By Adam M. Gershowitz  

Prosecutors are often seen as the villains of the criminal justice system. And the most villainous thing a prosecutor can do is to commit an intentional Brady violation by withholding favorable and material evidence from the defense. Not surprisingly, there is a wide literature criticizing prosecutors for flagrant misconduct. But not all Brady violations are intentional. Prosecutors sometimes—perhaps often—commit accidental Brady violations by inadvertently failing to recognize favorable evidence. Because many prosecutors are inexperienced, overworked, and under-trained, they do not recognize exculpatory or impeachment evidence when it is in their files. Additionally, prosecutors also fail to disclose evidence that is in the hands of police, sheriffs, crime laboratories, and other government agencies. Because the criminal justice “system” is riddled with communication breakdowns, prosecutors are sometimes unaware of Brady evidence that they were obligated to disclose. The breadth of the Brady doctrine and the dysfunction of the criminal justice system do not make Brady violations acceptable or harmless. To the contrary, Brady errors are serious violations of a defendant’s constitutional rights. To reduce future violations, however, we cannot simply condemn prosecutors for intentional misconduct. Instead, it is important to understand why accidental Brady violations occur. Drawing on nearly two-dozen recent cases, this article builds a typology of situations where accidental Brady violations occur, and it sets forth solutions for reducing accidental violations in the future.   

  12 Tex. A&M L. Rev. 533 (2025)., 59p.

By Jennifer Mason McAward

This largest-ever study of adjudicated violations of Brady v. Maryland provides a detailed and nuanced understanding of who suppresses material evidence in criminal cases, why, how, where, and how often. Its findings complicate the conventional wisdom that Brady violations are the work of nefarious prosecutors who intentionally withhold material evidence from criminal defendants. While it is true that bad faith permeates this area of constitutional non-compliance, a substantial minority of Brady cases stem from good faith errors and suppression by law enforcement officers. Most Brady violations occur in a small number of states, and most often state courts provide relief. And while there is not quantitative evidence of an epidemic, the individual effects of Brady violations are severe. On average, a defendant whose Brady rights are violated spends more time in prison than a defendant who is later exonerated. When government officials routinely violate a clearly established constitutional right like Brady with such negative consequences, the time is ripe for evidence-based interventions to enhance constitutional compliance. The insights from this study point to a new range of strategies. For example, focusing on preventing good faith Brady errors, especially in non-homicide cases, may be substantially more productive than focusing on punishing bad faith Brady violationsa tactic that has proven to be frustratingly unsuccessful. Relatedly, working with law enforcement officers to better identify and submit potential Brady evidence to prosecutors may create a smoother pipeline for the eventual production of material evidence to defendants. Ultimately, by providing unprecedented detail about historical Brady violations, this study will serve the cause of future overall Brady compliance.

Vanderbilt Law Review (forthcoming April 2025), 67p.