“Society wins not only when the guilty are convicted but when the criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.” – Brady v. Maryland, 373 U.S. 83, 87, (1963).

For a trial to be truly fair, the prosecution should turn over all of its evidence to the defense. In other words, the system owes defendants mandatory complete disclosure. Both the specific right to a Fair Trail and reading the Fifth and Sixth Amendments in totality encourage this robust protection for defendants against the State.

Without full disclosure, defendants are at a distinct and unconstitutional disadvantage, making modern trials deeply unfair. For a trial to be fair, defendants need the opportunity to examine all of the evidence available and make a strong case for their defense. Since defendants are almost categorically under-resourced compared to the government, necessities for building a strong case such as gathering evidence and attaining expert witnesses are much more difficult. However, the prosecutor often holds much of the evidence necessary for the defense to build a strong case, in addition to building its own. All a prosecutor has to do is share that information so the best case for each side is at the forefront of the adversarial legal process. To enforce our right to a fair trial, complete prosecutorial disclosure is now necessary.

A fair trial when the Bill of Rights was codified may not have required this level of disclosure. However, the growth of police surveillance capabilities, police and prosecutorial budgets, and the expansion of the criminal law has created a far more formidable adversary on one side of the courtroom. Today the government can gather more evidence surrounding a case than previously dreamed of. For the trial to be fair, the government should be required to share that evidence in advance so that the adversarial process can examine two strong legal theories as intended and as guaranteed by the Bill of Rights.

The Fifth and Sixth Amendments give the people of the United States an extraordinary amount of rights: (1) due process and (2) fair trial, (3) the right against self-incrimination, (4) the right to confront witnesses, (5) the power to subpoena witnesses, (6) the right to assistance of counsel, (7) the right to a trial by jury, and the right to a (8) speedy and (9) public trial. None of these rights is intended to make prosecuting crimes easier. Instead, these constitutional mandates limit the power of the prosecution and the state and intend to counter the government’s systemic advantages, the severity of using state power against the people, and the pitfalls of abuse that come with such power. The amount, heft, and way these rights work together should encourage them all to be read forcefully. For our fair trial right, this would mandate near total prosecutorial disclosure.

Instead of mandating disclosure to secure our right to a fair trial and capture the breadth of these Amendments, the Court has attempted to strike a balance between prosecutors and defense with the Brady rule and its progeny. This rule requires prosecutors and law enforcement to surrender material and exculpatory evidence to defense counsel, but not all of the evidence under their control. This principle was further developed in following cases, and the current standard for materiality was articulated in United States v. Bagley, 473 U.S. 667, (1985): “Evidence is material only if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985). Unfortunately, by balancing power between a systemically advantaged actor and a systemically disadvantaged actor, the Brady rule often fails to ensure a just outcome and is not strong enough to protect our constitutional right to a fair trial.

First, the nature of our adversarial system necessitates that prosecutors argue that the defendant is guilty. When prosecutors review evidence after charges are brought but before the case is tried, they are building a case of guilt. This timing colors their perception of all of the evidence and can understandably lead even the best-intended prosecutor to view exculpatory evidence as neutral when it in fact can prove innocence. In the hands of less moral prosecutors, this rule is not strong enough to ensure disclosure of exculpatory evidence and to prevent innocent defendants from conviction.

For example, in 2012, the Court heard a Brady claim in the case of Smith v. Cain, 565 U.S. 73, (2012). There, Juan Smith had been convicted of five counts of murder, id. The only evidence tying Smith to the murders offered by the state was an identification by an eyewitness to the crime, Larry Boatner, id. After Smith was convicted, however, the defense discovered that the prosecutors had withheld statements by Boatner in which, on the day of the murders, he stated to first responders that he “could not supply a description of the perpetrators other than they were black males,” id. He then reiterated the statement five days later to police stating, “he could not ID anyone because [he] couldn’t see faces,” id. that he “would not know [the assailants] if [he] saw them,” (Id.) and that he “could not identify any of the perpetrators,” id. Law enforcement and prosecutors possessed this exculpatory evidence; yet the state still proceeded in prosecuting Smith. They relied solely on the gruesomeness of the crime and Boatner’s identification, without disclosing the exculpatory evidence. This case demonstrates just how remiss prosecutors are to disclose even obviously exculpatory evidence to secure convictions under the current law.

Second, the safeguard against prosecutors not disclosing exculpatory evidence is through post-conviction review by a judge and similarly comes with significant flaws in ensuring a fair trial. According to United States v. Agurs, 427 U.S. 97, (1976), this review occurs “in context of the entire record,” id. This method allows judges to minimize the importance of exculpatory evidence and stymies the odds of a fair trial. For example, the lone dissent in Smith v. Cain, written by Justice Thomas, claims at length that the statements by Boatner were not material in the context of the entire record. His argument relies on the assumption that the admissions that Boatner could not have recognized the gunmen did not “establish a reasonable probability that the cumulative effect of this evidence would have caused the jury to change its verdict. Id. The fact that a Justice can believe this in such a stark case, 8-1 in favor of Smith, when the other eight Justices believe the evidence obviously materially exculpatory, demonstrates the flawed nature of Brady claim post-conviction review. Judges and prosecutors can speculate about what could have been different, but no one can know whether the evidence would have been determinative. At lower levels when this analysis is applied, some judges will no doubt take Justice Thomas’s view, but there will not be eight other judges on a panel and innocent people will remain imprisoned. This method of review undermines our fair trial right and encourages prosecutors to not disclose.

