The Brady Colloquy

Abstract

Ensuring that prosecutors comply with their ethical and due process disclosure requirements has been a particularly vexing problem for the criminal justice system, particularly in light of the frequency of wrongful convictions caused by prosecutorial misconduct. The problem stems from the shortcomings of the Brady doctrine and institutional forces that make it difficult to hold prosecutors accountable when they commit misconduct. In response to these challenges, commentators have offered numerous reforms to increase compliance with prosecutors’ disclosure requirements; however, many of these proposals are complex, would impose considerable burdens on the system, and/or would require new legislation or regulations. Instead, this Essay calls for a short Brady colloquy during which a judge would question the prosecutor on the record about her disclosure obligations. Such a colloquy would provide judges an additional tool to enforce Brady, nudge prosecutors to comply with their disclosure obligations, and make it easier to punish prosecutors who commit misconduct. Most importantly, a Brady colloquy could be implemented by judges today without the need for additional legislation or ethical rules.

Keywords: Criminal Procedure, Brady, Prosecutorial Misconduct, Disclosure Requirements, Compliance, Wrongful Convictions