Every law student reads Brady v. Maryland, 373 U.S. 83 (1963), in a first year criminal procedure class. Brady holds that a prosecutor violates due process when he (1) suppresses evidence (2) that is favorable to the defendant, when that evidence (3) is material to guilt or innocence. This extends to evidence that bears upon the credibility of a government witness. Giglio v. United States, 405 U.S. 150, 153–54 (1972). Brady violations by prosecutors, when it can be established to have occurred, by the revelation of exculpatory evidence that was within the prosecutor’s control but not disclosed to defense counsel, usually result in a new trial for a criminal defendant. This should be a deterrent to prosecutors since not only is the conviction overturned but the offending prosecutor usually faces attorney disciplinary charges with the State Bar as well.
Nevertheless, Brady violations seemed to be occurring frequently. Hiding the ball from the defense is apparently running rampant, at least according Chief Judge Alex Kozinsky of the 9th circuit Federal Court of Appeals. Judge Kozinsky’s dissent in United States v. Olsen begins with this sentence:
There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.
Judge Kozinsky is exactly right. Throughout my career I have heard countless judges complain about the conduct in their courtroom of both defense and prosecuting attorneys. My first thought was always, “Judge, you’re the only one who can put a stop to it!” A judge has complete authority over his or her courtroom. If attorney misconduct is occurring there, it’s because the judge is allowing it by not stopping it. Just as power corrupts, unchecked license also corrupts.