The Jury's Brady Right

51 Pages Posted: 30 Aug 2017

See all articles by Jason Kreag

Jason Kreag

University of Arizona Rogers College of Law

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

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:

Jason Kreag (Contact Author)

University of Arizona Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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