Material to Whom?: Implementing Brady's Duty to Disclose at Trial and during Plea Bargaining

By Fowke, Gerard | American Criminal Law Review, Summer 2013 | Go to article overview

Material to Whom?: Implementing Brady's Duty to Disclose at Trial and during Plea Bargaining


Fowke, Gerard, American Criminal Law Review


The only eyewitness had told the FBI that the murderer was light-skinned and had a moustache. (1) Calvin Bibb had never worn a moustache, and even the U.S. Attorney prosecuting him for murder-for-hire wouldn't call him "light-skinned" in open court. Bibb needed the FBI report recording the eyewitness's statements, and he needed to know where he could find the eyewitness so his attorney could interview her. Invoking Brady v. Maryland, (2) Bibb moved to compel the government to disclose this evidence.

The U.S. Attorney acknowledged the government's constitutional duty under Brady to disclose evidence favorable to Bibb. But the U.S. Attorney minimized that duty, emphasizing that such evidence only needs to be disclosed if material. And evidence is only material if it has a "reasonable probability" of changing the trial's outcome. (3) Not only did the Department of Justice have plenty of circumstantial evidence showing that Bibb had murdered Gerald McCoy for $2500; his co-conspirator was testifying against him as well. The U.S. Attorney did not think there was the slightest chance, much less a "reasonable probability," that impeaching the eyewitness--who was drunk and scared when she saw Bibb shoot McCoy--would change his "slam-dunk" guilty verdict into an acquittal. Hence, the evidence was not material. The government had no duty to disclose it under Brady.

The district court found the "reasonable probability" test problematic. Developed for appellate review, the test was too speculative to use in an ongoing trial. It is impossible to predict how witnesses will testify, how the judge will rule on the parties' motions, and whether the jury will ultimately find guilt. (4) And if Bibb's verdict was unpredictable, how Bibb's verdict might be affected by eyewitness statements about the murderer's moustache and his light skin was even more so. Hence, the district court held that the government had to disclose all evidence favorable to the accused. After a two-week trial, Bibb was acquitted.

Few trial courts have adopted the Bibb court's approach. (5) Most follow one of two other approaches. Trial courts taking the "postconviction" approach hold that Brady violations can only be raised after a conviction. (6) The government has a duty to disclose favorable, material evidence during the trial, but that duty is only enforceable if the accused is convicted and raises the issue on appeal. Trial courts using the "speculative" approach hold that the "reasonable probability" test applies during trial itself: if the evidence has a "reasonable probability" of changing the verdict, the court orders disclosure. (7) But when the duty to disclose is made to rely on a postconviction remedy or a speculative trial outcome, Brady's constitutional principles are diminished, impairing the accuracy and legitimacy of the criminal process. The massive scale of American criminal justice--more than 1.5 million adults are incarcerated (8)--underscores the seriousness of these consequences.

But none of this is inevitable. The fairness of our system of criminal justice depends, in part, on enforcing a duty that already exists. When the accused has not been convicted, courts must enforce Brady by compelling the government to disclose all evidence favorable to the accused, without reference to probabilities, "reasonable" or otherwise, and without regard to its potential impact on the outcome of the proceedings. Brady's constitutional duty applies with equal force during plea bargaining, after indictment, and during the trial itself.

My argument is as follows: Part I examines the Brady v. Maryland decision. "Materiality" in Brady does not entail speculation; it is defined by the basic laws of evidence. And taking the power to decide what must be disclosed away from prosecutors and giving it to judges so they can make trials fairer is part of Brady's design. Part II looks at decisions interpreting Brady. The development of the "reasonable probability" test, when considered next to the doctrines that it was derived from and developed alongside--harmless-error review and prejudice-- shows that, like those doctrines, it applies only during postconviction review. …

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