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Criminal Law

Crim. Law Journal Summer 2018, Vol. 18, Issue 3

GOING BEYOND THE "BIASED PROSECUTOR" ACCOUNT: EXPLORING COGNITIVE BIASES THAT CAN AFFECT JUDGES’ AND DEFENSE ATTORNEYS’ BRADY—RELATED DECISIONS

By Ryan Hartzell C. Balisacan*

In Brady v. Maryland, the Supreme Court held that "suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment."1 As a "rule of fairness,"2 the Brady doctrine3 counterbalances prosecutors’ access to potentially exculpatory evidence unknown to the defense. It obligates them—despite their natural instincts—to perform acts that may end up exonerating a defendant.

Today, critics suggest that Brady is being honored more in the breach than in compliance. As Judge Alex Kozinski of the Court of Appeals for the Ninth Circuit lamented in a 2013 dissenting opinion, "there is an epidemic of Brady violations abroad in the land."4 His grim diagnosis resonated strongly across the country, especially in California, where incidents of alleged prosecutorial misconduct frequently land on newspapers’ front pages.

For instance, in 2012, the American Civil Liberties Union of Southern California challenged5 evidence-disclosure policies of the District Attorney’s Office and the Sheriff’s Department of Los Angeles for being, among others, inconsistent with Brady.6 In 2016, the Orange County District Attorney’s Office—which ranked 2nd (out of 58 counties in California) in terms of the prevalence of prosecutorial misconduct,7 was investigated by the Department of Justice for allegedly committing "systematic [Brady] violations."8

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