As a bit of background, in 1957, the Court decided Jencks v. United States, 353 U.S. 657 (1957) in which it afforded broad discovery opportunities in federal criminal cases. In Jencks, the Court essentially ordered that prosecutors open their files - defendants need not make a preliminary showing in order to see the evidence known to the government.
[T]he petitioner was entitled to an order directing the Government to produce for inspection all reports...in its possession, written and, when orally made, as recorded..., touching the events and activities as to which they testified at the trial. We hold, further, that the petitioner is entitled to inspect the reports to decide whether to use them in his defense. Because only the defense is adequately equipped to determine the effective use for purpose of discrediting the Government's witness and thereby furthering the accused's defense, the defense must initially be entitled to see them to determine what use may be made of them. Justice requires no less.Jencks v. United States, 353 U.S. at 668-669.
The Court so determined under its powers to establish procedural rules in federal court, not under any specific article of the Constitution. That opened the door for Congress to pass the Jencks Act, 18 U.S.C. sec. 3500 which is an odious and regressive, secretive rule placing incredible and unwieldy power into the hands of unelected federal prosecutors. This, despite language in Jencks - harkening back to the earliest days of Supreme Court opinions - that the government has a choice: it can provide the evidence it has or it can let the defendant go free. It cannot hold the defendant and deprive him of relevant evidence material to his trial. In Jencks, the Court ordered dismissal of any criminal charge if the government, "on the ground of privilege, elects not to comply with an order to produce, for the accused's inspection and for admission in evidence, relevant statements or reports in its possession of government witnesses touching the subject matter of their testimony at the trial." Id. at 672. In response, the federal government created legislation protecting secrecy. Because Jencks was not grounded in Constitutional law, but rather in the powers of the Court which - apparently can be trumped by the powers of the legislature - the Court felt bound in subsequent cases to uphold the Jencks Act for federal cases.
The Court got its chance to take back control of trials - and the fairness of trials -when Brady came down the pike. Brady was a fairly pathetic case on the facts; but the Court used it to reclaim part of the reach of Jencks that Congress took away. While Jencks was meaty and profound demonstrating the infiltration of Hoover's FBI into unions and the Communist Party and the convergence of the two in order to prosecute people for their political beliefs, Brady was a ridiculous street crime case. Criminal defendants routinely cite Brady to suggest that the Due Process Clause of the 14th Amendment requires all kinds of disclosures in discovery by the government (which Brady does not say).
The better argument is that the government does have those obligations for all kinds of reasons, but not because of anything stated in Brady. First, and most significantly, Mr. Brady lost in the Supreme Court and his state court case did not declare any kind of new rule. Second, at its base, Brady is an anti-death penalty case, not a case about discovery or obligations by the state to criminal defendants. Third, if there is a due process right, why does it place a burden on the defendant to request evidence and require evidence that is exculpatory only? And, fourth, the aspect of Brady touted as decisional law is nothing more than dicta. In its semicentennial anniversary year, it warrants a very good read...as does the state case it upholds. But more importantly, the language of the Jencks case should be revisited with the gloss of constitutional principles because that is the case that talks about broad, unfettered discovery.
Mr. Brady and his co-defendant, Boblit, were charged with felony murder and tried separately:
It is conceded that Brady and Boblit lay in wait for the victim, William Brooks, placing a log across his private driveway, in order to obtain possession of his car and money. Boblit was armed with a shotgun and Brady with a pistol. When Brooks got out of his car, Boblit struck him in the head with the barrel of the shotgun. They placed Brooks in the car, and after driving a certain distance, they carried Brooks into the woods, where one of them throttled him with Boblit's shirt. Each claimed that the other had actually strangled Mr. Brooks. They concealed the body, and divided the contents of Brooks' pocketbook containing some $250. They abandoned the car near Lynchburg, Virginia. Boblit went home, Brady fled to Florida.Brady v. State, 220 Md. 454, 456 (1959).
