Introduction

Ensuring that prosecutors comply with their ethical and due process disclosure requirements has been a distinctly vexing problem for the criminal justice system, particularly in light of the frequency of wrongful convictions caused by prosecutorial misconduct. The problem stems from the shortcomings of the Brady doctrine and institutional forces that make it difficult to hold prosecutors accountable when they commit misconduct. In response to these challenges, commentators have offered numerous reforms to increase compliance with prosecutors’ disclosure requirements; however, many of these proposals are complex, would impose considerable burdens on the system, and/or would require new legislation or regulations. Instead, this Essay calls for a short Brady colloquy during which a judge would question the prosecutor on the record about her disclosure obligations. Such a colloquy would provide judges an additional tool to enforce Brady, nudge prosecutors to comply with their disclosure obligations, and make it easier to punish prosecutors who commit misconduct. Most importantly, judges could implement a Brady colloquy today without the need for additional legislation or ethical rules.

This past March in the Bronx, an innocent man who had been jailed for over eight months awaiting trial for an alleged sexual assault was nearly convicted of a crime that he did not commit.[1]  He was spared when, at the culmination of the two-week trial and after the defense gave its closing argument to the jury, the prosecution conceded that it possessed exculpatory evidence supporting the defendant’s innocence.[2]  The alleged victim initially told the police that she was not assaulted but rather that the alleged sexual encounter was consensual.[3] The police collected this statement from the complainant at the time they arrested the defendant, and it had been in the prosecutor’s file throughout the investigation, pretrial proceedings, and trial. Following the disclosure, the prosecutor confessed error and dismissed the case. The defendant was immediately released, his liberty restored.[4]

In many respects, this case is atypical of the flaws that plague our criminal justice system, because the prosecutorial misconduct was revealed before the defendant was convicted and sent to serve a lengthy prison sentence. However, in other respects, the case is representative of Brady[5] violations that have plagued the criminal justice system.[6]

In Brady v. Maryland, the Supreme Court held that due process requires prosecutors to disclose favorable evidence to defendants.[7] In later cases, the Court clarified that favorable evidence includes exculpatory and impeachment evidence.[8] The Court also made clear that the failure to disclose Brady evidence violates due process “irrespective of the good faith or bad faith of the prosecution.”[9] Finally, the Court limited Brady’s reach by extending it only to material evidence, which it has defined as evidence that is so favorable to the defense that “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”[10]

While there is ample room to critique the substance of Brady, there is growing recognition that Brady violations are rampant. Indeed, Chief Judge Alex Kozinski of the Ninth Circuit succinctly summarized the problem in a recent opinion, explaining: “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.”[11] Scholars have also long identified prosecutorial misconduct, and particularly the failure to meet Brady obligations, as a systemic problem that has not been effectively addressed.[12]

The inability to curb the epidemic of Brady violations is not due to a lack of creative ideas to address the problem. On the contrary, reformers have offered numerous proposals to increase disclosures.[13] For the most part, these reform proposals can be separated into two categories. One category seeks to make it easier to identify past Brady violations and to hold prosecutors accountable for violating Brady. These include proposals to shame wrongdoers by including the names of offending prosecutors in judicial opinions.[14] The second category of proposals seeks to substantively change prosecutors’ disclosure obligations, for example by abandoning Brady’s materiality requirement or by circumventing Brady altogether with legislation requiring open-file discovery.[15] Despite these efforts, the problem continues unabated.[16]

In the face of this complex problem, this Essay offers a decidedly low-tech, simple, and, to some, perhaps naive suggestion to address the problem of undisclosed Brady evidence: During pretrial hearings, and before a defendant enters a guilty plea, the court should ask the prosecutor a handful of questions on the record to investigate whether the prosecutor possesses evidence favorable to the defendant that has not been disclosed. If the court refuses to propound the questions, the defense attorney should offer an affirmation on the record about what material she requested of the prosecutor and what, if anything, she received in response. The defense attorney should then invite the prosecutor to correct any misstatements about the prosecution’s response to the defendant’s Brady request. The goal of this procedure is obvious—to nudge prosecutors to fulfill their due process disclosure obligations.[17] For many prosecutors, the simple on-the-record colloquy with the court, or the anticipation of it, will cause them to be prepared to respond by having carefully reviewed the prosecution’s information.

