CrimProf Blog

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

Tuesday, June 9, 2020

Meyn on Brady

Ion Meyn (University of Wisconsin Law School) has posted Flipping the Script on Brady (95 Ind. L.J. 833 (2020)) on SSRN. Here is the abstract:
Brady v. Maryland imposes a disclosure obligation on the prosecutor and, for this reason, is understood to burden the prosecutor. This Article asks whether Brady also benefits the prosecutor, and if so, how and to what extent does it accomplish this?

This Article first considers Brady’s structural impact—how the case influenced broader dynamics of litigation. Before Brady, legislative reform transformed civil and criminal litigation by providing pretrial information to civil defendants but not to criminal defendants. Did this disparate treatment comport with due process? Brady arguably answered this question by brokering a compromise: in exchange for imposing minor obligations on the prosecutor at trial, the Court signaled to the prosecutor that to withhold information before trial does not violate due process. This Article also explores Brady’s narrative treatment. This Article contends that the narrative that Brady imposes a significant burden on prosecutors, despite scholarly efforts to move past it, is pervasive. This narrative of prosecutorial burden confers unearned legitimacy to case outcomes. This Article finally examines how prosecutorial interests have deployed Brady politically, focusing on how the Department of Justice has wielded the Brady obligation to deflect political attempts to expand pretrial discovery.

In the attempt to provide a fuller account of the case’s benefits and burdens on litigants, this Article suggests the possibility that Brady can also be viewed as prosecutorial ally. This Article uses this possibility as an opportunity to consider alternative approaches to assessing whether the criminal pretrial procedural regime comports with due process.

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