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Monday, May 14, 2018

Brady “Materiality” and the Anemic Implementation of Prosecutors’ Disclosure Obligations

Building on previous posts (here and here) examining how various kinds of prejudice rules impact the efficacy of criminal procedure rights, here I take a close(ish) look at Brady’s prejudice requirement. As mentioned before, the modern Brady doctrine is something of an outlier in constitutional criminal procedure because it classifies prejudice, or “materiality,” as an element that defines the scope of the defendant’s underlying procedural right. (This, at any rate, is what the relevant Supreme Court decisions seem to say—see, e.g., here, here, and here—though some lower court judges, and even several justices, admittedly construe them differently.) Ordinarily, courts define constitutional rights without regard to outcome-determinative prejudice and permit appellate and postconviction courts to consider prejudice (via the harmless error doctrine) only when determining whether an error warrants a remedy. Yet under the Supreme Court’s Brady decisions, no prejudice means no error—at least since Bagley (1985), and possibly earlier. I will not dwell here on the Court’s many purported justifications for placing the Brady rule on this unusual doctrinal path. Instead, I aim to show how the Court’s choice has subverted effective implementation of the Brady right in ways that a harmless error rule would not have.

First, Brady’s materiality element may impair constitutional implementation by appellate and postconviction courts by assigning to the defendant the burden of proof regarding prejudice. Harmless error rules ordinarily place that burden on the prosecution—requiring, for most constitutional claims that are preserved and raised on direct appeal, that the prosecution prove “beyond a reasonable doubt” that the errors were not prejudicial. Modern Brady law, by contrast, requires the defendant to establish a “reasonable probability” that, had the prosecutor disclosed the suppressed exculpatory evidence, the outcome at trial would have been different.

I suspect—and the Supreme Court apparently intended—that these variations in the appellate/postconviction burden of proof probably make a difference in some unascertainable fraction of cases. Yet I doubt that they often make or break a defendant’s prospects for prevailing on a Brady claim. And regardless, what I find more interesting (and troubling) about Brady’s materiality rule lies in its effect on other actors—especially prosecutors, trial judges, and legal ethics regulators—who also have important roles to play in Brady’s implementation. Which brings me to:

Second, Brady’s materiality element restricts prosecutors’ constitutionally required disclosure obligations and thus, presumably, reduces the quantity of exculpatory evidence that prosecutors voluntarily reveal to the defense. By using prejudice to define the scope of the Brady right (and the corresponding duty it imposes on prosecutors), the Supreme Court has invited prosecutors to suppress evidence—even evidence that is exculpatory for Brady purposes—if they, the prosecutors, don’t think there is a “reasonable probability” that disclosure would result in a defense verdict. (Materiality aside, Brady requires prosecutors to disclose “exculpatory” evidence—generously defined as any information that is even minimally “favorable” to the defense—that is “known” to the prosecution.) Given confirmation bias and other impediments that scholars have thoroughly discussed elsewhere (see, e.g., here, here, and here), it’s hard to imagine that even the most well-intentioned prosecutors often come by evidence that they regard as so favorable to the defense that it could plausibly make or break the government’s prospects at trial. (Perhaps recognizing this problem, some chief prosecutors “instruct[] all the attorneys . . . to focus on ‘favorability’ . . . , while ignoring the issue of ‘materiality.” These prosecutors deserve our applause. But needless to say, many have not followed this course.) To the extent, then, that prosecutors accept the Supreme Court’s invitation to disclose exculpatory evidence only if it is reasonably probable that the evidence will affect the outcome favorably to the defense, we should expect them to turn over very little evidence indeed.

