Democracy and Criminal Discovery Reform after Connick and Garcetti

61 Pages Posted: 12 Oct 2011 Last revised: 27 Jul 2012

See all articles by Janet Moore

Janet Moore

University of Cincinnati College of Law

Date Written: September 20, 2011


A leading cause of wrongful conviction and wasteful litigation in criminal cases is the nondisclosure of information beneficial to the defense by prosecutors and law enforcement as required by Brady v. Maryland. In Connick v. Thompson and Garcetti v. Ceballos, the Supreme Court weakened Brady’s enforceability by limiting the deterrent force of 42 U.S.C § 1983 liability. Connick highlights Garcetti’s implications as a criminal discovery case, which scholars have not fully analyzed. While Connick restricted § 1983 liability when prosecutors confess to suppressing exculpatory evidence, Garcetti restricted liability when prosecutors are disciplined for bringing Brady evidence to light.

Connick and Garcetti illustrate the unfairness and inefficiency caused by subordination of Due Process disclosure duties to other interests. The cases also point toward a solution. Available empirical evidence indicates that full open file discovery statutes are a model for nationwide reform. The statutes restrict the prosecutorial discretion inherent in Brady. They mandate disclosure by the prosecution to the defense of all information obtained in the investigation of a criminal case. As a model for substantive reform, the successful implementation of full open file discovery also vindicates litigation and legislation as complements to internal agency reform, which some scholars view as the sole effective strategy for regulating prosecutorial decision-making. Taken in this light, the investigation and litigation that led to the Connick and Garcetti rulings can open chapters in a similar reform story. The cases underscore Brady’s weak enforceability and the intolerable ensuing cost in wasted lives, trampled liberty, and squandered criminal justice resources. Their holdings should motivate broader adoption of full open file discovery rules as a prerequisite – a necessary, although not a sufficient condition – for improving efficiency, fairness, and finality in the resolution of criminal cases.

Keywords: Criminal discovery, Due Process, prosecutorial discretion, reform

Suggested Citation

Moore, Janet, Democracy and Criminal Discovery Reform after Connick and Garcetti (September 20, 2011). Brooklyn Law Review, Vol. 77, No. 4, 2012, Available at SSRN:

Janet Moore (Contact Author)

University of Cincinnati College of Law ( email )

Post Office Box 210040
Cincinnati, OH 45221-0040
United States
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