Brady was tried before Boblit. Prior to trial, Brady's attorney moved for discovery including prior statements of Boblit. He was given all but one: the one in which Boblit mentioned the actual homicide. Brady's defense at trial was not that he was innocent; he confessed the murder...indeed he testified at his trial to the full contents of his confession. The defense was solely that he should be spared capital punishment. He was not. After trial, conviction and sentence, he discovered (through means that are never discussed in either case) that Boblit had made a statement in which he admitted committing the murder. In the meantime, Boblit had elected for a bench trial where he denied the actual killing. He was convicted and sentenced to life in prison.
Post-conviction, Brady argued that the failure to provide him with the unsigned statement by Boblit violated his right to a fair trial. The Maryland court agreed, kind of:
There is considerable doubt as to how much good Boblit's undisclosed confession would have done Brady if it had been before the jury. It clearly implicated Brady as being the one who wanted to strangle the victim, Brooks. Boblit, according to this statement, also favored killing him, but he wanted to do it by shooting. We cannot put ourselves in the place of the jury and assume what their views would have been as to whether it did or did not matter whether it was Brady's hands or Boblit's hands that twisted the shirt about the victim's neck. ... it seems to us...that it would be ‘too dogmatic’ for us to say that the jury would not have attached any significance to this evidence in considering the punishment of the defendant Brady.Brady v. State, 226 Md. 422, 429-430 (1961).
So, what the court actually said was had Brady known that Boblit confessed to strangling Brooks, he might have called Boblit to the stand. Had Boblit invoked his privilege against self-incrimination, he could have called the officer who took the unsigned statement to the stand. This information might have spared Brady's life, or it might not have. Maryland decided the case on general due process principles - it never mentioned the 14th Amendment but it did cite to some Supreme Court precedent; it may have been ruling under its own constitution - it is really unclear. The gist of the case was twofold: (1) there was a potential that Brady took the fall for Boblit in such a way that that must have been known to the government. Thus, failing to correct, clarify or notice a potential error before the court violated due process and (2) that Boblit seemed just as guilty as Brady so having one die and the other live seemed wrong. This was especially true because the statement was presented (although not accepted) in Boblit's trial and was utterly ignored in Brady's. But, really the decision reads as: the government should have given the information to the defense because in the end it would not hurt the government's case; this guy was guilty and would be convicted; failing to provide it looks like bloodlust for capital punishment.
Therefore, Brady's death sentence was overturned in the state court but he took the case up to the Supreme Court to argue that the government violated his right to due process in failing to provide the evidence and therefore he was entitled to a new trial on guilt, not just a new sentencing. He lost that argument. Even if the Supreme Court ruling is as broad as people think (it's not), a thorough read of the case clarifies that the "holding" in Brady is nothing more than dicta, and, it is dicta seeking to regain the breadth of Jencks through a 14th Amendment portal after so much damage from years of bad federal cases under the Jencks Act.
In Brady, Justice White thought the correct federal question was whether denying Brady a new trial on guilt as well as punishment deprived him of equal protection. Brady v. Maryland, 373 U.S. at 91 (White, J. concurring). The dissenting Justices Harlan and Black also stated that the equal protection argument was the sole issue before the Court - and that it should have been decided in the affirmative if the evidence were admissible at trial. Their interpretation of the Brady decision fascinates, averring that (1) by state constitutional provision, trials in the state of Maryland allow for juries to be the judges of both the facts and the law (jury nullification), (2) that judges alone may rule upon admissible evidence, and (3) the state admitted at oral argument that the Boblit statement would have been admissible in court (which is different from what the state court actually ruled). Had the Court addressed the equal protection argument, the course of history really would have changed. There was a potential to correct the wrongs of equal protection jurisprudence from the turn of the 20th Century and to bring the equal protection argument into the criminal realm - an issue discussed at length here.
This interpretation provokes great thought not only on the equal protection argument but also on the due process of law announcement in Brady which is this:
We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.Brady v. Maryland, 373 U.S. at 87.
This is a head-scratcher because there was little favorable to the accused in the Boblit statement. The statement itself was highly questionable, it being unsigned; it really was not "material" to guilt or innocence (and indeed, the Court rejected the guilt or innocence argument outright). It does not say that the government was obliged to provide the statement if no one asked for it, it said it was error to "suppress" it from the requested discovery. It's really a stretch to say that the failure to give the unsigned accusatory statement was a due process violation. That "holding" has nothing to do with the actual case. Justice White was right; the claim on federal due process was advisory, not declaratory.
