For some time, as long as a half century ago in May 1963, courts promised that the prosecution and defense would, as far as possible, engage on a level playing field. It was a “battle,” a controversy between two fully armed gladiators that would best serve the ends of justice by enabling the jury to make an informed judgment, with both sides in a position to present material information going to the question of guilt or innocence. To be sure, the opinion in Brady v. Maryland1 was, oddly enough, criticized by Justice Byron White who opined that the court was creating “in constitutional form a broad rule of criminal discovery.” A reading of the majority opinion made clear that the court did not shy away from being so criticized, for one cannot read the language of the opinion without having had a high hope that the rule will do just what disturbed White.

Nine years before Brady, in an opinion of later Justice Charles Evans Whittaker, written when he was then a district judge in United States v. Smith,2 it was opined that the legislative history justified a more liberal attitude by the courts in requiring the government to furnish bill of particulars (FRCP 7(f)).

It was hoped that exculpatory evidence that might never have been revealed would now be given to the defense, and that a full and fair adversarial testing would promote a fair and just verdict.3 Criminal defense practitioners lack access to haul a witness before the grand jury or to their office, to seek immunity for recalcitrant witnesses, to have their investigators designated as “special agents” (e.g., FBI, IRS-Criminal Division) with the resultant force and prowess of the government to “convince” witnesses to answer questions or give testimony prior to the bringing of a charge or the commencement of a trial.

With it all, on no lesser authority than our scholarly U.S. Court of Appeals for the Second Circuit, there is an informational gap that exists between the defense and the prosecution.4 These observations made by the learned court are close to a decade old, but what has been done about closing the gap? Is there a way to assure that we will not be informed one night on the news that some innocence project has found that a man was wrongly convicted? Can we safely rely on the benevolence of all prosecutors to see that the guilty are prosecuted and the innocent are exonerated? Do we have to forget what we know as human beings, namely that, and this is sadly so, in many prosecutorial offices some prosecutors count convictions much as a pitcher records his win and loss record. There are even offices in some parts of the country where the word “justice” is not as often used as the words “I won…”

We are fortunate to have at this time extraordinarily able members of the Second Circuit and the district court benches. Action can be taken, and must be taken, lest our criminal justice system be thought by the public to be fraught with miscarriages of justice.

Hopes and Intentions

It was hoped by the Framers that grand juries would provide a degree of independence and afford protection to one accused of crime. The Framers expected grand juries to sift through evidence in order to determine whether there was probable cause to bring a charge against a citizen. The history of the grand jury is glowingly described as “rooted in the common and civil law, extending back to Athens, pre-Norman England and the Assize of Clarendon, promulgated by Henry II.”5 To be sure, a mouthful. The Supreme Court has stated: “[t]he grand jury is an integral part of our constitutional heritage, which was brought to this country with the common law—it is a basic guarantee of individual liberty.”6 I am sure it will come as a surprise to my fellow members of the bar, but the English had the good sense to abolish the grand jury in 1933.7 It was then viewed as an unjustifiable “tool” of the prosecution, not as a true impartial sifter and evaluator of credible evidence. The famous allusion to a grand jury prepared to indict a ham sandwich if the prosecutor so desires is a well-known proposition.

Any hope that the grand jury could fulfill the Framers’ intentions that it be a bulwark of liberty was dashed in Costello v. United States.8 The court is without power to review the sufficiency of evidence before the grand jury. The exclusionary rule is inapplicable in grand jury proceedings, with the result that a witness called before a grand jury may be questioned on knowledge obtained through the use of illegally seized evidence.9 The handwriting was on the wall when the court as far back as 1884, held that with respect to the role of the grand jury, the Fifth Amendment was not applicable to the states either through Due Process or through the Fourteenth Amendment.10

With the grand jury affording no real protection to a citizen/accused, the criminal defense bar must present for payment the pledge that criminal proceedings will be conducted on an equal footing.

