Brady in an Age of Innocence


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.

In the ensuing half century Brady has come to be both emblematic of and an outlier from the criminal procedure revolution initiated by the Warren Court. In the former respect, the decision in Brady exemplifies that Court’s focus on fair procedures in service of vindicating pure principles of justice—equality or fairness, for example—rather than in service of accurate outcomes. On the other hand, Brady’s mandate that favorable evidence be put in the hands of criminal defendants, especially as developed in subsequent decisions, is rooted not only in fairness per se but also accuracy. Brady, by its own terms, rooted the due process interest at stake in a concern for enabling refutation of the state’s case. Indeed, decisions following Brady have deepened its ties to accuracy concerns as by restricting the meaning of “material” favorable evidence to only that evidence that would have benefited the provably innocent.

Proceeding from the premise that Brady is, perhaps uniquely, both reflective of the Warren Court’s emphasis on abstract procedural values and bound up in substantive concerns, this essay explores the question of how the decision’s legacy fares in a different era in criminal justice. Today’s era-defining jolt comes not from the Supreme Court but from the laboratory, in the form of DNA technology. Long-simmering concerns that our system unwisely privileges procedure over accuracy have boiled to the surface, largely as a result of more than three hundred DNA exonerations over the past two and a half decades. We are in an “age of innocence,” in which securing accurate outcomes and avoiding the missteps catalogued in the growing list of exonerations is eclipsing procedural fairness as the primary focus of criminal justice advocates.

In this age of innocence criminal justice advocates have leveraged mounting evidence of criminal justice error to achieve previously unseen reform successes. This essay identifies three key characteristics of that success and dubs them collectively the “innocence effect.” Those characteristics are (1) that reform is being won primarily in the sub-constitutional realm of state courts and legislatures; (2) that its arguments merge anecdotal evidence of the circumstances associated with wrongful convictions and social science research on law enforcement practices; and (3) that criminal justice insiders—police and prosecutors in particular—who traditionally have fought pro-defense reform measures have supported many innocence-based reforms. The innocence effect has propelled adoption of a range of accuracy-centered reforms—from recording of interrogations to shifts in eyewitness identification practices to regulation of police informants.

Sub-constitutional rules governing disclosure of evidence in criminal cases—referred to here as “discovery doctrine”—would seem a likely candidate for expansion in the innocence era, given their accuracy-enhancing features. Discovery doctrine’s expansion would seem especially likely since Brady violations by prosecutors have increasingly become part of the public debate. In the notorious rape case against three Duke lacrosse players, for example, Brady violations played a key role in the prosecution of innocent people until the charges were dropped.

However, as this essay will elucidate, discovery doctrine has not in fact reaped great benefit from the innocence effect. After placing Brady and discovery doctrine in historical and contemporary context in Part II, the essay develops its evaluative claim in Part III that reform of discovery doctrine has not exemplified the innocence effect as much as one might expect by examining the trajectory of discovery doctrine reform in the state and federal systems. The essay closes by assessing potential explanations for the surprisingly un-buoyed status of discovery reform in the age of innocenceexplanations that highlight some of the potential perils of innocence-centered reform approaches. The essay considers, in closing, strategies to better capture the innocence effect in discovery doctrine reform, as well as the possibility that innocence-centered discourse actually ill-serves Brady’s legacy and that re-seizing procedural fairness might better fortify prosecutorial professionalism and minimize error.

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