difficulties in unmasking Brady violations, there is no account of how many capital defendants have been executed without getting relief.

Given the finality of the death penalty as well as its gravity, five decades of persistent failure to comply with a basic duty to disclose evidence in capital cases is constitutionally untenable. The Eighth Amendment’s Cruel and Unusual Punishments Clause requires heightened reliability in capital cases. This constitutional imperative necessitates a more robust discovery regime than the one theoretically envisioned by Brady or actually engaged in by many prosecutors.

Part I of this article evaluates the efficacy of the Brady disclosure regime in capital cases; it discusses not only empirical data about the lack of compliance with Brady in capital cases, but also the underlying doctrinal deficiencies of the Brady regime. Part II of the Article, grounded in the Eighth Amendment’s requirement of heightened reliability in capital cases, outlines a constitutional remedy in the form of open-file discovery combined with a continued duty of prosecutorial disclosure, subject to meaningful safeguards against potential misuse of information by defendants.

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