Brady Reconstructed: An Overdue Expansion of Rights and Remedies

54 Pages Posted: 9 Jul 2015 Last revised: 21 Aug 2015

See all articles by Leonard Sosnov

Leonard Sosnov

Widener University - Delaware Law School

Date Written: 2014


Over fifty years ago, the Supreme Court held in Brady v Maryland, 373 U.S. 83 (1963), that the Due Process Clause requires prosecutors to disclose materially favorable evidence to the defense. The Brady Court emphasized the need to treat all defendants fairly and to provide each accused with a meaningful opportunity to present a defense. While Brady held great promise for defendants to receive fundamentally fair access to evidence, the subsequent decisions of the Court have fallen short of meeting this promise.

Since Brady, the Court has limited the disclosure obligation by failing to separately determine rights and remedies. Additionally, in cases involving access to evidence that is not Brady material, the Court has required the defendant to demonstrate that the government withheld the evidence in bad faith. The Court’s commingling of rights and remedies, along with its insertion of a bad faith requirement, has made it nearly impossible for defendants to succeed on due process challenges to the government’s failure to preserve evidence or to provide evidence to the defense for examination and testing.

The Court’s access to evidence jurisprudence has stagnated for decades. During this time, much has changed. DNA testing has become a powerful exculpatory tool for the defense. Additionally, in recent years, the scientific community and the Court have recognized the potential for error on the part of government forensic scientists due to incompetence or bias.

This article provides a framework of analysis for access to evidence rights and remedies issues. It then applies that framework to advocate the necessary long overdue expanded due process protections that the Court should recognize.

Keywords: criminal law, evidence, Brady v. Maryland, disclosure of evidence, access to evidence

JEL Classification: K14

Suggested Citation

Sosnov, Leonard, Brady Reconstructed: An Overdue Expansion of Rights and Remedies (2014). New Mexico Law Review, Vol. 45, No. 1, 2014; Widener University Delaware Law School Legal Studies Research Paper Series No. 15-11. Available at SSRN:

Leonard Sosnov (Contact Author)

Widener University - Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

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