51 Pages Posted: 30 Aug 2017
Date Written: August 28, 2017
When prosecutors violate due process by suppressing evidence favorable to criminal defendants in violation of Brady v. Maryland, their misconduct causes serious harm to defendants and to the system. Scholars have focused on these harms, responding by offering proposals designed to increase compliance with the defendant’s Brady right. Nevertheless, the misconduct continues, as is evident by the steady stream of exonerations and other cases overturned because of Brady violations. This Article addresses this problem from a different angle. It demonstrates that the narrow focus on harms to the defendant and the system overlooks harms to jurors and the institution of the jury. That is, violations of the defendant’s Brady right prevent the jury from fulfilling its constitutional role and render it an instrument of the prosecutor’s misconduct. To address these overlooked harms, this Article proposes a separate and distinct Brady-like right in the jury — the jury’s Brady right. It finds support for this right in the Sixth Amendment and the Due Process Clause. Recognizing this right will reinforce the jury as an essential constitutional actor. Furthermore, even if the Supreme Court is not prepared to recognize a new right in the jury, explicit consideration of the harms to the jury from violations of the defendant’s Brady right offers promise for increasing compliance with Brady.
Keywords: criminal procedure, prosecutorial ethics, criminal law, due process, wrongful conviction, Sixth Amendment
Suggested Citation: Suggested Citation
Kreag, Jason, The Jury's Brady Right (August 28, 2017). 98 Boston University Law Review ___ (2018 Forthcoming); Arizona Legal Studies Discussion Paper No. 17-21. Available at SSRN: https://ssrn.com/abstract=3028350