Unsatisfactory Result

Certainly the criminal defense bar, with the passage of time since the holding in Brady, can look back on what has occurred and conclude that the promises made as to equality between counsel in terms of information provided both to wage a prosecution and to conduct a defense as unsatisfactory. Exceptions and modifications have been made to the Brady rule, which in the end have led to repeated excusals of violations of the rule.

While the Brady decision gave criminal defendants the right to the disclosure of material information, the decision failed to define a standard of “materiality,” which led to uncertainty and to an evolution of the prosecutor’s subjective discretion to determine what is in fact material, as well as a narrowing over time of what was considered Brady material. In United States v. Agurs,11 materiality as it relates to disclosure of evidence was defined as when “the omitted evidence creates a reasonable doubt that did not otherwise exist.” Then, in United States v. Bagley,12 materiality was: “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Ten years later the standard was changed again by the decision of Kyles v. Whitley:13 “whether in [the undisclosed evidence's] absence [the defendant] received a fair trial, understood as a trial resulting in a verdict worthy of confidence.”

Finally, following the Supreme Court’s 1999 ruling in Strickler v. Greene,14 which went back to the reasonable probability of a different result test, a distinguished panel of the Second Circuit, in the case of United States v. Coppa,15 left solely to the discretion of the prosecutor whether material should be turned over under the Brady obligation in the following language: “the nature of the prosecutor’s constitutional duty to disclose has shifted from (a) an evidentiary test of materiality that can be applied rather easily to any item of evidence (would this evidence have some tendency to undermine proof of guilt?) to (b) a result-affecting test that obliges a prosecutor to make a prediction as to whether a reasonable probability will exist that the outcome would have been different if disclosure had been made” (emphasis added).

A prosecutor who is convinced that her assessment of the facts and theory of guilt is the correct one finds it difficult to perceive a defense theory of how the information would be able to be used. Further, a court, though composed of erudite members, may not be in the best position to judge how a particular criminal defense lawyer may be able to use to her client’s advantage a piece of evidence that was withheld. The Coppa theory, founded on Supreme Court precedent, leads to assumptions, uncertainty and a lack, perhaps, of a court’s inclination to disturb a verdict once rendered. With respect to a post-conviction analysis by a court it is well to keep in mind the sage words of Second Circuit Judge Jerome Frank, dissenting in United States v. Farina:16 “[w]hat influences juries, courts seldom know.” We successfully argued as far back as 1969 in United States v. Agone17 that Brady turnover should not be left to the judgment of a prosecutor who may, just may, be interested in “winning the case,” to make a judgment as to what and when a piece of evidence, developed by the prosecution, should be turned over to the defense. We warned in 1998, in a column published by the New York Law Journal, titled “Awaken Defense Bar, Your Client’s ‘Brady’ Rights Are Not Protected.”18 The same warning was repeated in “The Need for Enforcement of ‘Brady’ Rights”19 and “‘Brady’ and the Defendant’s Right to Such Material.”20 It can be said without an extended citation of cases that Brady compliance should not depend on the particular proclivities of a judge to whom the defendant’s case is assigned.

In the U.S. District Court for the District of Massachusetts, the court commissioned a detailed study of problems presented by what appeared to be an endemic violation of the Brady rule, what it perceived to be miscarriages of justice, and articulated what should be done to remedy the failings that had occurred and would likely continue to occur in the absence of a standing rule of court. See the report of the Boston Bar Association Task Force titled “Getting It Right: Improving the Accuracy and Reliability of the Criminal Justice System.21 For a comprehensive review of all district courts that have enacted a standing Brady rule, see “Brady v. Maryland Material in the United States District Courts: Rules, Orders and Policies.”22

As far back as 2003 we called upon the Southern District of New York and the Eastern District of New York to enact a standing Brady rule, which other courts in the Second Circuit have done. What can possibly explain the fact that the Southern and Eastern districts have failed to do what other courts within the Second Circuit had done, even when the circuit that year specifically recognized the informational gap.23

Seeking Standards

The criminal defense bar has taken steps to pressure the courts and the legislatures to correct what has been a problem in the prosecution of criminal cases affecting fundamental rights owed to an accused.

