Disclosing Prosecutorial Misconduct
57 Pages Posted: 6 Apr 2018 Last revised: 7 Feb 2019
Date Written: February 5, 2019
Prosecutorial misconduct in the form of Brady violations continues to plague the criminal justice system. Brady misconduct represents a fundamental breakdown in the adversarial process, denying defendants a fair trial and undermining the legitimacy of the system. Commentators have responded by proposing a range of reforms to increase Brady compliance. Yet these reforms largely ignore the need to remedy the harms from past Brady violations. Furthermore, these proposals focus almost entirely on the harms defendants face from prosecutors’ Brady misconduct, ignoring the harms victims, jurors, witnesses, and others endure because of Brady misconduct. This Article proposes a new remedy to supplement the current responses to Brady misconduct: the Brady Violation Disclosure Letter. It proposes sending a concise letter documenting the misconduct to the relevant stakeholders who participated in the initial trial that was corrupted by a Brady violation. This disclosure is a partial remedy for the range of harms Brady violations create. It also promises to increase Brady compliance and to promote transparency in a criminal justice system that is increasingly opaque. Importantly, this proposal can be implemented immediately without adopting new rules or statutes and without expanding Brady’s existing constitutional protections.
Keywords: Brady violations, prosecutorial misconduct, transparency, due process, fair trial
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