The origin of the prosecution’s affirmative duty to disclose evidence favorable to the accused can be traced back to “early 20th‑century strictures against misrepresentation.” Kyles v. Whitley, 514 U.S. 419, 432 (1995). The Supreme Court clarified any misunderstandings about the obligation in 1963 with Brady v. Maryland, 373 U.S. 83(1963). In Brady v. Maryland the justices unanimously declared that prosecutors have a constitutional obligation to share with criminal defendants all “exculpatory” evidence officials may have. “Society wins not only when the guilty are convicted but when criminal trials are fair,” wrote Justice William O. Douglass, for the Warren Court. It has long been recognized that withholding exculpatory evidence may impair the “preparation or presentation of the defendant’s case.” United States v. Bagley, 473 U.S. 667, 683 (1985).
Unfortunately, the government’s duty to disclose favorable evidence to the defense under Brady v. Maryland has become one of the most unenforced constitutional mandates in criminal law. Cynthia E. Jones, A Reason to Doubt: The Suppression of Evidence and the Inference of Innocence, 100 J. Crim. L. & Criminology 415 (2010). When it happens, innocent people go to prison, sometimes for extended periods like 25 years. Chuck Lindell, Judge finds that Anderson hid evidence in Morton murder trial American Statesman (2013) (prosecutor, who became a judge, acted to defraud the trial court and Morton’s defense lawyers, resulting in an innocent man serving almost 25 years in prison.) Professor Bennett Gershman, the longtime legal scholar, wrote in 2011 that a “prosecutor’s violation of the obligation to disclose favorable evidence accounts for more miscarriages of justice than any other type of malpractice, but is rarely sanctioned by courts, and almost never by disciplinary bodies.” Moreover, a prosecutor’s actions in withholding exculpatory evidence costs taxpayers. Dwyer, “Prosecutor Misconduct at a Cost of $3.5 Million,” New York Times, October 22, 2008.
There is an undeniable correlation between Brady violations and wrongful convictions. See, e.g., Government Misconduct, INNOCENCE PROJECT OF MINNESOTA, (finding Brady violations in 37% of 74 wrongful convictions). The Innocence Network is not alone in identifying and quantifying this alarming correlation. See, e.g., Lissa Griffin, Innocence and the Suppression of Exculpatory Evidence by Prosecutors, in CONTROVERSIES IN INNOCENCE CASES IN AMERICA, Chap. 5 (Sarah Lucy Cooper ed. 2014) (noting that the second-most “frequent basis for wrongful convictions has been prosecutorial suppression of exculpatory evidence”); N.Y.S. BAR ASS’N, TASK FORCE ON WRONGFUL CONVICTIONS, FINAL REPORT OF THE NEW YORK STATE BAR ASSOCIATION’S TASK FORCE ON WRONGFUL CONVICTIONS 19, 24-26 (2009) (identifying Brady violations as among the causes of over 50% of fifty-three wrongful convictions and compiling examples of violations); Bennett L. Gershman, Reflections on Brady v. Maryland, 47 S. TEX. L. REV. 685, 686 & n.8 (2006) (cataloging sources finding that “hundreds of convictions have been reversed because of the prosecutor’s suppression of exculpatory evidence.”); Peter A. Joy, The Relationship Between Prosecutorial Misconduct and Wrongful Convictions: Shaping Remedies for a Broken System, 2006 WIS. L. REV. 399, 403 n.20, 425 n.134 (2006) (citing studies linking Brady violations to wrongful convictions)