Originalism and Formalism in Criminal Procedure: The Triumph of Justice Scalia, the Unlikely Friend of Criminal Defendants?
Georgetown Law Journal, Vol. 94 November 2005
This book chapter, forthcoming in Criminal Procedure Stories (Carol Steiker ed. forthcoming 2005), explains the story behind Brady v. Maryland and its broader significance in the field of criminal procedure. Brady is unusual among the great landmark criminal procedure decisions of the Warren Court. Brady requires prosecutors to give criminal defendants evidence that tends to negate their guilt or reduce their punishment. In other words, Brady mandates limited discovery instead of trial by ambush. Brady's test turns not on whether the prosecutor misled a jury or acted in good faith, but on whether the evidence is favorable and material to guilt or punishment. Thus, Brady marked a potentially revolutionary shift from traditionally unfettered adversarial combat toward a more inquisitorial, innocence-focused system. Yet, unlike Mapp v. Ohio and Miranda v. Arizona, Brady has sparked little public controversy or commentary. This may be because innocence is an appealing touchstone for criminal procedure, one with enormous potential to transform the adversarial criminal trial into a collaborative search for the truth.
Brady, however, has meant much less in practice than it could have. Few potential Brady claims come to light, and fewer defendants walk free, because our system remains an adversarial contest rather than a neutral inquiry into innocence. First, Brady requires prosecutors to look out for defendants' interests, and adversarial-minded prosecutors are poorly suited to do that job. Second, Brady is hard to implement and enforce. Favorable evidence is often spread across many agencies' files; defendants cannot learn of evidence hidden in these files; and judges are loath to reverse convictions long after trial. Empirical evidence shows that few Brady claims succeed and that most Brady material is ambiguous enough that prosecutors can easily overlook it. Third, Brady requires relatively little discovery, though statutes and rules have broadened discovery beyond the constitutional minimum. Much broader discovery would alleviate many of the adversary system's problems, at the cost of more witness intimidation, fabricated alibis, and revelation of undercover and confidential informants. Fourth, Brady applies only at the trial stage, but hardly any defendants go to trial any more. About 95% plead guilty, and Brady may not even apply to the plea bargaining process, when defendants need this information most. Finally, though Brady ignores the prosecutor's good faith (mens rea), its test continues to require some prosecutorial misdeed (actus reus). It does not focus exclusively on the defendant's guilt or innocence of the crime or punishment.
Brady's ringing rhetoric of innocence, then, is in some ways a hollow promise. Far from transforming the adversarial system into a quest for truth, it has merely tinkered at its margins.
Date of Authorship for this Version
Scalia, Supreme Court, Originalism, Formalism, Constitutional, Interpertation, Criminal Procedure, Blakely, Crawford, Apprendi, Booker, Confrontation Clause, Sentencing
Bibas, Stephanos, "Originalism and Formalism in Criminal Procedure: The Triumph of Justice Scalia, the Unlikely Friend of Criminal Defendants? " (2005). Scholarship at Penn Law. 80.