Copyright (c) 2010 School of Law, Santa Clara University
Santa Clara Law Review
ARTICLE: WHEN SELF-POLICING DOES NOT WORK: A PROPOSAL FOR POLICING PROSECUTORS IN THEIR OBLIGATION TO PROVIDE EXCULPATORY EVIDENCE TO THE DEFENSE
SANTA CLARA LAW REVIEW
50 Santa Clara L. Rev. 303
It is incumbent upon all those who study the criminal justice system to evaluate the causes of wrongful convictions, and to consider ways to address them. 1 While certain causes - including faulty eyewitness identifications and unreliable confessions - have, appropriately, received significant attention 2 and useful reforms have been proposed, 3 the role of prosecutorial misconduct in wrongful conviction cases has failed to generate reform efforts within the criminal justice community.
Under Brady v. Maryland, prosecutors have a constitutional obligation to provide the defense with exculpatory material. 4 If a prosecutor fails in this obligation, the defendant is entitled to a new trial, provided that he or she can show that there is a "reasonable probability" that the outcome of the proceeding would have been different, had the exculpatory evidence at issue not been withheld. 5
Numerous commentators have questioned whether the remedy, under current Brady jurisprudence, is sufficient to assure that wrongful convictions are being avoided, individual defendants are receiving a fair trial, and that the integrity of the criminal justice system is being protected. 6 Part I of this article examines whether the current remedy for a Brady violation - the possibility of a new trial, if the Brady prejudice standard 7 is met - serves as a sufficient deterrent to prosecutors, and concludes that it does not; Part II evaluates various alternative remedies proposed by commentators; and Part III suggests a new incentive mechanism.
Under the new incentive mechanism that I am ...
If you are interested in obtaining a lexis.com® ID and Password, please contact us at 1-(800)-227-4908 or visit us at http://www.lexisnexis.com/.