95 Indiana Law Journal 883 (2020)
Brady v. Maryland imposes a disclosure obligation on the prosecutor and, for this
reason, is understood to burden the prosecutor. This Article asks whether Brady also
benefits the prosecutor, and if so, how and to what extent does it accomplish this?
This Article first considers Brady’s structural impact—how the case influenced
broader dynamics of litigation. Before Brady, legislative reform transformed civil
and criminal litigation by providing pretrial information to civil defendants but not
to criminal defendants. Did this disparate treatment comport with due process?
Brady arguably answered this question by brokering a compromise: in exchange for
imposing minor obligations on the prosecutor at trial, the Court signaled to the
prosecutor that to withhold information before trial does not violate due process.
This Article also explores Brady’s narrative treatment. This Article contends that
the narrative that Brady imposes a significant burden on prosecutors, despite
scholarly efforts to move past it, is pervasive. This narrative of prosecutorial burden
confers unearned legitimacy to case outcomes. This Article finally examines how
prosecutorial interests have deployed Brady politically, focusing on how the
Department of Justice has wielded the Brady obligation to deflect political attempts
to expand pretrial discovery.
In the attempt to provide a fuller account of the case’s benefits and burdens on
litigants, this Article suggests the possibility that Brady can also be viewed as a
prosecutorial ally. This Article uses this possibility as an opportunity to consider
alternative approaches to assessing whether the criminal pretrial procedural regime
comports with due process.
"Flipping the Script on Brady,"
Indiana Law Journal: Vol. 95:
3, Article 6.
Available at: https://www.repository.law.indiana.edu/ilj/vol95/iss3/6
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