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Wednesday, May 09, 2018

Prejudice, Legal Realism, and the Right/Remedy Relationship

Last week, I sketched the contours of a criminal procedure puzzle that’s been on my mind lately. To briefly recap, the puzzle I’m exploring has to do with the unusual way in which courts conceptualize prejudice in two of criminal procedure’s most important doctrinal areas: (1) the Brady rule, which requires prosecutors to disclose (some) exculpatory evidence to the defense as a matter of Due Process, and (2) the Sixth Amendment right to effective assistance of counsel. For both of these rules, the Supreme Court has held that prejudice is an element of the defendant’s constitutional entitlement, which means that if no prejudice ensues from a prosecutor’s failure to disclose exculpatory evidence or from ineffective assistance of counsel (“IAC”), then no constitutional error occurs. By contrast, in most other areas of criminal procedure, courts consider prejudice only in specific remedial contexts—typically as part of harmless error review in appellate or postconviction proceedings—and do not characterize it as an element that restricts the scope of the underlying procedural rights.

Does this distinction make any practical difference? In The Path of the Law, Holmes famously defined law as “prophecies of what the courts will do in fact, and nothing more pretentious.” Inspired by this conception of law, one might dismiss the distinction I’ve identified as unintelligible or, at best, unimportant. After all, when applying any of the doctrines discussed here—Brady, IAC, and harmless error—appellate and postconviction courts will deny a remedy for alleged criminal procedure errors that are not prejudicial. Because our “prophecies” about how these courts will act does not vary across all three doctrines, it is tempting to conclude—as does Dan Epps in a provocative forthcoming article—that they are “functionally indistinguishable” from one another.

I respectfully disagree—with Holmes as to the nature of the right/remedy relationship, and with Epps regarding prejudice law. The grounds for my disagreement with each of them are intertwined. My concern with Holmes’ theory of rights and remedies—at least when applied to constitutional law (as Daryl Levinson and others have done)—is that it is unduly court-centric. By reducing the import of law to remedies supplied by courts, Holmesian legal theory obscures the fact that nonjudicial actors often make important contributions to rights enforcement. Likewise, I worry that Epps overlooks or underestimates the value of criminal procedure enforcement by nonjudicial actors when he equates the denial of appellate and postconviction remedies for nonprejudicial errors (via harmless error review) with the idea, reflected in Brady and IAC law, that nonprejudicial “errors” are not true legal errors at all. Relatedly, Epps also neglects the fact that trial judges often enforce rights that—unlike Brady and IAC, but like most criminal procedure rules—lack a prejudice element even when nonenforcement of those rights at the trial level would not prejudice the defendant and thus would not result in a remedy on appeal.

That’s my theory, anyway—what does the evidence show? In future posts I will show that, for Brady and IAC, (1) there are a number of potentially valuable enforcement mechanisms besides appellate and postconviction remedies, but (2) the prejudice element that the Supreme Court built into the definition of both rights has compromised the efficacy of these alternative enforcement strategies. Specifically, the built-in prejudice rule for Brady undermines, either directly or indirectly, (1) the scope of pretrial disclosure required of prosecutors by the Constitution, (2) the scope of disclosure required by professional ethics rules for prosecutors, and (3) efforts by trial judges to order prosecutors to fully disclose all exculpatory evidence without regard to prejudice. And for IAC, the Supreme Court’s prejudice requirement stands in the way of (1) prospective actions challenging chronically underfunded indigent defense systems through class actions or other devices and (2) attorney malpractice suits by criminal defendants.

Stay tuned as I build my case for these claims in later posts. In the meantime, please send your comments if you think I might have missed other potential lines of argument or would otherwise like to share your thoughts. And thanks to those of you who previously commented on the first installment!

Posted by Justin Murray on May 9, 2018 at 06:25 PM in Constitutional thoughts, Criminal Law, Legal Theory | Permalink


Asher, your questions re attorney malpractice touch on the part of my argument preview that I admittedly need a refresher on. So hopefully I'll be able to help out more in a week or two when I develop that thread of the argument more fully. For now, I'll just mention a few points. First, you're right to suggest that there's no direct doctrinal "spill over" between Sixth Amendment prejudice law and state tort law governing attorney malpractice claims; that's not the sort of argument I intend to make. Second, some states apply claim preclusion to bar civil malpractice actions predicated on attorney conduct that has withstood a Strickland challenge (which, of course, can be defeated either by showing that the attorney's representation was competent OR by showing that the attorney's incompetence was not prejudicial). See Meredith J. Duncan, Criminal Malpractice: A Lawyer’s Holiday, 37 Ga. L. Rev. 1251 (2003). And third, as to damages, I'll need to look at that more closely. You're right that, to the extent the criminal-defendant-turned-malpractice-plaintiff seeks damages connected to the conviction itself, the plaintiff would need to establish a link (i.e. prejudice) between the attorney's malpractice and the conviction. But perhaps there are other theories of injury available in some jurisdictions that don't presuppose a causal connection to the conviction (I am admittedly speculating here); or perhaps nominal damages are available in some jurisdictions; or perhaps, even for conviction-related damage claims, the Strickland prejudice test ("reasonable probability" of a different outcome) is harder for plaintiffs to satisfy than other potentially available tests for causation. Again, my thoughts on this aspect of the argument are still in an early stage of development, so I'm grateful for your engagement and welcome your further ideas.

Posted by: Justin Murray | May 9, 2018 9:59:27 PM

You say that building prejudice into IAC affects criminal malpractice suits, and I look forward to hearing how, but (1) surely an element of malpractice is prejudice/damages, no? And (2) how does Sixth Amendment law spill over into state tort law?

Posted by: Asher Steinberg | May 9, 2018 8:35:09 PM

Lots of folks have asked me this question. And some lower courts have held--contrary to the view I've expressed here--that Brady's "materiality" element (which is defined identically to the IAC "prejudice" element) limits the prosecution's disclosure obligation and isn't just an appellate/remedial inquiry. See, e.g., United States v. Shvarts, 90 F. Supp. 2d 219 (E.D.N.Y. 2000), overruled by United States v. Coppa, 267 F.3d 132 (2d. Cir. 2001). And Supreme Court justices were struggling with this very issue during the oral argument in Smith v. Cain. So your question is totally fair.

I read United States v. Bagley, 473 U.S. 667 (1985), as being the first case to make clear that Brady "materiality"-- in its modern outcome-determinative / prejudice-based sense -- is an element of the Brady right rather than just a harmless error rule for appellate courts. (Indeed, this development was the main focus of Justice Marshall's Bagley dissent.) But the single clearest expression of the Court's commitment to this premise comes not in Bagley, but in Strickler v, Greene, 527 U.S. 263 (1999): "the term 'Brady violation' is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence-that is, to any suppression of so-called 'Brady material'-although, strictly speaking, there is never a real 'Brady violation' unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict."

Posted by: Justin Murray | May 9, 2018 8:28:00 PM

Please excuse my ignorance. Where did the Court say that prejudice is an element of the Brady requirement as opposed to just being necessary for a remedy?

Posted by: Biff | May 9, 2018 7:49:14 PM

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