Two informative and interesting recent articles discuss the erosion of the Brady rule via the “due diligence” standard (could the defense have obtained the exculpatory evidence on its own?) and how discovery could be improved if the due diligence rule could be reconsidered and both prosecution and defense could, at least in the discovery phase, adopt one aspect of the continental/inquisitorial system: collaborate in a search for the truth with respect to discovery. Such collaboration is not without challenges for both prosecution and defense. These two articles, taken together, do an excellent job of examining the issues. Here are the citations: “Discovery from the Trenches: The Future of Brady” (UCLA Law Review Discourse 74 (2013) by noted scholar and commentator Laurie Levinson and “Prosecutors Hide, Defendants Seek: The Erosion of Brady Through the Defendant Due Diligence Rule (UCLA Law Review 138 (2012) by Kate Weisburd.
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I continue to find Brady Rule violations in all kinds of cases — even current cases taking place with supposedly liberalized discovery rules. In once case, it appears the detective withheld exculpatory information from the prosecutor because he feared the prosecutor would have to disclose it. So discovery is still a shell game.
In my lay opinion , a classic Brady violation was the game playing by attorney (former Logan County, OH APA) Kellogg-Martin .
I will share later why I am of that opinion .
*Kimberly Jo Kellogg-Martin – AR#: 0022083 – Active
Director/Attorney , Logan County CSEA
120 E Sandusky Av , Bellefontaine OH 43311
937.599.7232
Ohio Northern University – Ohio Admission: 10/29/1984