Out-Of-Balance: Basic Flaws In The Brady System

January 15, 2014

In recent years, the repeated, notable failures of the Brady disclosure regime by which prosecutors are required to produce evidence favorable to the accused in criminal cases have led to a cascade of criticism and growing calls for change.  A recent opinion by Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals, dissenting from the denial of review by the entire court in United States v. Olsen, opens with the memorable words: “There is an epidemic of Brady violations abroad in the land.  Only judges can put a stop to it.”  The forceful opinion, which provoked a number of editorials in leading newspapers,  provides an illustration of some of the basic flaws of the Brady disclosure system. [...]

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