Get Rid Of The Brady Rule

Thomas Sullivan and Maurice Possley recommend replacing the Brady rule with “open-file” discovery in a recent article,  “The Chronic Failure to Discipline Prosecutors for Misconduct: Proposals for Reform,” 105 J. Crim. L. & Criminology (2015). The article describes the consistent failure to discipline prosecutors, even in cases where knowing misconduct has resulted in wrongful convictions, points to the responsibility of others in the system, especially defense attorneys and judges, to report ethical breaches by prosecutors, and proposes a number of specific reforms:

(1) substituting for the Brady rule a verifiable open-file pretrial discovery requirement on prosecutors;

(2) requiring reversal of convictions if serious prosecutorial misconduct is proven;

(3) identifying errant prosecutors by name in trial and appellate opinions;

(4) providing prosecutors with qualified instead of complete immunity from civil damages for misconduct;

(5) authorizing the Department of Justice’s Office of Inspector General to handle investigations of alleged misconduct by federal prosecutors, and encouraging attorney disciplinary bodies to more effectively discover and sanction misbehaving prosecutors.

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