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A new report, which offers a detailed empirical analysis of the role judicial review plays in the disclosure of favorable information to defendants, has found that application of the “materiality” standard to determine whether or not a Brady violation has occurred has the perverse effect of encouraging prosecutors not to disclose favorable information or disclose it at the last minute.

To qualify for relief under Brady, a defendant must show that information (1) was not disclosed by the prosecution; (2) is favorable to the accused; and (3) is material either to guilt or punishment.  The Supreme Court has defined information as “material” when there is “a reasonable probability that the result of the trial would have been different if the suppressed [evidence] had been disclosed to the defense.”

Justice Thurgood Marshall once described this doctrine as “a pretrial standard that virtually defies definition,” because it requires one of the contending parties—the prosecutor—to determine how a given piece of evidence might or might not effect a trial that has yet to occur, while having unavoidable cognitive bias in favor of conviction.

The report, authored by researchers from the VERITAS Initiative and the National Association of Criminal Defense Lawyers, analyzed six hundred and twenty federal court decisions that reached the merits of a Brady claim, and found that in the vast majority of cases the application of the “materiality” standard shielded otherwise clear instances of failures to disclose favorable information from any judicial consequences.

Strict judicial adherence to the materiality standard without regard to the integrity of the process is a direct endorsement of non-disclosure of favorable information. Until courts embrace a broader disclosure obligation, such as that embodied in the ABA Model Rules, and reject the premise that a prosecution’s obligation is measured solely by Brady, they will continue impeding disclosure of favorable information.

Broadening the Focus of Reform

By focusing on the judiciary’s role in administering the Brady regime, the report broadens the focus of reform from prosecutorial ethics and attempts to create some individual accountability for prosecutorial misconduct.  It does this by shedding light on how judicial doctrine creates an incentive structure that predictably and repeatedly leads to defendants being kept in the dark about information that the government possesses, information that could assist in their defense, but which is never given to them.

The court’s reliance on materiality as the central inquiry in a Brady violation claim has evolved into a standard by which prosecutors measure their disclosure obligations. In doing so, prosecutors conflate two distinct issues: (1) the obligation to disclose favorable information pre-trial, and (2) the court’s application of the materiality standard posttrial.

Taking cues from the way in which courts analyze Brady claims in the post-trial context, the prosecutor’s inquiry becomes not whether a piece of information is favorable, but instead whether the information would have made a difference in the outcome of the case. The judiciary’s almost unilateral focus on materiality conveys a message that non-material favorable information is unimportant and need not be disclosed. As a result, the current system of judicial review fails to promote a culture of compliance, instead fostering Brady violations.

Among the highlights of the reports findings are:

  • Of all the decisions [analyzed], only four percent result in a court finding that the prosecution violated Brady. In those decisions where the prosecution failed to disclose favorable information, it still won 86 percent of the time, with the court concluding the information was not material.
  • Of the 65 decisions that involve late disclosure of favorable information, only one resulted in a Brady violation finding.
  • Brady claims involving information on incentives or deals are more likely to result in a Brady violation finding. Whereas 16 percent of all the decisions involve incentive/deal information, 36 percent of the Brady violation decisions involve incentive/deal information.
  • Favorable information is more likely to be disclosed late or withheld entirely in death penalty decisions. Favorable information was never disclosed or disclosed late by the prosecution in 53 percent of decisions involving the death penalty, but only 34 percent of all the decisions studied.
  • Death penalty decisions are more likely to be resolved with a finding that the information is not material and almost always upon a finding that the information is cumulative. Nearly two-thirds of the death penalty decisions resulted in a finding that the withheld information was not material. By comparison, only one-third of all the decisions studied were resolved with a not material finding.

While the Open File remains committed to shining a light on instances of individual prosecutors and/or DA’s offices’ failures to perform their constitutional duties to courts and defendants, we welcome this report and similar efforts that widen the discussion of how to reform the process of disclosure in criminal cases to insure greater fairness.

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