What You Should Have Known Can Hurt You: Knowledge, Access, and Brady in the Balance

38 Pages Posted: 8 Mar 2015

See all articles by Thea Johnson

Thea Johnson

University of Maine School of Law

Date Written: March 6, 2015


In the iconic case of Brady v. Maryland, the Supreme Court required prosecutors to turn over exculpatory information to the defendant. Brady and its progeny carefully balance our desire for a robust adversarial system against a fundamental promise of fairness to the criminal defendant. An emerging rule threatens that balance. The rule, which has been adopted by a majority of circuit courts, releases the government from its obligation to turn over exculpatory information where the defendant “knew or should have known” the essential facts of the exculpatory information. In adopting the "knew or should have known" rule, courts are wrongly valuing a defendant’s knowledge of exculpatory information over his access to that information. In this Article I identify this problematic distinction between knowledge and access, and expose critical problems that the distinction creates. First, the rule places an unfair burden on the criminal defendant for two reasons. It ignores the realities of the modern criminal justice system, where obtaining independent access to exculpatory information can be difficult or impossible for defendants. It also imposes an unfair and unconstitutional burden on the defendant’s right not to testify at trial by putting him in an “impossible predicament.” Second, the rule weakens the integrity and efficiency of our adversarial system by affecting the decision-making capacity of both defendants and prosecutors, particularly given the central role of plea bargaining as a means of resolving cases. In this way, the rule undermines the balancing act between a healthy adversarial system and protection of the rights of the defendant at the heart of Brady.

Keywords: Brady, exculpatory evidence, criminal procedure, criminal discovery, decision-making, public defenders, prosecutors, criminal practice

Suggested Citation

Johnson, Thea, What You Should Have Known Can Hurt You: Knowledge, Access, and Brady in the Balance (March 6, 2015). Georgetown Journal of Legal Ethics, Vol. 28, No. 1, 2015. Available at SSRN: https://ssrn.com/abstract=2574925 or http://dx.doi.org/10.2139/ssrn.2574925

Thea Johnson (Contact Author)

University of Maine School of Law ( email )

246 Deering Ave.
Portland, ME 04106
United States

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