Symposium: Discretion and Misconduct: Examining the Roles, Functions, and Duties of the Modern Prosecutor

Document Type



The Supreme Court’s decision in Brady v. Maryland presented prosecutors with new professional challenges. In Brady, the Supreme Court held that the prosecution must provide the defense with any evidence in its possession that could be exculpatory. If the prosecution fails to timely turn over evidence that materially undermines the defendant’s guilt, a reviewing court must grant the defendant a new trial. While determining whether evidence materially undermines a defendant’s guilt may seem like a simple assessment, the real-life application of such a determination can be complicated. The prosecution’s disclosure determination can be complicated under the Brady paradigm because the prosecutor’s office is burdened with arguably conflicting obligations. On the one hand, the prosecution must build its case against the accused in an adversarial system of justice. On the other hand, the prosecution must assess each part of its investigation as to how and whether the defense could use the evidence. If the defense could possibly use the evidence, the prosecutor must then determine whether that evidence must be turned over under Brady or whether the prosecutor has the discretion not to disclose.

This paper discusses prosecutorial Brady dilemmas through eight hypotheticals. The hypotheticals are not unusual types of difficult problems that prosecutors face when building their cases. The problems include issues related to possible prosecution witness impeachment material, lab reports that do not clearly support the defendant’s guilt, codefendant testimony and plea agreements, and conflicting eye witness accounts. After presenting the hypotheticals, the paper works through each of the problems and posits a conclusion about whether the prosecution has a Brady obligation to disclose the information to the defense.