The Brady colloquy proposed in this Essay is offered as an invitation to search for other easily implemented policies to address the criminal justice system’s epidemic of Brady violations.[18] In this sense, the proposal here is offered in the spirit of one solution hospitals settled on to curb the insidious spread of infections in hospitals. What turns out to be effective in that context is not necessarily complex; well-placed reminders, thoughtful placement of sinks, and the use of short checklists significantly reduce infection rates.[19]

The remainder of this Essay outlines the questions courts should ask during a Brady colloquy. This Essay then identifies several implications of implementing this procedure, including how the procedure allows for an increased judicial role in disclosure calculations, nudges prosecutors to comply with Brady, increases the possibility that wrongdoers will be held accountable, and incentivizes well-prepared defense counsel. This Essay concludes by noting the ease with which such a Brady colloquy could be implemented.

I.  A Model Brady Colloquy

There are many potential questions judges could pose to prosecutors to increase their compliance with their disclosure obligations. Local practice, state ethical rules, and existing pretrial procedures will influence which questions should be asked. However, here are five questions judges could use in most jurisdictions. The first four questions are designed to be asked during a pretrial hearing or before accepting a guilty plea. Judges should ask the fifth question after the prosecution’s case in chief or after the defense’s opening statement.

  1. Have you reviewed your file, and the notes and file of any prosecutors who handled this case before you, to determine if these materials include information that is favorable to the defense?
  2. Have you requested and reviewed the information law enforcement possesses, including information that may not have been reduced to a formal written report, to determine if it contains information that is favorable to the defense?
  3. Have you identified information that is favorable to the defense, but nonetheless elected not to disclose this information because you believe that the defense is already aware of the information or the information is not material?
  4. Are you aware that this state’s rules of professional conduct require you to disclose all information known to the prosecutor that tends to be favorable to the defense regardless of whether the material meets the Brady materiality standard?[20]
  5. Now that you have heard the lines of cross-examination used by the defense and have a more complete understanding of the theory of defense, have you reviewed your file to determine if any additional information must be disclosed?

Finally, in addition to these questions,[21] the judge should remind prosecutors throughout the proceedings that she is prepared to conduct an in camera review of any information that the prosecutor is on the fence about disclosing.

II.  Increasing Compliance with Due Process Disclosure Obligations

This proposal is not offered to address all of the problems of Brady violations. However, there are at least four reasons why those concerned with preventing miscarriages of justice and the resulting erosion of public trust in the legitimacy of the criminal justice system should consider this proposal.[22] In short, the regular use of a Brady colloquy promises to: (1) give judges a more active role in policing disclosures; (2) increase the incentives for prosecutors to live up to their due process obligations; (3) make it more likely that misconduct will be punished; and (4) help ensure defense counsel is adequately prepared to challenge the prosecution’s case.

A.  Judicial Intervention

Having recognized the epidemic of Brady violations, Chief Judge Kozinski concluded that the judiciary was the only body that could remedy the misconduct.[23] Yet, while he trumpeted an active judicial role as the solution, Chief Judge Kozinski also acknowledged the role the judiciary played in allowing misconduct to flourish, concluding that “[s]ome prosecutors don’t care about Brady because courts don’t make them care.”[24] In order to remedy the situation, Chief Judge Kozinski concluded that judges “must send prosecutors a clear message: Betray Brady, give short shrift to Giglio, and you will lose your ill-gotten conviction.”[25]

A Brady colloquy answers Chief Judge Kozinski’s challenge, giving judges a tool to more aggressively police the prosecution’s due process obligations. Such a tool addresses one of the fundamental flaws of Brady: it provides a constitutional right to criminal defendants, but it leaves prosecutors in charge of vindicating that right by vesting the disclosure power with them.[26] Some judges who are inclined to actively encourage prosecutors to meet their due process disclosure obligations will see this proposal as a comparatively unobtrusive way to do so.[27] Indeed, when I presented a similar recommendation to Texas judges as part of the Texas Center for the Judiciary’s annual judicial training conference in 2013, several judges immediately indicated a willingness to implement this procedure in their courtrooms to help ensure the fair administration of justice.

