Two New Law Review Articles Highlight Cause and Effect of Brady Violations

One fun­da­men­tal prin­ci­ple of fair­ness upon which our crim­i­nal jus­tice sys­tem relies is the notion that pros­e­cu­tors must dis­close excul­pa­to­ry, mate­r­i­al evi­dence favor­able to defen­dants. This Constitutional oblig­a­tion, estab­lished in Brady v. Maryland (1963), rep­re­sents a crit­i­cal safe­guard against wrong­ful con­vic­tions. Nevertheless, Brady vio­la­tions remain dis­turbing­ly com­mon, with dev­as­tat­ing con­se­quences for defen­dants who may spend years or decades wrong­ly impris­oned. The Death Penalty Information Center has iden­ti­fied more than 200 death-sen­tenced indi­vid­u­als in the mod­ern death penal­ty era whose con­vic­tions or sen­tences were over­turned due to pros­e­cu­to­r­i­al mis­con­duct involv­ing a Brady violation.

Recently, there have been two sig­nif­i­cant con­tri­bu­tions to research on this sub­ject. Professor Jennifer Mason McAward of Notre Dame Law School ana­lyzed the largest Brady data­base ever assem­bled. Professor Adam M. Gershowitz of William & Mary Law School stud­ied ​“acci­den­tal” Brady vio­la­tions and their systemic causes.

In a forth­com­ing Vanderbilt Law Review arti­cle, Professor McAward ana­lyzes 386 Brady vio­la­tions adju­di­cat­ed between 2004 and 2022, 49% of which occurred in homi­cide cas­es. The con­cen­tra­tion of Brady vio­la­tions in homi­cide cas­es under­scores the grav­i­ty and con­se­quences of these vio­la­tions and the stag­ger­ing human cost. Significantly, in more than one-third (34%) of all cas­es in the study, Professor McAward found that pros­e­cu­tors with­held evi­dence that sup­port­ed both the defen­dants’ inno­cence and under­mined the cred­i­bil­i­ty of the prosecution’s case the­o­ry or wit­ness­es. In 45% of the cas­es Professor McAward reviewed, the sup­pressed evi­dence could have impeached a crit­i­cal pros­e­cu­tion wit­ness. In 21% of the cas­es in the study, the author con­clud­ed that the sup­pressed evi­dence would have under­mined the cred­i­bil­i­ty of the prosecution’s case the­o­ry or sup­port­ed the defendant’s innocence.

Professor McAward found that a pros­e­cu­tor ​“act­ing alone, is the sup­pres­sor in almost half (49%) of cas­es.” She also found that a ​“pros­e­cu­tor who vio­lates Brady does so in bad faith in 2 of every 3 cas­es — 66% of the time.” In homi­cide cas­es, when pros­e­cu­tors are the sup­pres­sor (59% of all homi­cide cas­es), Professor McAward found they act in ​“bad faith 74% of the time.” Law enforce­ment plays a sig­nif­i­cant role, too: respon­si­ble for 31% of all Brady vio­la­tions in the study, of which 57% were in bad faith. In 43% of Brady cas­es where law enforce­ment act­ed in good faith, Professor McAward faults inad­e­quate train­ing and resources. In 51% of suc­cess­ful Brady claims in the study, either inad­ver­tent­ly or will­ful­ly, Brady mate­r­i­al ​“nev­er even made its way to the line pros­e­cu­tor.” Professor McAward calls this a ​“sys­tem fail­ure” where a lack of clear guid­ance regard­ing evi­dence dis­clo­sure expos­es the pros­e­cu­to­r­i­al team as ​“just a col­lec­tion of parts that do not work well togeth­er.”

In his Texas A&M Law Review arti­cle, which draws on near­ly two dozen recent cas­es, Professor Gershowitz attrib­ut­es the fre­quen­cy of Brady vio­la­tions large­ly to struc­tur­al issues, chief among these exces­sive pros­e­cu­tor case­loads, which he says means pros­e­cu­tors lack time to thor­ough­ly review evi­dence. He pro­vides strik­ing exam­ples: in Cook County, pros­e­cu­tors were han­dling ​“300 or more open cas­es at any one time” and in Fort Worth, ​“mis­de­meanor pros­e­cu­tors juggle[d] between 1200 and 1500 mat­ters apiece.” Inadequate train­ing com­pounds this prob­lem: Professor Gershowitz notes that ​“most pros­e­cu­tors receive min­i­mal train­ing about their Brady oblig­a­tions,” a defi­cien­cy that begins in law school and con­tin­ues into prac­tice where many offices take a ​“once and done” approach to train­ing. The issue is fur­ther exac­er­bat­ed by the ris­ing trend in turnover among senior pros­e­cu­tors, leav­ing many dis­trict attor­ney offices with­out insti­tu­tion­al knowl­edge or per­son­nel resources to train new pros­e­cu­tors, accord­ing to Professor Gershowitz.

Similarly, Professor McAward also found many Brady vio­la­tions result from sys­temic fail­ures, over­whelm­ing case­loads, inad­e­quate train­ing, and poor com­mu­ni­ca­tion. Responsibility for Brady vio­la­tions by any mem­ber of the pros­e­cu­tion team is the prosecutor’s bur­den to bear, and the loose­ly defined ​‘team’ often extends across mul­ti­ple actors out­side of the dis­trict attorney’s office, poten­tial­ly includ­ing fed­er­al agen­cies, fire mar­shals, crime lab­o­ra­to­ries, and law enforce­ment offi­cers. Without clear guid­ance, Professor McAward notes that exam­ples of miscommunication abound.