Third, institutional incentives to secure convictions often eclipse prosecutors’ intended goal of securing a just outcome. It is strange and tragic that the Supreme Court needs to tell prosecutors that they must disclose exculpatory evidence at all. Worse still, prosecutors often will fight against disclosing such evidence. When prosecutors have exculpatory evidence, not disclosing it is antithetical to their goal of achieving justice. However, incentives such as funding, individual personal ambition and the very nature of prosecutorial work compound the flawed legal standard for the prosecutors and law enforcement resulting in minimized or totally preventing disclosure.

Under the Brady doctrine, the Court relies primarily on prosecutors to disclose exculpatory evidence. Stating such in Agurs, the Court remarked, “the prudent prosecutor will resolve doubtful questions in favor of disclosure.” United States v. Agurs, 427 U.S. 97, 112 (1976). This reasoning is illogical. Personal ambition limits the appeal of disclosure to prosecutors because securing convictions—instead of achieving justice—is often a metric of success in prosecutors’ offices. According to recent research, this is a measurable belief as, “district attorneys pursue crimes and longer sentences at higher rates in election years,” Nikki Rojas, Looking at role of prosecutors, politics in mass incarceration, The Harvard Gazette, Dec. 8, 2021. In all but four states, prosecutors are elected politicians who demonstrably respond to the ‘tough on crime’ fervor with more charges, indictments and longer sentences when seeking reelection, Id. Personal and political motivations infect every level of the state’s case against defendants, including when prosecutors review evidence looking for potentially exculpatory evidence.

Finally, prosecutors are tasked with retribution for victims of heinous crimes, which can limit their ability to access what evidence is exculpatory and/or empower biased people in the system to unjustly punish innocent people. Some cases naturally promote prosecutorial “stinginess,”( Alafair S. Burke, Revisiting Prosecutorial Disclosure, 84 Ind. L.J. 481 (2009).), but these cases require the most robust protections. Consider Clarence Brandley’s story. See The Justice Project, Expanded Discovery in Criminal Cases. Brandley was the only Black janitor at a Texas high school where a white, female student was found raped and murdered. Id. The investigators rushed to arrest someone due to public fervor around the case and singled him out as the only Black employee. Id. Brandley was arrested and convicted based on statements from the other janitors that they had seen Brandley follow the victim into the place where she was murdered. Id. 

After Brandley’s conviction, however, the defense discovered that hair and bodily fluids had been found on the victim. Id. This evidence was not disclosed to the defense and was destroyed after the conviction. Id. It also came to light that several of the witnesses had been coerced by the actual perpetrator and law enforcement. Id. Several trial witnesses recanted on the stand and described the threats made by police to coerce testimony. Id. Even in the face of all of this evidence, the Texas Court of Criminal Appeals confirmed the conviction in 1985. Id. In 1986, another janitor even confessed to the murder to his friend. Id. When the friend alerted the prosecutors, they still did not drop charges against Brandley and refused to disclose this information to the defense. Id. Later, when an eyewitness alerted investigators that he saw two of the other school janitors follow the victim to the location of the murder, investigators did not follow this lead and again prevented disclosure to the defense. Id. Eventually, a state district judge granted Brandley a new trial, and the prosecution appealed. Id. The Texas Court of Appeals reheard the case and ruled in a “sharply split en banc opinion,” Id. to affirm the State Judge’s opinion. The prosecution dropped the case only after their appeal for Certiorari was denied by the Supreme Court. Id.

In totality, Brandley’s story is an indictment of the current prosecutorial incentives to close cases and the pervasiveness of racial bias in the criminal law system. We need to mandate disclosure of nearly all evidence by the prosecution in order to combat cases like this.

The main arguments against complete disclosure are (1) it is unfair to prosecutors who already have a heavy burden to bear, (2) witnesses for the prosecution may be subjected to harassment, intimidation, or worse and (3) the system is not prepared for massive amounts of prosecutorial disclosure, which would overburden public defenders. In response, first, as discussed above, the system is supposed to be unfair to prosecutors. What they seek to take away was at the time of founding and is currently the most fundamental of rights: life and liberty. Additionally, proponents of this argument sometimes suggest that both sides should have mandatory complete disclosure. The Fifth Amendment right against self-incrimination and the reality of government advantages should bar any discussion of mandatory disclosure by the defense. The second argument is stronger and must be considered. Ultimately, even a system of presumed complete disclosure must allow witnesses, who would bear a risk if their names or personal details were revealed, to remain anonymous. This exception would also be consistent with the fair trial right as it would be unfair to allow defendants to silence witnesses and victims. Finally, the third argument is well intentioned but misses the point. Practical considerations of an underfunded and biased system should not dictate defendants’ rights. We must ensure that these rights are enforced for current subjects of the system and force grand reform in other ways. Complete disclosure with some minor caveats is worth these consequences.

Ultimately the Brady rule is simply not strong enough to ensure our due process right to a fair trial. The systemic and human incentives weighing on prosecutors all levy against ethical prosecutors disclosing potentially exculpatory evidence and gives room for unethical prosecutors to withhold and argue that evidence is not exculpatory in light of the full record. The standard of review requires crystal clear evidence and sometimes even then it is not enough. Smith v. Cain, 565 U.S. 73, 74, (2012). To solve this problem, complete disclosure by the prosecution, in-keeping with protecting our fair trial rights and a fair reading of the Fifth and Sixth Amendments, is the most viable and just solution.