But history makes mythology. Lawyers everywhere completely and totally misunderstand the Brady decision (and the fundamental divergence of due process and equal protection clauses of the 14th Amendment.) For 50 years, disappointed practitioners have hung their hats on a holding that was not a holding in a landmark case that was not a landmark case. In that time, the equal protection clause has faded from criminal jurisprudence. But (in a strange twist) assuming due process and assuming a defense request and assuming materiality, because it was decided under the 14th Amendment, the case does not affect federal litigants even though it sought to reinstate Jencks which arguably would only have affected federal litigants. The Jencks Act is still good law.
Perhaps rather than due process or equal protection, defense attorneys should forge new paths. The 9th Amendment talks about the rights of the people not being denied just because they are not enumerated in the Constitution. Broad legal process and equal protection under the law was well known at the time of ratification - indeed the 1641 Massachusetts Body of Liberties required jury trial by clear and sufficient evidence of guilt and prohibited coerced confessions for all...and even prohibited animal cruelty. The Massachusetts Constitution, Pt. 1 Articles 11 and 12 (ratified in 1780) discuss the broad rights of the accused to obtain fairness and justice with any crime or offense fully, plainly and substantially described to him which certainly suggests a broad right of discovery. The language of the 6th Amendment seems to urge an open prosecutorial file as well by requiring that the accused be informed of the nature and cause of the accusation. Limitations on state or federal power - and limitations on state powers by federal power - has its root in the celebration and protection of individual rights. The Framers did not favor prosecutors any more than they favored those accused of crimes; what they sought was fairness.
It is terribly important to remember that John L. Brady lost his case before the United States Supreme Court when it upheld the Maryland court ruling - he wanted a whole new trial and the Court merely upheld the reversal of his death penalty nodding approval to the Maryland court's decision. Brady was not a case of innocence bastardized by an over-eager system. Withholding the evidence in his case may - or may not have - affected his death sentence, but all of the judges felt comfortable with him spending his life in prison.
Because Brady was not a particularly substantive case, because it may or may not have asked a federal question, because it is so amorphous and unsatisfying, because it really does not say much, because it puts a burden on defendants that does not belong there by requiring them to ask for evidence that may or may not exist and for the government to determine what is or what is not exculpatory, practitioners would do their clients - and justice - a favor by going back to Jencks for advice; in Brady, the Court seemed to do the best it could to get back there, but fell far short.
Questions about discovery in criminal cases have centered around due process, the weakest and least defined of all of the possible arguments available. Without abandoning it it, rather than worry about the due process dicta/holding of Brady, practitioners should explore the equal protection guarantee of the 14th Amendment, the history of the rights known to the people prior to the ratification of the Constitution under the 9th Amendment, the meaning of the term "the nature and cause of the accusation" in the 6th Amendment as well as those rights enumerated and explained in state constitutions in seeking guidance for discovery arguments.Because, after half a century, it's clear that Brady has failed to safeguard criminal trials.
The goal when individual liberties clash against government power is to institute rules seeking an even playing field. Where government has the power to curtail freedom, Americans want as fair a fight as possible. The reason the Constitution requires full and open discovery in criminal cases is that each defendant must understand, in as complete a way as possible, the charges against him in order to present his defense. Broad discovery is not a burden on government. In the sense that it averts trial by subterfuge, it embodies due process of law; but the concept of due process of law is too vague. It lets the government bring guns to a knife fight.
Postscript: after his case was dismissed, Mr. Jencks continued as a union organizer and sometimes actor; he died in 2005. Boblit is still serving his life term. And Brady - the man who wanted to strangle Brooks - he was never resentenced. Why would he want to be when another jury could have sentenced him to death. He was ultimately paroled; his whereabouts are unknown.
After 50 years of trying to get this square peg of due process into the round hole of justice, it is time to start working with different pieces in order to obtain the promise of jury trials where the defendant is not hamstrung in his defense and the jury has the opportunity to understand the evidence in an unbiased way.