A Brady colloquy also enables judges to have a more active role in cases resolved through plea bargains. This is important in our current system because plea bargaining is “not some adjunct to the criminal justice system; it is the criminal justice system.”[28] Given its prevalence, plea bargaining is often cited as a procedure that marginalizes the role of the judiciary by replacing it with privately negotiated dispositions.[29] However, a pre-plea Brady dialogue is a valuable tool for judges who want to ensure that prosecutors meet their ethical and constitutional disclosure obligations. To be certain, in United States v. Ruiz, the Supreme Court limited Brady’s reach in the plea bargaining context.[30] However, ethical obligations still apply, and while the holding in Ruiz does not require it, the implication of the Court’s opinion is that prosecutors retain a due process obligation to disclose at least some exculpatory information before accepting a guilty plea.[31] Regardless, conducting a Brady colloquy before allowing guilty pleas would certainly help to ensure the disclosure of some evidence that is favorable to the accused.

B.  A Nudge for Brady Compliance

A Brady colloquy has the potential to increase disclosures by altering the incentives prosecutors currently face in calculating whether to disclose information to the defense. First, it would help to realign the trial prosecutor’s incentives to disclose Brady evidence by making the potential costs a prosecutor faces in the event of nondisclosure more tangible and immediate. As the system currently operates, if undisclosed Brady evidence comes to light, it is often years, and sometimes decades, after a conviction.[32] Furthermore, such revelations are often the result of detailed postconviction investigation and litigation, which occurs only in a small fraction of cases. As a result, the initial decisionmaker tasked with determining whether information should be disclosed is often unavailable at the time the nondisclosure comes to light. The trial prosecutor has often moved on, retired, died, or simply does not remember the details of the case needed to offer an explanation for the nondisclosure.

A brief Brady colloquy would address this by requiring the trial prosecutor to answer questions about her disclosure decisions at the time when the effects of these decisions are most poignant. A colloquy, at least in part, personalizes the decision about whether particular information should be disclosed. In this way, the proposal helps to ensure that the prosecutor recognizes the weight of her constitutional obligation at the front end of the process. It also serves as a reminder that, while there are many institutional forces that affect whether Brady evidence is disclosed,[33] the trial prosecutor ultimately is left to make the disclosure decision in the moment of litigation. Given the nature of the adversary system, anything that reminds the prosecution of its role to pursue justice, not just convictions, should be considered.[34]

Second, a Brady colloquy changes the stakes of the prosecutor’s initial calculation about whether a particular item of information needs to be disclosed. Currently, a prosecutor starts from the position that her decision about disclosure, often made in private without consulting the court, defense counsel, or even another prosecutor not directly involved in the case, will have the final say on whether the Due Process Clause requires disclosure. However, if judges conduct a Brady colloquy, prosecutors will know that their initial disclosure decision will be at least minimally reviewed and questioned on the record by the court. While such a contemporaneous review of the prosecutor’s disclosure calculation may not alter the practices of the intentional wrongdoer, it should lead to more disclosures in situations in which Brady evidence would have otherwise been withheld in the absence of bad faith.

