December 20, 2012 Articles

Brady Summaries and the Obligation to Disclose Favorable Evidence

What exactly must prosecutors turn over to criminal defendants?

By Steven F. Molo and Lucas M. Walker

Prosecutors and defense attorneys are well acquainted with the familiar rule of Brady v. Maryland, 373 U.S. 83 (1963): The government must disclose to criminal defendants evidence that is favorable to their defense. One issue that has arisen in connection with that duty, however, is what precisely the government must hand over. In their role as Brady gatekeepers, prosecutors have sometimes taken to giving defendants summaries of evidence (such as notes of witness interviews and the like), rather than providing the raw evidence itself. That practice may not satisfy Brady.

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