In Brady v. Maryland (1963) 373 U.S. 83, the Supreme Court held that exculpatory evidence, or evidence favorable to an accused in a criminal case and material to guilt or punishment, must be disclosed by the prosecution to the defense. Failure to disclose constitutes a violation of due process. In 1963, this decision theoretically sought to place an affirmative duty on the government to promote fairness in prosecution. However, the reality differs from the vision. Brady does not achieve the promise of fairness in prosecution. Conversely, Brady only serves to underscore the need for a better "open file" type of government discovery policy.

The limitations created by Brady on a prosecutor's duty to disclose do little to advance justice. Consider this simple scenario: The prosecution has her investigator (a member of a law enforcement agency) interview potential witnesses in a criminal case. Half of those people approached refuse to speak with the investigator. The investigator writes a report summarizing the witness statements he obtained. The investigator does not disclose the identities of the witnesses who refused to speak with him. Under Brady, this would not be a violation. Neither "exculpatory" evidence nor evidence relating to guilt or punishment was obtained and therefore, under Brady, there exists no obligation to disclose the identities of potential witnesses who refused to provide information to the government. This is irrespective of the fact that perhaps, these same potential witnesses would be forthcoming with a defense investigator, perhaps they would be willing to speak with someone other than the government.

This scenario highlights how the government's reliance on Brady actually serves to limit what is required to be produced to the defense. Where Brady sought to achieve fairness in discovery, the decision has instead achieved a practice of classifying information as "non-Brady material," followed by lawfully not disclosing it to the defense. But what of the ethical considerations?

In Formal Opinion 09-454 (July 8, 2009), the ABA Standing Committee on Ethics and Professional Responsibility issued an opinion on Rule 3.8(d) of the Model Rules of Professional Conduct. The opinion states that aside from constitutional (due process), statutory (18 USC 3500, The Jencks Act), procedural (Federal Rules of Criminal Procedure Rules 16 and 26.3) or court-imposed obligations (i.e. Brady), the prosecutor has an ethical obligation to disclose evidence and information favorable to the defense. The opinion explains the reasons that Rule 3.8 expands the prosecutorial Brady obligation, in which limitations dictated by the categorizing of material were removed. In other words, Rule 3.8 cautions the prosecutor to disclose all information, not just what is exculpatory. Rule 3.8(d) and the ABA Formal Opinion recognize the inherent dysfunction of the prosecutor determining what is "exculpatory" to the defense. It is a burden and responsibility a prosecutor should not bear. The Rule and the Opinion also recognize that a requirement limiting disclosure to only that information deemed "exculpatory" does not promote fairness or justice.

The question of what constitutes Brady material and what is required for proper disclosure is a question that has been repeated countless times since the Supreme Court's decision in 1963. It is a question prosecutors grappled with, as do courts upon review.

The District Court in Alaska was faced with this question in the recent case of United States v. Kott, WL 148447 (D. Alaska Jan. 13, 2010). In 2007 Peter Kott, former Alaska House Speaker, was indicted on charges of political corruption. At the trial, the government's principal witnesses were Bill Allen and Rick Smith. Kott was convicted on Sept. 25, 2007 of conspiracy, Hobbs Act extortion, and federal programs bribery. He was sentenced to a six-year term of imprisonment. He appealed his sentence and conviction to the 9th Circuit.

Meanwhile, the same prosecution team for Kott moved on to the prosecution of Senator Ted Stevens. Stevens was convicted of political corruption, however, subsequent to his conviction it was discovered that the prosecution team had failed to disclose to the defense Brady materials relevant to a witness, Bill Allen. The government dismissed the charges against Stevens.

Just as Kott's oral argument was to be heard before the 9th Circuit, the story broke of the prosecution's failure to disclose Brady material relating to Bill Allen in the Steven's case. Kott then filed a Brady motion in the 9th Circuit seeking to require the government to disclose all evidence favorable to the accused. The motion made note of the Bill Allen connection with the Stevens case.

The government took the unusual step of asking the 9th Circuit to remand the case to the district court on the Brady issue. The government also withdrew its opposition to Kott's request for bail pending appeal. The 9th Circuit granted Kott's motion for bail, and after serving a year and a half in custody, Kott was released on bail pending appeal.

The 9th Circuit also remanded for the district court to determine if a Brady violation occurred, and if so, whether the violation prejudiced Kott and what the remedy should be. The government then produced thousands of pages of discovery to the defense, much of it relative to attacking the credibility of Allen and Smith. The government conceded its failure to provide these materials in a timely manner, but disputed that the documents contained Brady material. The government took this position irrespective of the fact that the materials contained prior inconsistent statements of government witnesses, evidence of government witness mental problems and substance abuse, and evidence of the witnesses' criminal behavior relating to sexual relations with minors.

The district court held that the documents produced by the government were not material "because there is no reasonable probability that its timely production and use by the defense would have resulted in different verdicts." The court concluded that the government did breach its obligation, but that the breach wasn't material and therefore, Kott wasn't prejudiced.

Finding no Brady violation, the district court denied Kott's motion to dismiss for failure to comply with Brady. The case was returned to the 9th Circuit for continuing appellate review. It remains pending now.

Kott is illustrative of the burden the government bears in determining "what is Brady" and later, how that same burden is passed on to the trial court and often an appellate court.

All of this monumental decision making by the government, followed by speculation in hindsight by a court, achieves only a deprivation of due process to the defense. No one — not a prosecutor nor a court — possesses the divine ability to conclude what would or would not make a difference to a particular defense attorney, defendant or juror.

Brady creates a wall of supposition and individual judgment so high and dense that truth is obscured by the shadow. Recognizing the flaws in Brady, many states have adopted "open file" discovery policies. Florida surprisingly is in the lead, reported to have the most "open file" policy both for prosecutor and investigator files. North Carolina adopted an open file policy after the Duke lacrosse debacle. This approach to discovery is gaining momentum.

As recently as Jan. 4, 2010, and likely in response to the Stevens case, Deputy Attorney General David Ogden issued a Memorandum for Department of Justice prosecutors on the subject of "Guidance for Prosecutors Regarding Criminal Discovery." (This memorandum was relied on by Kott in his briefs.) While the memorandum does not address or consider Model Rule 3.8 or the ABA opinion, it does state "Prosecutors are also encouraged to provide discovery broader and more comprehensive than the discovery obligations."

Those prosecutors who elect to provide broader and more comprehensive discovery to the defense do so to ensure that justice is served and the defense is treated fairly and provided all material that could possibly assist the defense. The government should embrace an open file policy because the government is charged with doing justice. As the late great Federal Judge Florence Marie Cooper always said, "I do hold the government to a higher standard." The only way for the government to achieve a higher standard of integrity is for its prosecutors to abandon the failed promise of Brady and embrace a broader definition of disclosure.