Stare Decisis and the Brady Doctrine

Harvard Law & Policy Review, Vol. 6, p. 415, 2011

17 Pages Posted: 22 Sep 2011 Last revised: 28 Sep 2011

See all articles by Michael Serota

Michael Serota

Arizona State University, Sandra Day O'Connor College of Law; Academy for Justice

Date Written: September 27, 2011


An array of federal district court judges frustrated with the limited scope of the Supreme Court’s approach to constitutionally mandated disclosure - otherwise known as the Brady doctrine - has reinterpreted it so as to eliminate the materiality requirement in the pretrial context. After witnessing the prosecutorial abuse and chronic underdisclosure that Brady’s materiality requirement invites, as well as observing the failure of discovery reformers to remedy the doctrine’s shortcomings through other channels, these judges have provided a judicial solution by ignoring Supreme Court precedent in order to avoid the limitation on the government’s disclosure obligation that the materiality requirement creates. This practice amounts to nothing less than an abrogation of stare decisis based on the view that policy concerns necessitate this much-needed reform of the criminal discovery system. The question that remains - and that I explore in this Essay - is whether the instrumentalism underlying their decisions is acceptable, or even desirable, in light of the constitutional and normative foundations upon which stare decisis rests. This Essay proceeds in three parts. Part I provides a brief introduction to the Brady doctrine with a particular emphasis on the problems caused by the materiality standard’s application in the pretrial context, and then discusses the unsuccessful efforts that have been made to reform the rules of discovery governing the pretrial disclosure of evidence in criminal cases. Part II first contrasts the Supreme Court’s post-Brady cases with the doctrinal approach that some trial judges have taken to eliminate Brady’s materiality requirement in the pretrial context, and then concludes with a discussion of several federal district and appellate court decisions that have rejected this approach to Brady reform. Part III presents the doctrine of stare decisis and discusses its constitutional foundations as well as the rule of law and judicial economy benefits it redounds to our legal system. With these benefits in mind, I then explore the viability of the instrumentalist approach to stare decisis employed by the trial judges who have eliminated the materiality requirement. I conclude that it is not viable, and that criminal discovery reform must therefore proceed through other means.

Suggested Citation

Serota, Michael Eli, Stare Decisis and the Brady Doctrine (September 27, 2011). Harvard Law & Policy Review, Vol. 6, p. 415, 2011 . Available at SSRN:

Michael Eli Serota (Contact Author)

Arizona State University, Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ
United States

Academy for Justice ( email )

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