Justin Murray (New York Law School) has posted Brady's Shadow on SSRN. Here is the abstract:
Scholars have spent sixty years documenting Brady v. Maryland’s failures—its materiality standard that licenses suppression of exculpatory evidence, its abandonment of defendants who plead guilty, its toothless enforcement. Yet these same critics celebrate Brady’s supposed grand promise, treating the decision’s incarnate presence as the betrayal of an ideal rather than recognizing the promise itself as a mirage. This Article contends that our profession’s faith in Brady—even faith expressed through demands for reform—perpetuates the very dysfunction it critiques. Brady operates not merely as failed doctrine but as a trap and shadow: the trap springs when its mythology seduces reformers into endless doctrinal tinkering; the shadow falls when this failed doctrine systematically darkens alternative paths toward meaningful discovery.
Through a wide-ranging investigation spanning statutory law, constitutional doctrine, and multiple sites of professional formation, this Article maps Brady’s shadow for the first time. Nationwide surveys of both statutory and ethical disclosure rules reveal how readily courts grind down facially broad mandates into Brady facsimiles. Original doctrinal analysis traces Brady’s contamination of Sixth Amendment ineffective assistance law and the ways it has stifled jurisprudential development for multiple enumerated constitutional rights and for state constitutional provisions that might otherwise have flourished as independent sources of disclosure obligations. Examination of leading casebooks and bar preparation resources indicates that Brady dominates professional consciousness and relegates alternatives to obscurity. And, drawing on existing scholarship while recasting its implications, the Article demonstrates how in-vogue administrative reforms aiming to improve disclosure practices—Brady trainings, discovery policies, disclosure checklists, and so forth—often serve to further tighten Brady’s stranglehold on prosecutors’ sense of their professional role. Synthesizing these diverse threads points to a larger pattern: Brady’s shadow systematically warps statutory interpretation, stunts constitutional development, misdirects professional formation, and legitimates the very information asymmetries it purported to rectify.
Shadows recede when light finds new angles; the Article thus concludes on a sunnier note. Precise drafting can inoculate disclosure rules against constitutional contagion. Disciplined interpretation can honor each legal source’s distinctive text, purpose, and interpretive conventions rather than defaulting to Brady’s cramped framework. The paths forward—sketched here only in broad strokes, with an invitation to further research—lead toward discovery systems where generous disclosure, not Brady’s low bar, becomes the norm. Whether through reimagined legal education, prosecutorial cultures that prize transparency over bare constitutional compliance, legislation embracing open-file discovery or incorporating discovery devices from civil procedure, or scholarship that illuminates new domains previously left unexplored due to Brady’s magnetic attraction, escape routes multiply once we learn to see them. For six decades reformers have labored to perfect a doctrine designed to entrench, not dismantle, prosecutorial information control. Only when we stop mistaking a trap for a promise can we liberate American criminal discovery from Brady’s shadow and advance toward the transparent, equitable system that Brady tantalizingly dangled yet systematically suppressed.
Highly recommended.