Third, this proposal responds to the empirical work of Ronald F. Wright and Kay L. Levine documenting the existence of “young prosecutors’ syndrome.”[35] Wright and Levine explain that experienced prosecutors characterize their inexperienced selves as exceedingly adversarial, uncompromising, and overly focused on winning.[36] Such an attitude, which the prosecutors contrasted with the more balanced views they developed with experience, undoubtedly contributes to Brady violations. It was perhaps a factor in why the young prosecutor in the Bronx nearly failed to disclose the Brady material in the case discussed in this Essay’s Introduction. The use of a Brady colloquy may help to overcome the overly aggressive posture of some young prosecutors because, as Wright and Levine found, these same young prosecutors hold judges in high regard.[37] That is, the Brady colloquy itself will be an effective signal to young prosecutors of the importance the judge places on enforcing a prosecutor’s ethical and Brady obligations.

C.  Increasing Prosecutorial Accountability

While this Essay is primarily focused on increasing the rate of Brady compliance on the front end, one additional benefit of this proposal is that the answers prosecutors provide during a Brady colloquy will make it easier to punish them if undisclosed Brady evidence later comes to light. There has been significant attention given to the lack of punishment following Brady violations.[38] Even in cases in which the misconduct surfaces quickly, as it did in the case from the Bronx above, individual prosecutors responsible for the misdeeds are seldom punished. Indeed, the assistant district attorney in the Bronx continues to prosecute felonies there.[39]

Scholars and practitioners have offered many proposals to hold prosecutors accountable for misconduct. Some have suggested public shaming.[40] Others have called for criminal penalties, civil penalties, or professional discipline.[41] It is beyond the scope of this Essay to evaluate which, if any, of these proposals should be pursued. However, a prosecutor’s answers during a Brady colloquy could increase the chance of both detection and punishment. Depending on the nature of the prosecutor’s answers, such punishment could take the form of prosecution for perjury, judicial sanctions, or discipline from state bar associations. Admittedly, the institutions with the authority to pursue punishment must still have the institutional desire and means to pursue it. But a transcript with unequivocal assertions that no Brady material exists in response to precise questions from a judge would eliminate some hurdles to punishing prosecutors who fail to meet their due process obligations.

D.  Incentivizing Effective Defense Preparation

Finally, the use of a Brady colloquy may have positive effects on the practice of criminal defense. At a minimum, it should encourage defense counsel to think more strategically about what categories of favorable evidence may exist and how this information may become a part of the defense theory, lead to changes in the defense theory, or provide additional avenues of investigation.[42] Of course, the prosecution’s duty to disclose Brady evidence exists absent a request by the defendant.[43] However, a detailed request aided by a brief colloquy from the trial court should trigger more disclosures than a boilerplate Brady motion filed as a routine matter.

Conclusion

Chief Judge Kozinski’s dissenting opinion is just one recent example of many urgent calls to respond to a wave of Brady violations.[44] Regardless of whether one agrees with his characterization of the problem as one reaching epidemic proportions, it is difficult to deny that there is a problem worth addressing. In the face of this problem, a Brady colloquy merits consideration. It could be implemented today, without passing legislation, changing the ethical rules, or giving judges additional authority. In addition, the potential negative consequences of implementing a brief Brady colloquy are far from severe. Of course, some prosecutors might be insulted by having to answer these or similar questions from the court, believing that the questions themselves amount to an accusation.[45] Additionally, some defense attorneys may be reluctant to ask the court to perform a Brady colloquy, perhaps fearing that the request will be received poorly and might result in the prosecutor’s unwillingness to offer favorable plea bargains to the attorney’s future clients. And some judges may fear that asking such questions will be seen as too pro-defendant.[46] However, despite these and other potential objections, the proposal is a low-cost intervention[47] in the criminal adjudication process that can help address a vexing problem with far-reaching consequences. At a minimum, it represents an idea worth testing—a test that could be implemented today by any judge who wants to answer Chief Judge Kozinski’s call to the judiciary to actively protect the rule of law by ensuring that prosecutors meet their due process and ethical obligations.

Jason Kreag is a Visiting Assistant Professor at the University of Arizona James E. Rogers College of Law. He has refined the proposal offered in this Essay based on many conversations with defense attorneys, prosecutors, and judges.