A recent Stanford Law Review article, “The Brady Colloquy” (
http://www.stanfordlawreview.org/online/brady-colloquy), by visiting assistant professor Jason Kreag, “offers a decidedly low-tech, simple, and, to some, perhaps naive suggestion to address the problem of undisclosed Brady evidence: During pretrial hearings, and before a defendant enters a guilty plea, the court should ask the prosecutor a handful of questions on the record.” This procedure is proposed as a means to ameliorate the “distinctly vexing problem for the criminal justice system” of “wrongful convictions caused by prosecutorial misconduct,” in this case, prosecutorial failure to recognize or comply with Brady obligations. The suggested Brady colloquy includes 5 questions (four pretrial questions, the fifth at the conclusion of the prosecution’s case):
1. Have you reviewed your file, and the notes and file of any prosecutors who handled this case before you, to determine if these materials include information that is favorable to the defense?
2. Have you requested and reviewed the information law enforcement possesses, including information that may not have been reduced to a formal written report, to determine if it contains information that is favorable to the defense?
3. Have you identified information that is favorable to the defense, but nonetheless elected not to disclose this information because you believe that the defense is already aware of the information or the information is not material?
4. Are you aware that this state’s rules of professional conduct require you to disclose all information known to the prosecutor that tends to be favorable to the defense regardless of whether the material meets the Brady materiality standard?
5. Now that you have heard the lines of cross-examination used by the defense and have a more complete understanding of the theory of defense, have you reviewed your file to determine if any additional information must be disclosed?
As the article suggests, a Brady colloquy is “at a minimum . . . an idea worth testing – test that could be implemented today by any judge who wants to . . . actively protect the rule of law by ensuring that prosecutors meet their due process and ethical obligations.” While the article notes that some judges may see this suggestion as too pro-defense, or overly as judicial meddling in the prosecution’s case, given the undeniable recurrence of wrongful convictions resulting from prosecutorial misconduct in this area, some meddling would seem to be warranted and salutary for the criminal justice system as a whole.
HT: Jill Paperno
