*Jordan Esteban
In Brady v. Maryland and its progeny, the Supreme Court imposed duties of the utmost importance on prosecutors. To comport with the fundamental fairness embodied in the Fifth and Fourteenth Amendments, prosecutors must disclose material exculpatory and impeachment evidence to criminal defendants before trial.[1] The Brady rule has historically sought to ensure a criminal defendant’s right to a fair trial,[2] but well-reasoned, common sense arguments to apply the rule at the plea bargaining stage have fallen short of arming defendants with the evidence necessary to enter knowing and voluntary plea agreements.[3] One of the biggest hurdles in applying Brady during plea negotiations is the practical implications the rule imposes on prosecutors and the criminal justice system as a whole.
First, Brady’s materiality standard is unworkable at the plea stage. Under Brady, prosecutors must disclose only material exculpatory or impeachment evidence.[4] The question courts ask when determining materiality is whether the evidence would have changed the outcome of the proceeding.[5] In other words, the inquiry turns on whether the evidence undermined confidence in the verdict because its disclosure would have resulted in an acquittal.[6] To satisfy their duties under Brady, prosecutors must ask themselves this same question during trial preparation and err on the side of disclosure in equivocal situations.[7]
In a criminal justice system where 97% of criminal cases are resolved through pleas,[8] Brady’s materiality standard would require prosecutors to engage in full-blown trial preparation to enter into a valid plea agreement with a defendant. Under the materiality standard, the exculpatory evidence at issue is not analyzed in a vacuum, but in light of the entire body of evidence likely to be introduced at trial.[9] Thus, instead of engaging in this rigorous analysis in only their trial-ready caseloads, prosecutors must analyze every piece of evidence in their file to expedite the administration of justice through a guilty plea. Additionally, because Brady requires prosecutors to disclose material exculpatory evidence that is in the possession of any investigatory body working on the government’s behalf,[10] prosecutors would need to ensure no piece of material exculpatory evidence falls through the cracks to protect the plea from a subsequent Brady challenge.
Brady’s materiality is also unworkable at the plea stage due to a vastly insufficient record for judicial review. As previously discussed, the materiality standard requires courts to assess whether disclosure of the exculpatory evidence would have changed the result of the proceeding.[11] In the context of a plea agreement, the inquiry focuses on whether the defendant would have pled guilty if the government disclosed the evidence during plea negotiations. The practical issue with this standard is that it does not provide a court with anything more than a defendant’s hindsight opinion as to why she entered the plea agreement. In reality, defendants enter plea agreements for multiple reasons inherent in the American criminal justice system: to avoid a more severe possible punishment at trial, the financial burdens imposed by a longer disposition process, and the emotional stresses of standing trial. Accordingly, to satisfy the materiality requirement, a defendant would essentially only need to affirm that the sole reason she pled guilty was because she did not know of the undisclosed exculpatory evidence.
Although courts apply this same standard when assessing ineffective assistance of counsel claims—whether the defendant would have entered the plea agreement if her attorney was effective—the court is provided with, at the very least, a more adversarial proceeding.[12] When a defendant challenges the validity of her plea agreement based on her counsel’s alleged ineffectiveness during plea negotiations, both parties are able to defend their interests vigorously as they were each equally involved in the plea bargaining process. On the other hand, there is no possible way for a prosecutor to truly know why a defendant entered a plea agreement. This fact turns an adversarial proceeding into a unilateral proceeding where the government can do nothing more than speculate as to the factors a defendant considered in deciding to enter a guilty plea.
Applying Brady during plea bargaining would undoubtedly protect many defendants from entering fear-induced plea agreements. However, it is not as simple as directing prosecutors to simply turn over any exculpatory information they possess. The United States criminal justice system is an adversarial one demanding that the government determine whether evidence is exculpatory and material before imposing Brady’s duty to disclose. Our criminal justice system is also one that relies heavily on the expeditious administration of justice achieved through the plea system. Thus, a full-sweeping application of Brady to plea bargaining, while admirable and logical, is likely unworkable in the grand scheme of our state and federal criminal justice systems.
*J.D. Candidate, May 2020, Florida International University College of Law
[1] See Brady v. Maryland, 373 U.S. 83, 86 (1963); see, e.g., Kyles v. Whitley, 514 U.S. 419, 439 (1995); United States v. Bagley, 473 U.S. 667, 675 n.6 (1985); United States v. Agurs, 427 U.S. 97, 107 (1976).
[2] See Brady, 373 U.S. at 86.
[3] See United States v. Ruiz, 536 U.S. 622 (2002) (holding that the government is under no duty to disclose material impeachment evidence to criminal defendants before entering into a plea agreement).
[4] Brady, 373 U.S. at 86.
[5] Bagley, 473 U.S. at 667.
[6] Id.
[7] Id.
[8] Report: Guilty Pleas on the Rise, Criminal Trials on the Decline, Innocence Project (Aug. 7, 2018), https://www.innocenceproject.org/guilty-pleas-on-the-rise-criminal-trials-on-the-decline/.
[9] See Bagley, 473 U.S. at 667.
[10] Kyles v. Whitley, 514 U.S. 419 (1995).
[11] Bagley, 473 U.S. at 667.
[12] Missouri v. Frye, 566 U.S. 134 (2012); Lafler v. Cooper, 566 U.S. 156 (2012).