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Prosecutors: It is better to overdisclose than to underdisclose exculpatory evidence.

By Marks & Katz, LLC

 Bill of Rights. (From the public domain.) The newest addition to my blogroll -- under the Beyond Blogs category -- is Brady v. Maryland, 373 U.S. 83 (1963). I urge all judges, prosecutors, criminal defense lawyers, and police to read Brady at least once a year, particularly its key holding: "We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady , 373 U.S. at 87.  How often do prosecutors withhold evidence that must be disclosed under Brady, whether intentionally or not, because they are overworked or underresourced, because they do not understand Brady, because they detest Brady, because they have too narrow an interpretation of Brady, because the police are interfering in providing Brady evidence, or because they do not understand that Brady extends to sentencing, and not just to the pre-sentencing phases of a prosecution? How many judges refuse to review evidence in chambers to independently determine whether it is Brady evidence, and instead let the prosecutors -- as officers of the court, but certainly not unbiased ones -- decide what is Brady evidence, which is at best akin to the bank employee who asked me during my pre-law school bank auditing career: "Who's auditing the auditors?" On the other hand, prosecutors are not even auditors...continue to full post

Full post as published by Underdog on August 20, 2009 (boomark / email).