by Jason Kreag
Visiting Assistant Professor, University of Arizona James E. Rogers College of Law
Ensuring that prosecutors comply with their ethical and due process disclosure requirements has been a distinctly vexing problem for the criminal justice system, particularly in light of the frequency of wrongful convictions caused by prosecutorial misconduct. The problem stems from the shortcomings of the Brady doctrine and institutional forces that make it difficult to hold prosecutors accountable when they commit misconduct. In response to these challenges, commentators have offered numerous reforms to increase compliance with prosecutors’ disclosure requirements; however, many of these proposals are complex, would impose considerable burdens on the system, and/or would require new legislation or regulations. Instead, this Essay calls for a short Brady colloquy during which a judge would question the prosecutor on the record about her disclosure obligations. Such a colloquy would provide judges an additional tool to enforce Brady, nudge prosecutors to comply with their disclosure obligations, and make it easier to punish prosecutors who commit misconduct. Most importantly, judges could implement a Brady colloquy today without the need for additional legislation or ethical rules.
I think a Brady colloquy is a good idea. But Brady poses problems even more serious than the fact that it’s not followed and not enforced. It has led a lot of prosecutors to believe that when they deliberately hide evidence, of even fabricate evidence or suborn perjury, it’s no different in the due process calculus than if it’s an “accident”. That is, Brady’s application “regardless of the good faith or bad faith of the prosecution” has led some prosecutors to believe. incredibly, that it doesn’t matter if they act in bad faith. It’s a ridiculous argument, but they’re making it, and they’ve been making it for decades. And some federal appeals court judges are even buying it.
There are other posts on the subject if you follow the links. If you’re interested.