I. That Justice Shall Be Done 281
II. Brady and the Problem of Self-Policing 282
A. Structural Problems 284
B. Identifying Brady Violations 286
C. Repercussions 288
III. Pursuing Justice 291
IV. Conclusion 296
In Berger v. United States, Justice George Sutherland wrote what has become an oft-cited maxim:
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.1
As commendable as Justice Sutherland's command "that justice shall be done" is, it needs elaboration. Justice Sutherland himself identified two principles to inform the prosecutor's pursuit of this objective.
The first was substantive: "that guilt shall not escape or innocence suffer."2 The second was procedural. Thus, while a prosecutor "may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."3
As abstractions, neither principle is problematic. Prosecutors (we expect) aren't wont to seek indictments or try cases against people they believe are innocent in the first place. Still, "in some cases it is uncertain whether someone is guilty... or innocent of some crime."4 Although criminal procedure has developed since Sutherland wrote, and there are now better-defined rules, it is not always clear when those rules apply. For example, that evidence is exculpatory is in many instances self-evident, but in other cases, it may only be apparent when the evidence is viewed in context or as a case develops.
And so, despite (in most cases) best intentions, prosecutors sometimes do not abide by Justice Sutherland's command. Yet it is all the more important that they do so now. Prosecutorial power has increased as our criminal justice system has moved away from an adversarial system to one of negotiated pleas. Sentencing is more often than not dictated by mandatory minimums or guidelines calculations, which vests more power in the prosecutor through charging decisions. The traditional tools for checking prosecutorial abuse-judges and the juries-have a much smaller role in the process than they once did. Finally, remedial measures, like suits for damages, are all but nonexistent. As a delegate to the Constitutional Convention remarked: "[T]he life of a citizen ought not to depend on the fiat of a single person. Prejudice, resentment, and partiality are among the weaknesses of human nature, and are apt to pervert the judgment of the greatest and best of men."5
But because the life or liberty of the accused now depends increasingly on the decisions of one person, the prosecutor's commitment to seeking justice is all the more important. Here, we try to identify what one facet of seeking justice means and then examine the somewhat more beguiling question of how it could be better sought.
I. That Justice Shall Be Done
Sutherland was right that questions of guilt or innocence are paramount in determining whether justice has been done. Since Blackstone wrote his Commentaries, lawyers have been taught that it is "[b]etter that ten guilty persons escape than that one innocent suffer."6 And as the legal philosopher Ronald Dworkin has also noted: "People have a profound right not to be convicted of crimes of which they are innocent."7 Of course, not everyone feels the same. As one jurist remarked: "Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream."8 However unreal, and there is much to suggest it is not, Sutherland's second principle-procedural fairness-has been a key element of American criminal justice since (and even before) the Founding. …