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!