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Thursday, May 31, 2018

Rethinking Criminal Procedure’s Law of Prejudice

This will be my last post here in 2018, so I’d like to thank Howard for bringing me on as a guest, and all of you for making the experience fun and valuable. Message me if you’d like to keep the discussion going.

I’ve spent much of this month criticizing, debunking, attacking, and basically just saying mean things about two central pillars of criminal procedure’s law of prejudice—the materiality element of prosecutors’ constitutional disclosure obligations under Brady, and the prejudice component of the test for ineffective assistance of counsel (“IAC”) claims. Although there’s a little more snark still to come in this post, I figured it’s time for me to switch gears a bit and finally say something constructive. So—where should we go from here?

My first set of recommendations is for the courts. For starters, the Supreme Court should reconceptualize Brady’s materiality requirement and the IAC prejudice rule as remedial questions—more precisely, the Court should hold that materiality and prejudice are species of harmless error review. By restyling materiality and prejudice as part of the harmless error doctrine, the Court could make clear (among other things) that prosecutors may not speculate about materiality when carrying out their disclosure obligations before trial and that courts cannot dismiss prospective IAC lawsuits on prejudice grounds. And regardless of what the Supreme Court decides to do about the Brady and IAC prejudice rules, lower courts should think twice before “[b]orrowing” from those rules in other areas of criminal procedure.

Some readers might react to this proposal by dismissing out of hand the possibility that the Supreme Court might overturn (or, ahem, “clarify”) some of its landmark prejudice decisions that have been on the books since the ‘70s (for Brady) and ‘80s (for IAC). I get that. But at least with respect to Brady, a majority of the justices seemed poised to do just that during the 2011 oral argument in Smith v. Cain (though they ultimately resolved the case, in the defendant’s favor, on narrow factual grounds). And as for IAC… who knows? Miracles can happen! And whether or not the Supreme Court decides to pull the plug on its traditional understanding of the Sixth Amendment right to counsel, state constitutions have their own right to counsel provisions, and nothing prevents state courts from interpreting those provisions in a more generous fashion. (Aloha, Hawaii!)

So much for the courts. There are important steps nonjudicial actors could take—and to some extent already are taking—to partially compensate for the mess the Supreme Court has made out of its Brady and IAC jurisprudence.

With respect to prosecutorial disclosure practices, there has recently been significant progress on several fronts ranging from (1) enactment of open-file laws in a few jurisdictions and (2) increasingly aggressive bar discipline actions against evidence-suppressing prosecutors to (3) somewhat improved self-regulation by certain prosecutors’ offices. Each of these developments brings us closer to a sensible world where prosecutors would presumptively disclose all exculpatory evidence to the defense without guessing at whether the evidence is likely to prompt a jury to acquit.

Regarding IAC, there are somewhat fewer (and bleaker) options for fixing broken indigent defense systems without an assist from the courts in light of the sad reality that it’s highly unpopular to spend money on adequate lawyers for poor people accused of crime. But recent events in New York offer some hope (and more importantly, ideas) indicating that indigent defense reform is achievable through the right mix of systemic litigation, lobbying, bureaucratic leadership, and dumb luck. And in the long-run, the traditionally inhospitable political economy of indigent defense will likely become somewhat less formidable as the broader social movement against mass incarceration continues to gain ground, reducing the outrageous caseloads borne by far too many public defenders and cash-strapped criminal courts.

Posted by Justin Murray on May 31, 2018 at 05:31 PM | Permalink


Thanks for useful posts indeed . See you around ….

Posted by: El roam | May 31, 2018 8:00:07 PM

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