Also con­tribut­ing to sys­temic fail­ures, Professor Gershowitz notes, is a patch­work of pro­to­cols among state agen­cies leav­ing ambi­gu­i­ty as to who, what, and when mem­bers of the pros­e­cu­to­r­i­al team should be dis­clos­ing infor­ma­tion with one anoth­er — a find­ing sim­i­lar to that of Professor McAward. He blunt­ly describes the crim­i­nal jus­tice sys­tem as ​“no sys­tem at all … [but] a jig­saw puz­zle with a thou­sand tiny pieces … [in which n]o one is real­ly in charge.” Such coor­di­na­tion chal­lenges are only mag­ni­fied in large, urban juris­dic­tions: ​“In Los Angeles, the pros­e­cu­tor’s office works with near­ly one hun­dred law enforce­ment agen­cies,” Professor Gershowitz writes, mak­ing effi­cient evi­dence shar­ing extra­or­di­nar­i­ly dif­fi­cult. This frag­men­ta­tion cre­ates numer­ous oppor­tu­ni­ties for evi­dence to be lost. Though Brady is often dis­cussed in the con­text of bad-faith sup­pres­sion by pros­e­cu­tors, Professor Gershowitz notes that the doc­trine ​“was designed to pro­tect defen­dants from an unfair tri­al, not to pun­ish pros­e­cu­tors for intentional misconduct.”

Addressing these prob­lems requires mul­ti­fac­eted reforms. Both schol­ars strong­ly advo­cate for com­pre­hen­sive Brady check­lists, such as step-by-step guides with ​“active com­mands that tell pros­e­cu­tors to take spe­cif­ic affir­ma­tive actions.” These check­lists should remind pros­e­cu­tors ​“who is includ­ed in the pros­e­cu­tion team and which mem­ber to reach out to for each type of evi­dence.” Prosecutor offices should also main­tain an offi­cial Brady list ​“with the names of offi­cers who have engaged in dis­hon­esty,” Professor Gershowitz writes. This pro­posed reform can poten­tial­ly deter will­ful sup­pres­sion by hold­ing offi­cers pro­fes­sion­al­ly respon­si­ble, help­ing pros­e­cu­tors devel­op height­ened aware­ness in cas­es where they work with offi­cers on the Brady list, and pro­vid­ing a resource for pros­e­cu­tors to con­duct swift due dili­gence when col­lect­ing mate­r­i­al evi­dence for disclosure.

Personnel improve­ments also rep­re­sent a cru­cial start­ing point. Professor Gershowitz rec­om­mends enhanc­ing con­tin­ued edu­ca­tion train­ing meth­ods, includ­ing ​“fre­quent­ly repeat­ing Brady con­cepts” through ​“inter­ac­tive exer­cis­es about hypo­thet­i­cal sce­nar­ios” rather than dry lec­tures. He sug­gests break­ing train­ing into mul­ti­ple bite-sized quizzes or exer­cis­es that pros­e­cu­tors take peri­od­i­cal­ly through­out the year to rein­force learn­ing. He also high­lights the ​“pros­e­cu­tor vacan­cy cri­sis” with ​“15 – 33% of pros­e­cu­tor posi­tions vacant in large dis­trict attor­ney offices.” Filling these vacan­cies would help address exces­sive case­loads and pre­serve institutional knowledge.

The two authors also sug­gest judi­cial and tech­no­log­i­cal reforms. Professor McAward notes that ​“state court judges are the pri­ma­ry enforcers of Brady in this coun­try” and, there­fore the courts ​“need resources and sup­port to con­tin­ue doing this job well,” includ­ing con­tin­u­ing edu­ca­tion oppor­tu­ni­ties regard­ing Brady vio­la­tions. Technology invest­ments would also be used to improve com­mu­ni­ca­tion between the very diverse com­po­nents that all make up the pros­e­cu­tion team, allow­ing com­mu­ni­ca­tions between law enforce­ment and dis­trict attor­ney offices even as offi­cers walk their beat, con­duct patrol, or par­tic­i­pate in field inves­ti­ga­tions. Professor Gershowitz sug­gests hav­ing a plat­form that holis­ti­cal­ly address­es evi­dence dis­clo­sure among the pros­e­cu­tion team could ensure com­pli­ance with Brady.

The per­sis­tence of Brady vio­la­tions rep­re­sents a long­stand­ing fail­ure of our crim­i­nal jus­tice sys­tem. The com­ple­men­tary research by Professors McAward and Gershowitz illu­mi­nates both inten­tion­al mis­con­duct and the sys­temic fail­ures that lead to evi­dence sup­pres­sion. Their find­ings con­firm that address­ing Brady vio­la­tions requires a mul­ti-pronged approach, with sug­ges­tions to focus on inad­e­quate train­ing, exces­sive case­loads, poor com­mu­ni­ca­tion sys­tems, and inef­fec­tive pro­to­cols. Both pro­fes­sors pro­pose reforms that they rec­og­nize as improb­a­ble, rang­ing from increased fund­ing for more line pros­e­cu­tors and com­pen­sat­ing senior pros­e­cu­tors to encour­age reten­tion and improv­ing tech­nol­o­gy in the infor­ma­tion flow among mem­bers of the pros­e­cu­tion team. They also pro­pose more achiev­able reforms — enhanced train­ing, com­pre­hen­sive Brady check­lists, improved tech­nol­o­gy, and judi­cial edu­ca­tion — that offer an achiev­able roadmap for improve­ment. Ultimately, ensur­ing Brady com­pli­ance is not mere­ly a tech­ni­cal legal mat­ter but an imper­a­tive essen­tial to the fair­ness and legit­i­ma­cy of our crim­i­nal jus­tice sys­tem. By imple­ment­ing evi­dence-based reforms, juris­dic­tions may reduce both inten­tion­al mis­con­duct and systemic violations.

Source: Death Penalty Information Center, Tyler Yang, April 24, 2025

"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."

— Oscar Wilde