Two New Law Review Articles Highlight Cause and Effect of Brady Violations

One fun­da­men­tal prin­ci­ple of fair­ness upon which our crim­i­nal jus­tice sys­tem relies is the notion that pros­e­cu­tors must dis­close excul­pa­to­ry, mate­r­i­al evi­dence favor­able to defen­dants. This Constitutional oblig­a­tion, estab­lished in Brady v. Maryland (1963), rep­re­sents a crit­i­cal safe­guard against wrong­ful con­vic­tions. Nevertheless, Brady vio­la­tions remain dis­turbing­ly com­mon, with dev­as­tat­ing con­se­quences for defen­dants who may spend years or decades wrong­ly impris­oned. The Death Penalty Information Center has iden­ti­fied more than 200 death-sen­tenced indi­vid­u­als in the mod­ern death penal­ty era whose con­vic­tions or sen­tences were over­turned due to pros­e­cu­to­r­i­al mis­con­duct involv­ing a Brady violation. 

Recently, there have been two sig­nif­i­cant con­tri­bu­tions to research on this sub­ject. Professor Jennifer Mason McAward of Notre Dame Law School ana­lyzed the largest Brady data­base ever assem­bled. Professor Adam M. Gershowitz of William & Mary Law School stud­ied ​“acci­den­tal” Brady vio­la­tions and their systemic causes. 

In a forth­com­ing Vanderbilt Law Review arti­cle, Professor McAward ana­lyzes 386 Brady vio­la­tions adju­di­cat­ed between 2004 and 2022, 49% of which occurred in homi­cide cas­es. The con­cen­tra­tion of Brady vio­la­tions in homi­cide cas­es under­scores the grav­i­ty and con­se­quences of these vio­la­tions and the stag­ger­ing human cost. Significantly, in more than one-third (34%) of all cas­es in the study, Professor McAward found that pros­e­cu­tors with­held evi­dence that sup­port­ed both the defen­dants’ inno­cence and under­mined the cred­i­bil­i­ty of the prosecution’s case the­o­ry or wit­ness­es. In 45% of the cas­es Professor McAward reviewed, the sup­pressed evi­dence could have impeached a crit­i­cal pros­e­cu­tion wit­ness. In 21% of the cas­es in the study, the author con­clud­ed that the sup­pressed evi­dence would have under­mined the cred­i­bil­i­ty of the prosecution’s case the­o­ry or sup­port­ed the defendant’s innocence. 

Professor McAward found that a pros­e­cu­tor ​“act­ing alone, is the sup­pres­sor in almost half (49%) of cas­es.” She also found that a ​“pros­e­cu­tor who vio­lates Brady does so in bad faith in 2 of every 3 cas­es — 66% of the time.” In homi­cide cas­es, when pros­e­cu­tors are the sup­pres­sor (59% of all homi­cide cas­es), Professor McAward found they act in ​“bad faith 74% of the time.” Law enforce­ment plays a sig­nif­i­cant role, too: respon­si­ble for 31% of all Brady vio­la­tions in the study, of which 57% were in bad faith. In 43% of Brady cas­es where law enforce­ment act­ed in good faith, Professor McAward faults inad­e­quate train­ing and resources. In 51% of suc­cess­ful Brady claims in the study, either inad­ver­tent­ly or will­ful­ly, Brady mate­r­i­al ​“nev­er even made its way to the line pros­e­cu­tor.” Professor McAward calls this a ​“sys­tem fail­ure” where a lack of clear guid­ance regard­ing evi­dence dis­clo­sure expos­es the pros­e­cu­to­r­i­al team as ​“just a col­lec­tion of parts that do not work well togeth­er.” 

In his Texas A&M Law Review arti­cle, which draws on near­ly two dozen recent cas­es, Professor Gershowitz attrib­ut­es the fre­quen­cy of Brady vio­la­tions large­ly to struc­tur­al issues, chief among these exces­sive pros­e­cu­tor case­loads, which he says means pros­e­cu­tors lack time to thor­ough­ly review evi­dence. He pro­vides strik­ing exam­ples: in Cook County, pros­e­cu­tors were han­dling ​“300 or more open cas­es at any one time” and in Fort Worth, ​“mis­de­meanor pros­e­cu­tors juggle[d] between 1200 and 1500 mat­ters apiece.” Inadequate train­ing com­pounds this prob­lem: Professor Gershowitz notes that ​“most pros­e­cu­tors receive min­i­mal train­ing about their Brady oblig­a­tions,” a defi­cien­cy that begins in law school and con­tin­ues into prac­tice where many offices take a ​“once and done” approach to train­ing. The issue is fur­ther exac­er­bat­ed by the ris­ing trend in turnover among senior pros­e­cu­tors, leav­ing many dis­trict attor­ney offices with­out insti­tu­tion­al knowl­edge or per­son­nel resources to train new pros­e­cu­tors, accord­ing to Professor Gershowitz. 

Similarly, Professor McAward also found many Brady vio­la­tions result from sys­temic fail­ures, over­whelm­ing case­loads, inad­e­quate train­ing, and poor com­mu­ni­ca­tion. Responsibility for Brady vio­la­tions by any mem­ber of the pros­e­cu­tion team is the prosecutor’s bur­den to bear, and the loose­ly defined ​‘team’ often extends across mul­ti­ple actors out­side of the dis­trict attorney’s office, poten­tial­ly includ­ing fed­er­al agen­cies, fire mar­shals, crime lab­o­ra­to­ries, and law enforce­ment offi­cers. Without clear guid­ance, Professor McAward notes that exam­ples of miscommunication abound. 

