Fallen Superheroes and Constitutional Mirages: The Tale of Brady V. Maryland

22 Pages Posted: 16 Dec 2002

See all articles by Scott E. Sundby

Scott E. Sundby

University of Miami School of Law


This essay is based on a lecture given as part of the McGeorge School of Law's Distinguished Speaker Series. The essay examines Brady v. Maryland as one of the Warren Court's criminal procedure cases that has taken on superhero status, announcing not only an important procedural right, but doing so in ringing moral terms that forever associate the right with the case. In Brady, the majority crafted its holding that an accused has a constitutional right to material exculpatory evidence as embodying the prosecutor's ethical duty to pursue "justice" and not simply victory in the courtroom. By crafting the opinion in this way, Brady joined cases like Gideon, Miranda and Mapp as opinions that possess special rhetorical power because they are expressly founded upon fundamental values like equality, human dignity, and the morality of government.

This essay argues, however, that subsequent cases have largely robbed Brady of its superhero powers as a pre-trial discovery doctrine. By setting a very high threshold before exculpatory evidence becomes "material" and must be turned over - evidence that "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict" - the Court essentially has turned Brady from a pre-trial discovery device into a post-trial safety net to catch cases of government misconduct. Indeed, the essay suggests that the materiality standard is now so high that a prosecutor who discovers true Brady evidence prior to trial should ethically be considering dismissal of the charges, let alone the need to turn the evidence over to the defense.

Because of Brady's limited usefulness as a pre-trial source for discovery, the essay urges that we not let the "mirage" of a constitutional right to discovery keep us from debating the need for broader discovery through statutory discovery rights and the rules of criminal procedure.

Suggested Citation

Sundby, Scott E., Fallen Superheroes and Constitutional Mirages: The Tale of Brady V. Maryland. McGeorge Law Review, Vol. 33. Available at SSRN: https://ssrn.com/abstract=361040 or http://dx.doi.org/10.2139/ssrn.361040

Scott E. Sundby (Contact Author)

University of Miami School of Law ( email )

1311 Miller Dr.
Coral Gables, FL 33146
United States
305-284-5848 (Phone)

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