Brady Lists

Abstract

Brady lists, named after the Supreme Court’s 1963 decision Brady v. Maryland, are lists some prosecutors maintain of law enforcement officers with histories of misconduct that could impact the officers’ credibility. The lists serve as tools for prosecutors to track officer misconduct and disclose that information to defense counsel where appropriate.

Although Brady lists have existed in some form for decades, they have garnered considerably more attention and controversy in the past several years. Brady lists are the subject of extensive media interest and litigation, but surprisingly little legal analysis or scholarship. This article provides a thorough examination into laws and practices surrounding use of Brady lists, as well as controversies arising from these lists.

The results of this examination are disturbing. Nearly sixty years after the Brady decision, the legal system has almost completely failed to create or mandate effective policies for tracking and disclosing information about law enforcement misconduct. Only one state requires prosecutors to maintain Brady lists, and few jurisdictions regulate them at all. Prosecutorial practices for disclosing exculpatory information regarding law enforcement officers vary enormously and often depend on the changing whims of elected officials. While thousands of law enforcement officers with histories of misconduct continue to work and testify in criminal cases, many prosecutors have no Brady lists and no coherent policies for tracking police misconduct information. The legal system’s apathy in addressing these issues tells a sad tale of unconcern for both police misconduct and wrongful convictions.

Keywords: police, brady, evidence, discovery, prosecutors, accountability