Also con­tribut­ing to sys­temic fail­ures, Professor Gershowitz notes, is a patch­work of pro­to­cols among state agen­cies leav­ing ambi­gu­i­ty as to who, what, and when mem­bers of the pros­e­cu­to­r­i­al team should be dis­clos­ing infor­ma­tion with one anoth­er — a find­ing sim­i­lar to that of Professor McAward. He blunt­ly describes the crim­i­nal jus­tice sys­tem as ​“no sys­tem at all … [but] a jig­saw puz­zle with a thou­sand tiny pieces … [in which n]o one is real­ly in charge.” Such coor­di­na­tion chal­lenges are only mag­ni­fied in large, urban juris­dic­tions: ​“In Los Angeles, the pros­e­cu­tor’s office works with near­ly one hun­dred law enforce­ment agen­cies,” Professor Gershowitz writes, mak­ing effi­cient evi­dence shar­ing extra­or­di­nar­i­ly dif­fi­cult. This frag­men­ta­tion cre­ates numer­ous oppor­tu­ni­ties for evi­dence to be lost. Though Brady is often dis­cussed in the con­text of bad-faith sup­pres­sion by pros­e­cu­tors, Professor Gershowitz notes that the doc­trine ​“was designed to pro­tect defen­dants from an unfair tri­al, not to pun­ish pros­e­cu­tors for intentional misconduct.” 

Addressing these prob­lems requires mul­ti­fac­eted reforms. Both schol­ars strong­ly advo­cate for com­pre­hen­sive Brady check­lists, such as step-by-step guides with ​“active com­mands that tell pros­e­cu­tors to take spe­cif­ic affir­ma­tive actions.” These check­lists should remind pros­e­cu­tors ​“who is includ­ed in the pros­e­cu­tion team and which mem­ber to reach out to for each type of evi­dence.” Prosecutor offices should also main­tain an offi­cial Brady list ​“with the names of offi­cers who have engaged in dis­hon­esty,” Professor Gershowitz writes. This pro­posed reform can poten­tial­ly deter will­ful sup­pres­sion by hold­ing offi­cers pro­fes­sion­al­ly respon­si­ble, help­ing pros­e­cu­tors devel­op height­ened aware­ness in cas­es where they work with offi­cers on the Brady list, and pro­vid­ing a resource for pros­e­cu­tors to con­duct swift due dili­gence when col­lect­ing mate­r­i­al evi­dence for disclosure. 

Personnel improve­ments also rep­re­sent a cru­cial start­ing point. Professor Gershowitz rec­om­mends enhanc­ing con­tin­ued edu­ca­tion train­ing meth­ods, includ­ing ​“fre­quent­ly repeat­ing Brady con­cepts” through ​“inter­ac­tive exer­cis­es about hypo­thet­i­cal sce­nar­ios” rather than dry lec­tures. He sug­gests break­ing train­ing into mul­ti­ple bite-sized quizzes or exer­cis­es that pros­e­cu­tors take peri­od­i­cal­ly through­out the year to rein­force learn­ing. He also high­lights the ​“pros­e­cu­tor vacan­cy cri­sis” with ​“15 – 33% of pros­e­cu­tor posi­tions vacant in large dis­trict attor­ney offices.” Filling these vacan­cies would help address exces­sive case­loads and pre­serve institutional knowledge. 

The two authors also sug­gest judi­cial and tech­no­log­i­cal reforms. Professor McAward notes that ​“state court judges are the pri­ma­ry enforcers of Brady in this coun­try” and, there­fore the courts ​“need resources and sup­port to con­tin­ue doing this job well,” includ­ing con­tin­u­ing edu­ca­tion oppor­tu­ni­ties regard­ing Brady vio­la­tions. Technology invest­ments would also be used to improve com­mu­ni­ca­tion between the very diverse com­po­nents that all make up the pros­e­cu­tion team, allow­ing com­mu­ni­ca­tions between law enforce­ment and dis­trict attor­ney offices even as offi­cers walk their beat, con­duct patrol, or par­tic­i­pate in field inves­ti­ga­tions. Professor Gershowitz sug­gests hav­ing a plat­form that holis­ti­cal­ly address­es evi­dence dis­clo­sure among the pros­e­cu­tion team could ensure com­pli­ance with Brady. 

The per­sis­tence of Brady vio­la­tions rep­re­sents a long­stand­ing fail­ure of our crim­i­nal jus­tice sys­tem. The com­ple­men­tary research by Professors McAward and Gershowitz illu­mi­nates both inten­tion­al mis­con­duct and the sys­temic fail­ures that lead to evi­dence sup­pres­sion. Their find­ings con­firm that address­ing Brady vio­la­tions requires a mul­ti-pronged approach, with sug­ges­tions to focus on inad­e­quate train­ing, exces­sive case­loads, poor com­mu­ni­ca­tion sys­tems, and inef­fec­tive pro­to­cols. Both pro­fes­sors pro­pose reforms that they rec­og­nize as improb­a­ble, rang­ing from increased fund­ing for more line pros­e­cu­tors and com­pen­sat­ing senior pros­e­cu­tors to encour­age reten­tion and improv­ing tech­nol­o­gy in the infor­ma­tion flow among mem­bers of the pros­e­cu­tion team. They also pro­pose more achiev­able reforms — enhanced train­ing, com­pre­hen­sive Brady check­lists, improved tech­nol­o­gy, and judi­cial edu­ca­tion — that offer an achiev­able roadmap for improve­ment. Ultimately, ensur­ing Brady com­pli­ance is not mere­ly a tech­ni­cal legal mat­ter but an imper­a­tive essen­tial to the fair­ness and legit­i­ma­cy of our crim­i­nal jus­tice sys­tem. By imple­ment­ing evi­dence-based reforms, juris­dic­tions may reduce both inten­tion­al mis­con­duct and systemic violations.