Visiting Assistant Professor at the University of Arizona James E. Rogers College of Law and former Innocence Project Staff Attorney Jason Kreag wrote an essay for Stanford Law Review’s September edition discussing the shortcomings of the Brady doctrine and its effects on the criminal justice system. Kreag writes:
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.
Instead of combating the problem with one of the many complex proposals that would require new legislation or regulations, Kreag calls for a Brady colloquy where a judge would question the prosecutor on the record about 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.
Kreag cites recent cases across the country that have been plagued by violations where prosecutors withheld evidence until closing arguments or entirely. The proposed colloquy is an easy to implement tool that Kreag surmises could curb the epidemic of Brady violations. Following are five questions Kreag says judges could use in most jurisdictions.
- Have you reviewed your file, and the notes and file of any prosecutors who handled this case before you, to determine if these materials include information that is favorable to the defense?
- Have you requested and reviewed the information law enforcement possesses, including information that may not have been reduced to a formal written report, to determine if it contains information that is favorable to the defense?
- Have you identified information that is favorable to the defense, but nonetheless elected not to disclose this information because you believe that the defense is already aware of the information or the information is not material?
- Are you aware that this state’s rules of professional conduct require you to disclose all information known to the prosecutor that tends to be favorable to the defense regardless of whether the material meets the Brady materiality standard?
- Now that you have heard the lines of cross-examination used by the defense and have a more complete understanding of the theory of defense, have you reviewed your file to determine if any additional information must be disclosed?
If judges used these questions regularly, it would increase the incentives for prosecutors to live up to their due process obligations and make it more likely that misconduct will be punished.
Read the full essay