Here Comes the Judge: A Model for Judicial Oversight and Regulation of the Brady Disclosure Duty

 In Symposium

Under the current state of the law, there is no mechanism in place to ensure that a criminal defendant receives information in the exclusive possession of the government that negates guilt, undermines the strength of the government’s case, or reduces the sentence that could be imposed. Whenever a prosecutor wants to do so, she can suppress this favorable information and prevent the court and the defense from ever learning of its existence. Without oversight and with very little accountability, prosecutors have been vested with the power to determine whether and when to disclose favorable evidence to the defense. Although many prosecutors diligently comply with the constitutional disclosure duty mandated by Brady v. Maryland, for a wide variety of reasons, others do not, or do not do so invariably. Every year, there are numerous reported opinions where the court finds that a prosecutor has failed to disclose favorable information to the defense. As one scholar has noted, “violations of Brady are the most recurring and pervasive of all constitutional procedural violations.”

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