That said, constitutional law is of course not the sole repository of prosecutors’ disclosure obligations. Nonconstitutional law and professional ethics rules often impose disclosure obligations that go further than Brady and even, in some jurisdictions, require disclosure of all exculpatory evidence without regard to materiality. But many parts of the country still lack significant criminal discovery safeguards beyond those furnished by Brady. And relatedly…

Finally, in some jurisdictions, courts have cited Brady offensively to gut alternative methods for ensuring a fair level of prosecutorial disclosure. Consider, for instance, the Louisiana Supreme Court’s recent decision in In re Seastrunk (from fall 2017). The issue in that disciplinary action was whether the nonconstitutional disclosure obligations of prosecutors, under Rule 3.8(d) of the Louisiana Rules of Professional Conduct, are “broader than” or “coextensive” with those prescribed by Brady, especially with regard to materiality. The text of Louisiana’s version of Rule 3.8(d) tracks the elements of Brady almost verbatim—except that it contains no reference, whether implicit or explicit, to materiality. Although a fair interpreter of text might take this omission as a clue of some sort, Louisiana’s high court construed Rule 3.8(d) as implicitly containing a materiality restriction identical to Brady’s. By doing so, the court informed Louisiana prosecutors—who, to say the least, do not have a great track record of Brady compliance (see, e.g., here and here)—that neither the Constitution nor professional responsibility requires them to disclose exculpatory evidence that, in their view, would not change the outcome of a trial.

It is commonplace for scholars, and increasingly judges, to complain that Brady has fallen far short of its early promise. Although Brady’s many problems certainly do not all stem from its materiality element (for other key problems, see here), the prior observations suggest, I think, that the materiality doctrine forms an integral part of the story behind Brady’s failure. Agree? Disagree? Other ideas? I look forward to your comments!

Posted by Justin Murray on May 14, 2018 at 06:08 PM | Permalink


Interesting post , it is just , that it is very problematic , to assess, how a potential evidence , could form the game changer in favor of the defendant . Sometimes , technical items , may look trivial , and not so relevant, can make the game changer . Many times , it does depend upon a resourceful and determined lawyer . So , even if a prosecutor , is fair , and just , and honest , and even if not really biased ( go and trust it of course ) it wouldn't do !! Simply because the name of the game is :

Determination , which can lead in its turn , to amazing creativity and resourcefulness sometimes.

This is really a cruel problem .


Posted by: El roam | May 15, 2018 7:45:04 AM

Agreed, El roam. Justice Marshall expressed a concern similar to yours in his dissent in United States v. Bagley, 473 U.S. 667 (1985). Here are a few relevant excerpts:

"When evidence favorable to the defendant is known to exist, disclosure only enhances the quest for truth; it takes no direct toll on that inquiry. Moreover, the existence of any small piece of evidence favorable to the defense may, in a particular case, create just the doubt that prevents the jury from returning a verdict of guilty. The private whys and wherefores of jury deliberations pose an impenetrable barrier to our ability to know just which piece of information might make, or might have made, a difference."

"At the trial level, the duty of the state to effectuate Brady devolves into the duty of the prosecutor; the dual role that the prosecutor must play poses a serious obstacle to implementing Brady. The prosecutor is by trade, if not necessity, a zealous advocate. He is a trained attorney who must aggressively seek convictions in court on behalf of a victimized public. At the same time, as a representative of the state, he must place foremost in his hierarchy of interests the determination of truth. Thus, for purposes of Brady, the prosecutor must abandon his role as an advocate and pore through his files, as objectively as possible, to identify the material that could undermine his case. Given this obviously unharmonious role, it is not surprising that these advocates oftentimes overlook or downplay potentially favorable evidence, often in cases in which there is no doubt that the failure to disclose was a result of absolute good faith."

"The Court's definition poses other, serious problems. Besides legitimizing the nondisclosure of clearly favorable evidence, the standard set out by the Court also asks the prosecutor to predict what effect various pieces of evidence will have on the trial. He must evaluate his case and the case of the defendant—of which he presumably knows very little—and perform the impossible task of deciding whether a certain piece of information will have a significant impact on the trial, bearing in mind that a defendant will later shoulder the heavy burden of proving how it would have affected the outcome. At best, this standard places on the prosecutor a responsibility to speculate, at times without foundation, since the prosecutor will not normally know what strategy the defense will pursue or what evidence the defense will find useful. At worst, the standard invites a prosecutor, whose interests are conflicting, to gamble, to play the odds, and to take a chance that evidence will later turn out not to have been potentially dispositive."

