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The Journal of Criminal Law & Criminology






The government’s duty to disclose favorable evidence to the defense under Brady v. Maryland has become one of the most unenforced constitutional mandates in criminal law. The intentional or bad faith withholding of Brady evidence is by far the most egregious type of Brady violation and has led to wrongful convictions, near executions, and other miscarriages of justice. This Article suggests that two ramifications should flow from intentional Brady violations. First, courts should have the power to inform the jury of the government’s Brady misconduct by imposing a specially crafted punitive jury instruction. Unlike the ineffective sanctioning scheme currently used to redress Brady violations, the proposed “Brady Instruction” could serve as a powerful deterrent against this virulent form of prosecutorial misconduct. Second, under wellestablished evidentiary principles, a litigant’s intentional suppression of relevant evidence gives rise to an inference that the litigant’s case is weak and that the litigant knew his case would not prevail if the evidence was presented at trial. The government’s intentional Brady misconduct falls within the scope of the “consciousness of a weak case” inference. Given that the government always has the burden of proof in a criminal case, evidence that the government’s case is weak is relevant to whether the government can prove guilt beyond a reasonable doubt. Brady misconduct evidence also meets all other requirements for admissibility under the rules of evidence. As such, the blanket exclusion of this evidence could infringe upon the defendant’s constitutional right to present a defense.

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Evidence Commons



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