Defending the Brady rule


The Supreme Court recently heard a case in which prosecutors withheld from the defense information that might have acquitted a murder defendant. The court can rectify this one injustice by ruling for the defendant, but broader reforms are necessary to prevent prosecutors nationwide from concealing evidence.

The case before the court arose from gruesome circumstances. In 1995 in New Orleans, a birthday party was interrupted by armed men looking for money and marijuana. The men opened fire, killing four occupants of the house; a fifth occupant died of her injuries within a week. Juan Smith was charged with and convicted of five counts of murder, largely on the eyewitness testimony of a survivor, Larry Boatner, who said, “I’ll never forget him.”

After Smith’s conviction, his lawyers learned about evidence in the prosecution’s possession helpful to him. Among other things, it indicated that Boatner repeatedly told authorities that he couldn’t describe the figure who first entered the house (although he did eventually identify Smith in a photo lineup). Under a landmark 1963 Supreme Court decision known as Brady vs. Maryland, prosecutors have a duty to disclose information potentially helpful to the defendant. The court in that case could hardly have been clearer: “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.”


The New Orleans district attorney’s office argued that there was no Brady violation because the evidence denied to the defense was not admissible. Given the importance of the evidence, that assertion is implausible. The Supreme Court should grant Smith a new trial

A victory for Smith would remedy this particular injustice, but violation of the Brady rule is widespread in the criminal justice system. The National Assn. of Criminal Defense Lawyers has proposed model legislation that would ensure that the Brady rule would be faithfully followed. For example, it would require prosecutors to disclose information that is “favorable” to the defendant even if it’s not considered admissible. Prosecutors also would have to disclose material sought by the defense “without delay.”

The proposed legislation would apply to federal prosecutions, but it could serve as a model for the states as well. Both state and federal prosecutors are bound by Brady, and both have been guilty of undermining it. Congress must act because the Supreme Court alone can’t deal with all the abuses.