In this article, the author proposes that the prosecution’s obligation to disclose exculpatory information to the defense be formalized by statute, court rule, or internal protocol in ways that would reflect the current state of our knowledge of and experience with both Brady and wrongful convictions. This would improve on the current ineffective constitutional protection—and any existing statutory or rule-based regimes—in several ways. First, such a formalized regime would require disclosure of all materials that are reasonably helpful to the defense. Second, unlike the constitutional doctrine, which provides no reliable mechanism for monitoring police disclosure to the prosecution, an accompanying schedule (or “checklist”) would require specific categories of exculpatory information that the prosecution would have to secure from the police or other investigative agency and then disclose to the defense. Third, the prosecution would be required to certify that it has used due diligence to collect and disclose all of the required information. Fourth, unlike the constitutional Brady rule, which requires the defendant to show materiality whenever suppressed evidence is discovered post-conviction, if suppression of evidence required on the checklist is discovered post-conviction, the burden of proof would shift and the prosecution would be required to prove that the suppression was harmless beyond a reasonable doubt. As to any other information, the defendant would continue to bear the burden of showing materiality. Finally, there would be a public interest declination exception and a process for the prosecution to apply for a protective order where necessary to protect a witness or another investigation.
Lissa Griffin, Pretrial Procedures for Innocent People: Reforming Brady, 56 N.Y.L. Sch. L. Rev. 969 (2011)