Monday, May 20, 2013

Brady v. Maryland turns 50 while many articles lament comment on how it has failed to fulfill its promise

About ten days ago Brady v Maryland turned 50 years old.  That landmark decision, one of those so important most lawyers will recognize it by name, recognized that prosecutors have a duty to disclose exculpatory evidence to criminal defendants.  This duty was later expanded as part of Model Rule of Professional Conduct 3.8.

Unfortunately, it is well known that failure to abide by the duty is a common argument in support of post-conviction relief claims.  In some instances (as in the cases of Smith v. Cain and Connick v. Thompson) it has been claimed that prosecutors' offices routinely violate the duty.

A number of articles during the past few days have discussed the issue.  Here are a few links:

The New York Times laments in an editorial that "there is good reason to believe that violations [of the Brady rule] are widespread" and that "[the rule] has been restricted by subsequent rulings of the court and has been severely weakened by a near complete lack of punishment for prosecutors who flout the rule. The court has also declined to require the disclosure of such evidence during negotiations in plea bargains, which account for about 95 percent of cases."  You can read the full article here.

Seeking Justice comments on the NYT editorial here.

Seeking Justice also wished Brady a Happy Birthday here.

The Atlantic published an article on Brady here.

Prof. Bruce Green has published an article proposing a possible new approach to the duty under Brady that would address the fact that discovery is far narrower in federal criminal cases than in federal civil litigation.  You can access the article here.  (thanks to The Legal Ethics Forum for this link.)

Finally, for a comment on Bruce Green's article go to Otherwise.

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