Timing Brady

69 Pages Posted: 1 Feb 2015 Last revised: 4 Feb 2015

Date Written: January 30, 2015


Criminal discovery reform has accelerated in recent years, triggered in part by the prosecution’s widely perceived failure to abide by its constitutional obligation, articulated in Brady v. Maryland, to disclose exculpatory evidence. Practitioners and academics, disillusioned by the Supreme Court’s hands-off approach, have sought reform along three axes: legislatively expanding criminal discovery’s scope, increasing the degree and likelihood of prosecutorial sanctions, and altering the organizational dynamics that encourage prosecutors to withhold exculpatory evidence.

None of these approaches, however, addresses the issue of timing and its effect on prosecutors. Over the course of a prosecution, incentives to withhold evidence develop, and temptations to withhold it recur. Accordingly, popular reform efforts such as mandatory “open-file” discovery remain incomplete. Just like Brady itself, these well-intentioned reforms are destined to fall short of their goals so long as they fail to address criminal discovery’s temporal dimension.

This Article inquires how timing affects the prosecutor’s decision to disclose or withhold exculpatory evidence in advance of a criminal trial. After laying out timing’s importance, the Article then explores its policy and design implications for criminal discovery reform. By consciously addressing timing, reformers across state and federal jurisdictions can better guarantee the defendant’s access to exculpatory evidence.

Keywords: prosecutors, exculpatory evidence, criminal discovery, sanctions, deterrence, hyperbolic discounting, precommitment devices, cognitive bias

Suggested Citation

Baer, Miriam H., Timing Brady (January 30, 2015). Columbia Law Review, Vol. 115, No. 1, 2015, Brooklyn Law School, Legal Studies Paper No. 401, Available at SSRN: https://ssrn.com/abstract=2558220

Miriam H. Baer (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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