Saturday, March 3, 2012
The Supreme Court’s retreat over the last thirty-plus years from the expansive Fourth Amendment and robust exclusionary rule of Katz and Mapp – the backwards march accompanied by the steady drumbeat of the threat of unsolved crimes and unpunished criminals – provides the narrative structure to criminal procedure classes everywhere. More recently and less obviously, the scope and enforcement of the Brady v. Maryland disclosure rule has been similarly curtailed. Connick v. Thompson, limiting municipal liability for Brady violations under § 1983, is the latest example; in the last ten years the Court has also called into serious doubt the application of Brady to the plea bargaining process and repeatedly adopted restrictive interpretations of the statute governing federal habeas for state prisoners, an important avenue for establishing Brady violations. This trend is more difficult to explain, at least at first glance.
The Fourth Amendment exclusionary rule comes at an obvious cost to the criminal justice system’s ability to convict the guilty, although the exact price is hotly contested. More broadly, the Fourth Amendment itself involves an implicit tradeoff: more privacy for less security. If there are a few more government agents looking through our phone records or arresting us on expired warrants, there are fewer unbroken crime rings and criminals going free on technicalities. Or at least that’s the idea. In the Brady context, on the other hand, the tradeoffs are less obvious. As announced by the Court in 1985, exculpatory evidence is “material” under Brady “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Under this formulation, and in stark contrast to the Fourth Amendment, there is little chance of a windfall for the truly deserving of conviction – only those who may well have been acquitted had all the available evidence been presented can get relief. What, then, is motivating the Court’s erosion of the Brady right and its remedies? And can it be justified? This essay suggests that, at a broad level, the answer lies in part in the Court’s increasing confidence in the good faith and professionalism of police and prosecutors. Brady and its kin were crafted in an era of greater judicial skepticism of the motives and techniques of the actors in the criminal justice system, and as that skepticism has faded, so has Brady. Whether and to what extent this increased faith is warranted on its own terms is a subject of considerable debate, but even if it is, this essay argues that our evolving understanding of the causes of error – and specifically how it can systematically occur despite the absence of bad faith – in criminal justice militates strongly in favor of retaining Brady and other skeptical rules.