Prosecutors seldom muse about discovery. With standard discovery orders and standard, even “open-file” responses, there is often little to mull over in the average prosecution. Yet a pair of recent cases very clearly shows that failure to comply with the dictates of Brady v. Maryland, 373 U.S. 83 (1963), is a matter of increasing appellate scrutiny.
Brady held that the suppression by the prosecution of evidence favorable to the defendant upon his or her request violates due process when that evidence is material to guilt or punishment. This is true whether or not the suppression is the result of the prosecution’s good or bad faith.
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