The Right to Evidence of Innocence Before Pleading Guilty

63 Pages Posted: 2 Dec 2018 Last revised: 15 Mar 2021

See all articles by Colin Miller

Colin Miller

University of South Carolina School of Law

Date Written: November 8, 2018


George Alvarez, a ninth grade, special education student, pleaded guilty to assault of a peace officer in Texas. Four years into his sentence, Alvarez learned that the State had suppressed a video of the incident that proved his actual innocence. Alvarez claimed that the city violated the Brady doctrine by failing to disclose material exculpatory evidence. In rejecting his claim, the Fifth Circuit concluded that “case law from the Supreme Court, this circuit, and other circuits does not affirmatively establish that a constitutional violation occurs when Brady material is not shared during the plea bargaining process.” Given that 95% of convictions are secured through guilty pleas, such an interpretation of Brady means that few defendants are entitled to evidence of their innocence before being convicted.

This article argues, however, that these courts are ignoring a forgotten Supreme Court opinion that was central to the creation of the Brady doctrine. In its opinion in Wilde v. Wyoming, the Court recognized that the suppression of favorable substantive evidence before a defendant’s guilty plea can violate the Due Process Clause. Later, the Court stated that its Brady opinion was merely an extension of its prior opinions such as Wilde. And yet, while each of the other opinions that formed the foundation for the Brady doctrine has had a lasting legacy, the Wilde opinion has been lost to time despite never being repudiated. This article calls for a resurrection of Wilde and the recognition of a right to evidence of innocence before pleading guilty.

Keywords: Brady v. Maryland, Actual Innocence, Plea Bargaining

JEL Classification: K14, K42

Suggested Citation

Miller, Colin, The Right to Evidence of Innocence Before Pleading Guilty (November 8, 2018). UC Davis Law Review, Vol. 53, No. 271, 2019, Available at SSRN: or

Colin Miller (Contact Author)

University of South Carolina School of Law ( email )

1525 Senate Street
Columbia, SC 29208
United States

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