Posted by: Justin Murray | May 15, 2018 9:30:30 AM

Excellent quotations , that is almost precisely the issue , so problematic it is …. Thanks

Posted by: El roam | May 15, 2018 9:47:57 AM

It's probably worth noting that Kyles v. Whitley makes a prosecutor's calculus even more difficult, in that where multiple pieces of evidence are withheld, a prosecutor must determine whether those pieces cumulatively satisfy the materiality standard. (And a prosecutor may need to weigh the cumulative value of info in his/her file alongside info known to police never passed along to prosecutors.)

What's a more workable Brady standard? I've thought a lot about this and I don't know the answer. It'd be nice and clean to just wave a magic wand and impose open file discovery obligations, but the Court is unlikely to overturn cases like Weatherford. So what would be a standard for appellate or postconviction relief that would have a meaningful impact on pretrial practice?

Posted by: Donald Caster | May 16, 2018 3:41:48 PM


I totally agree with your first point. One could imagine spinning off some strange hypotheticals involving the pretrial administration of Kyles's cumulative-materiality rule by prosecutors. Say a prosecutor has 10 items of evidence that are each minimally "exculpatory" within the meaning of Brady. But imagine further that, viewed in isolation, none of the 10 items would, if disclosed, have a "reasonable probability" of changing the outcome, but that any 6 items would (cumulatively) have a reasonably probability of altering the outcome. Does Brady's materiality test allow prosecutors to pick which 6 to disclose--and suppress the rest?

As to your question--"What's a more workable Brady standard?"--my answer would be the same one Justice Marshall gave in his Bagley dissent, which I referenced in an earlier comment. Marshall would have said that appellate/postconviction courts should consider prejudice/materiality (only) via harmless error review--as is true for most other kinds of crimpro error--but that prejudice/materiality has no valid role to play in defining the substantive scope of the Brady right/duty. In short, let judges think about prejudice/materiality when figuring out how to remedy prosecutorial violations of Brady; but don't let prosecutors consider prejudice/materiality as an excuse for suppressing exculpatory evidence.

To be a little more specific about what test for prejudice I would propose appellate/postconviction courts use, I support application (to Brady errors) of the same harmless error rule that currently applies to most other crimpro errors. In other words, I think courts should apply the harmless error rule set out in Chapman v. California, 386 U.S. 18 (1967), if a Brady error is raised on direct appeal, or Brecht v. Abrahamson, 507 U.S. 619 (1993), if the error is raised on habeas. Both of these tests are a bit more lenient to the defendant than Brady's "reasonable probability of a different outcome" test for materiality.

But that's not my primary point. My main focus in this series of posts is that turning Brady "materiality" into a harmless error rule would be a huge improvement from the status quo EVEN IF courts were to retain Brady's current (and unusually harsh) formulation of prejudice/materiality, i.e. "reasonable probability of a different outcome." Why? Because then, at least the law would only permit appellate and postconviction courts to consider and apply this harsh prejudice rule, in the interest of preserving final convictions, and would no longer invite prosecutors to assess materiality/prejudice in a pretrial posture. In short, my main point is that the Brady right/duty should contain no materiality element, and prejudice/materiality should be reconceived as a remedial question reserved for courts to deal with.

What, then, would be left of the elements of Brady? The test would be: the prosecution must turn over "exculpatory or impeaching" evidence about which the prosecution (and affiliated agencies like police departments etc) have "knowledge." "Exculpatory or impeaching" would mean the same thing as under current law: essentially, any evidence that is favorable to the defense to any logically relevant degree.

Posted by: Justin Murray | May 16, 2018 7:12:52 PM

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