The jury's brady fright

Jason Kreag

Research output: Contribution to journalReview articlepeer-review

3 Scopus citations


When prosecutors violate due process by suppressing evidence favorable to criminal defendants in violation of Brady v. Maryland, their misconduct causes serious harm to defendants and to the criminal justice system. Scholars have focused on these harms, responding by offering proposals designed to increase compliance with the defendant's Brady right. Nevertheless, the misconduct continues, evidenced by the steady stream of exonerations and other cases overturned because of Brady violations. This Article addresses this problem from a different angle. It demonstrates that the narrow focus on harms to the defendant and the system overlooks harms to jurors and the institution of the jury. That is, violations of the defendant's Brady right prevent the jury from fulfilling its constitutional role and render it an instrument of the prosecutor's misconduct. To address these overlooked harms, this Article proposes a separate and distinct Brady-like right for the jury-the jury's Brady right. This Article finds support for this right in the Sixth Amendment and the Due Process Clauses of the Fifth and Fourteenth Amendments. Recognizing this right will reinforce the jury as an essential constitutional actor. Furthermore, even if the Supreme Court is not prepared to recognize a new right in the jury, explicit consideration of the harms to the jury from violations of the defendant's Brady right offers promise for increasing compliance with Brady.

Original languageEnglish (US)
Pages (from-to)345-395
Number of pages51
JournalBoston University Law Review
Issue number2
StatePublished - 2018

ASJC Scopus subject areas

  • Law


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