'Brady' and the Unfulfilled Promise of an Even Playing Field
For some time, as long as a half century ago in May 1963, courts promised that the prosecution and defense would, as far as possible, engage on a level playing field. It was a "battle," a controversy between two fully armed gladiators that would best serve the ends of justice by enabling the jury to make an informed judgment, with both sides in a position to present material information going to the question of guilt or innocence. To be sure, the opinion in Brady v. Maryland1 was, oddly enough, criticized by Justice Byron White who opined that the court was creating "in constitutional form a broad rule of criminal discovery." A reading of the majority opinion made clear that the court did not shy away from being so criticized, for one cannot read the language of the opinion without having had a high hope that the rule will do just what disturbed White.
Nine years before Brady, in an opinion of later Justice Charles Evans Whittaker, written when he was then a district judge in United States v. Smith,2 it was opined that the legislative history justified a more liberal attitude by the courts in requiring the government to furnish bill of particulars (FRCP 7(f)).
It was hoped that exculpatory evidence that might never have been revealed would now be given to the defense, and that a full and fair adversarial testing would promote a fair and just verdict.3 Criminal defense practitioners lack access to haul a witness before the grand jury or to their office, to seek immunity for recalcitrant witnesses, to have their investigators designated as "special agents" (e.g., FBI, IRS-Criminal Division) with the resultant force and prowess of the government to "convince" witnesses to answer questions or give testimony prior to the bringing of a charge or the commencement of a trial.
With it all, on no lesser authority than our scholarly U.S. Court of Appeals for the Second Circuit, there is an informational gap that exists between the defense and the prosecution.4 These observations made by the learned court are close to a decade old, but what has been done about closing the gap? Is there a way to assure that we will not be informed one night on the news that some innocence project has found that a man was wrongly convicted? Can we safely rely on the benevolence of all prosecutors to see that the guilty are prosecuted and the innocent are exonerated? Do we have to forget what we know as human beings, namely that, and this is sadly so, in many prosecutorial offices some prosecutors count convictions much as a pitcher records his win and loss record. There are even offices in some parts of the country where the word "justice" is not as often used as the words "I won…"
We are fortunate to have at this time extraordinarily able members of the Second Circuit and the district court benches. Action can be taken, and must be taken, lest our criminal justice system be thought by the public to be fraught with miscarriages of justice.
Hopes and Intentions
It was hoped by the Framers that grand juries would provide a degree of independence and afford protection to one accused of crime. The Framers expected grand juries to sift through evidence in order to determine whether there was probable cause to bring a charge against a citizen. The history of the grand jury is glowingly described as "rooted in the common and civil law, extending back to Athens, pre-Norman England and the Assize of Clarendon, promulgated by Henry II."5 To be sure, a mouthful. The Supreme Court has stated: "[t]he grand jury is an integral part of our constitutional heritage, which was brought to this country with the common law—it is a basic guarantee of individual liberty."6 I am sure it will come as a surprise to my fellow members of the bar, but the English had the good sense to abolish the grand jury in 1933.7 It was then viewed as an unjustifiable "tool" of the prosecution, not as a true impartial sifter and evaluator of credible evidence. The famous allusion to a grand jury prepared to indict a ham sandwich if the prosecutor so desires is a well-known proposition.
Any hope that the grand jury could fulfill the Framers' intentions that it be a bulwark of liberty was dashed in Costello v. United States.8 The court is without power to review the sufficiency of evidence before the grand jury. The exclusionary rule is inapplicable in grand jury proceedings, with the result that a witness called before a grand jury may be questioned on knowledge obtained through the use of illegally seized evidence.9 The handwriting was on the wall when the court as far back as 1884, held that with respect to the role of the grand jury, the Fifth Amendment was not applicable to the states either through Due Process or through the Fourteenth Amendment.10
With the grand jury affording no real protection to a citizen/accused, the criminal defense bar must present for payment the pledge that criminal proceedings will be conducted on an equal footing.
Certainly the criminal defense bar, with the passage of time since the holding in Brady, can look back on what has occurred and conclude that the promises made as to equality between counsel in terms of information provided both to wage a prosecution and to conduct a defense as unsatisfactory. Exceptions and modifications have been made to the Brady rule, which in the end have led to repeated excusals of violations of the rule.
While the Brady decision gave criminal defendants the right to the disclosure of material information, the decision failed to define a standard of "materiality," which led to uncertainty and to an evolution of the prosecutor's subjective discretion to determine what is in fact material, as well as a narrowing over time of what was considered Brady material. In United States v. Agurs,11 materiality as it relates to disclosure of evidence was defined as when "the omitted evidence creates a reasonable doubt that did not otherwise exist." Then, in United States v. Bagley,12 materiality was: "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Ten years later the standard was changed again by the decision of Kyles v. Whitley:13 "whether in [the undisclosed evidence's] absence [the defendant] received a fair trial, understood as a trial resulting in a verdict worthy of confidence."
Finally, following the Supreme Court's 1999 ruling in Strickler v. Greene,14 which went back to the reasonable probability of a different result test, a distinguished panel of the Second Circuit, in the case of United States v. Coppa,15 left solely to the discretion of the prosecutor whether material should be turned over under the Brady obligation in the following language: "the nature of the prosecutor's constitutional duty to disclose has shifted from (a) an evidentiary test of materiality that can be applied rather easily to any item of evidence (would this evidence have some tendency to undermine proof of guilt?) to (b) a result-affecting test that obliges a prosecutor to make a prediction as to whether a reasonable probability will exist that the outcome would have been different if disclosure had been made" (emphasis added).
A prosecutor who is convinced that her assessment of the facts and theory of guilt is the correct one finds it difficult to perceive a defense theory of how the information would be able to be used. Further, a court, though composed of erudite members, may not be in the best position to judge how a particular criminal defense lawyer may be able to use to her client's advantage a piece of evidence that was withheld. The Coppa theory, founded on Supreme Court precedent, leads to assumptions, uncertainty and a lack, perhaps, of a court's inclination to disturb a verdict once rendered. With respect to a post-conviction analysis by a court it is well to keep in mind the sage words of Second Circuit Judge Jerome Frank, dissenting in United States v. Farina:16 "[w]hat influences juries, courts seldom know." We successfully argued as far back as 1969 in United States v. Agone17 that Brady turnover should not be left to the judgment of a prosecutor who may, just may, be interested in "winning the case," to make a judgment as to what and when a piece of evidence, developed by the prosecution, should be turned over to the defense. We warned in 1998, in a column published by the New York Law Journal, titled "Awaken Defense Bar, Your Client's 'Brady' Rights Are Not Protected."18 The same warning was repeated in "The Need for Enforcement of 'Brady' Rights"19 and "'Brady' and the Defendant's Right to Such Material."20 It can be said without an extended citation of cases that Brady compliance should not depend on the particular proclivities of a judge to whom the defendant's case is assigned.