Indiana Law Journal

Document Type


Publication Date

Summer 2020

Publication Citation

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.