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.