CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, December 17, 2010

Medwed on Prosecutorial Disclosure of Exculpatory Evidence

Medwed daniel Daniel S. Medwed  (University of Utah - S.J. Quinney College of Law) has posted Brady's Bunch of Flaws (Washington and Lee Law Review, Vol. 67, No. 1533, 2010) on SSRN. Here is the abstract:

The 1970s television program The Brady Bunch provided a lighthearted and optimistic portrayal of American family life. A divorced man with three brown-haired boys married a divorced woman with three blonde daughters. They melded together into a happy, well-adjusted crew committed to mad-cap adventures accompanied by syrupy background music. Yet the promise of The Brady Bunch was illusory. Divorce has wreaked havoc on this country. The problems that derive from divorce and remarriage are multifaceted; they seldom lend themselves to tidy resolution in thirty minutes, let alone a lifetime. The show provided a distraction - and a disservice. It sent an inaccurate message about the world to legions of children suffering the painful consequences of divorce in their own families.

In some respects, The Brady Bunch television show resembles the federal constitutional doctrine requiring that prosecutors disclose exculpatory evidence to defendants in criminal cases under Brady v. Maryland. The Supreme Court’s Brady decision in 1963 offered hope that prosecutors can successfully straddle the fence between their two principal responsibilities: to serve simultaneously as zealous advocates and neutral “ministers of justice.” By turning over all evidence that exculpates the accused, prosecutors advance the cause of justice; by retaining all other items of evidence, they safeguard and promote their advocacy role. Brady represented a marriage of two somewhat disparate images of the prosecutorial function. But in the ensuing half-century the ideals of Brady have not gained much traction in practice. Even worse, the doctrine as presently constituted may provide a disservice to the very concept of justice. This Essay examines this state of affairs and puts forth some potential solutions.

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