Prosecutorial Misconduct and Brady Claims Closely Examined in Forthcoming Article

A forthcoming law review article tackles big questions about prosecutorial misconduct. The Brady Database focuses on the principle stated in the 1963 U.S. Supreme Court case Brady v. Maryland: that the government’s withholding of evidence that is material to the determination of either guilt or punishment of a criminal defendant violates the defendant’s constitutional right to due process. While the article focuses on Brady claims in criminal law generally, these claims are often raised by death-sentenced prisoners on appeal, as demonstrated by DPIC’s Prosecutorial Accountability project, which lists more than 200 capital convictions or sentences that have been reversed based on prosecutors’ failure to disclose exculpatory evidence.

The authors explain that the Brady doctrine “is one of the most frequently litigated criminal procedure issues. Yet, despite decades of Brady cases in federal and state courts, we still know relatively little about how Brady claims are litigated, adjudicated, and what such claims can tell us about the criminal justice system writ large.” Authors Brandon L. Garrett, Adam M. Gershowitz, and Jennifer Teitcher state their intention to “[fill] a gap in the data and literature by analyzing five years of Brady claims—over 800 cases—raised in state and federal courts.” The authors find that “[d]espite suggestions in some quarters that prosecutorial misconduct is not a major problem, courts found Brady violations in 10% of the cases in our study. Prosecutors, not police, were responsible for most violations and they were almost never referred to the Bar for discipline.”

The authors identified a set of specific questions that guided their research, including: 

• How many people raise Brady claims?
• How often are Brady allegations successful? 
• When petitioners receive relief on their Brady claim is it typically in state or federal court, and do courts usually act on direct appeal or in post-conviction proceedings? 
• Do most successful Brady claims involve exculpatory evidence or impeachment material? 
• What kinds of evidence—for instance, forensic or eyewitness identifications—is most common in successful Brady claims? 
• Who is at fault more often for failing to disclose Brady material—the prosecutors or the police? 
• Do Brady violations usually result from egregious prosecutorial misconduct or just sloppy negligence? 
• Do judges refer prosecutors to the Bar for potential disciplinary action arising out of Brady violations?

Another goal of the authors was to begin creating “a searchable database … to empower other researchers to further analyze how Brady claims are being litigated and adjudicated.” The researchers also note that because Brady claims are very common, “defense attorneys are therefore forced to sift through thousands of court decisions from state and federal courts in an effort to find analogous precedent.” In the future, these efforts will be greatly aided by the new database. 

The article will be published in the Northwestern Journal of Criminal Law and Criminology.