The ABA on Brady

Today the American Bar Association passed a resolution regarding discovery pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Resolution 104A urges judges to prepare a checklist of disclosure obligations for prosecutors.

Brady requires the state produce exculpatory evidence to defense counsel. The state doesn’t always play fair. According to the report in support of the resolution:

A substantial number of verified wrongful convictions have been attributed to the use of testimony or physical evidence that was contradicted or undermined by other evidence in the hands of the prosecution, law enforcement or other government agencies, but was not disclosed to the defense even though it qualified as exculpatory evidence under Brady.

I doubt a checklist is going to fix the problem. It’s an ethics thing. If a prosecutor is not turning over discoverable materials, then that prosecutor is unethical. The fact that the ABA has to address this issue is a sad commentary. Even sadder, is the question of whether a checklist will make a prosecutor ethical?

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