In 2003, the American College of Trial Lawyers proposed amending FRCP 11 and 16 so as to codify Brady. The proposal was meant to clarify the “nature and scope of favorable information, require the attorney for the government to exercise due diligence in locating information and establish deadlines by which the United States must disclose favorable information.”24 The Department of Justice opposed such codification in the FRCP, stating that Brady obligations are “clearly defined by existing law that is the product of more than four decades of experience with the Brady rule.”

Brady had been around for decades, but courts spent those decades reworking and redefining what exactly Brady meant, not simply applying a clearly defined rule to the cases brought before them. Rather than codify Brady, the Department of Justice favored making changes to the U.S. Attorney Manual, and so it was done, thereby leaving all the power and discretion in the hands of the prosecutor.

More recently, the May 2013 edition of The Champion, a publication of the National Association of Criminal Defense Lawyers, which was entirely devoted to spelling out in detail the ways that basic constitutional rights owed to everyone accused of a crime living under the protection of our Constitution have too often been violated and recommended what steps must be taken to correct what appeared to be endemic violations of the Brady rule.25

Few can forget the pervasive, Brady violations that occurred in the prosecution of former Senator Theodore “Ted” Stevens. The district court appointed a Master to detail the Brady violations. It took the master 514 pages to report26 on the misconduct of the prosecutors who were obviously out to “win” the case, whose desires were to have a “victory notch,” regardless of the cost to the health and life of the defendant, a senator no less. Attorney General Holder consented to a dismissal of all charges, but it was too late. Enormous damage had been done to our system and to Stevens’ life.

All of this makes it clear that we have reached the end of the road when we simply allowed prosecutors to roam at large, confident that justice would be their sole mission, or leave the fortunes of a particular defendant to the individual judgments of members of the bench, without there being a requirement of standardization.

Action Needed

Bar groups must review the following articles that favor OPEN-FILE DISCOVERY, and make a push for open-file discovery to be the norm in federal courts: (1) “Exculpatory Evidence, Ethics, and the Road to the Disbarment of Mike Nifong: The Critical Importance of Full Open-File Discovery”27; (2) “Brady is the Problem: Wrongful Convictions and the Case for ‘Open File’ Criminal Discovery”28; and (3) “The New Russian Roulette: Brady Revisited.”29

Each district court should issue an ETHICAL RULE ORDER, enabling the defense bar to take direct action against a prosecutor who deserves to be sanctioned.30

It is clear there are a myriad of things to be done, each district has its own rulemaking committee, the FRCP provides a mechanism for rules to be amended or added to, and courts may, if need be, become more sensitive to the government’s Brady obligations. What has to be done will depend on the particularities of each jurisdiction, but it is imperative to recognize that prosecutors do not generally have a monopoly on virtue.31

In light of the foregoing, which we knew would result, despite the grandness of the language in Brady, courts really have an obligation to do a better job of monitoring prosecutors’ constitutional obligation to provide discovery. As personal rewards can run high if a prosecution is successful, courts need to take a more active policing role, and bar associations, the Federal Bar Council included, have to take a vigorous role to ensure that all persons having exposure to the criminal justice system receive their just desserts.

Jay Goldberg is a member of Jay Goldberg P.C. and a former acting U.S. Attorney, Northern District of Indiana. Alex S. Huot, an associate with the firm, assisted in the preparation of this article.


1. 373 U.S. 83, 93 (separate opinion of White, J. concurring in the judgment) (1963).

2. 16 F.R.D. 373 (W.D. Mo. 1954).

3. The fact is that strictly speaking, what is involved in a criminal case is testing the government’s proof to see whether it can overcome the defendant’s right to the presumption of innocence. And, truth is measured by whether the government has met its burden of proof.

4. United States v. Yakobowicz, 427 F.3d 144 (2d Cir. 2005); United States v. Jackson, 345 F.3d 59 (2d Cir. 2003).

5. Morse, “A Survey of the Grand Jury System,” 10 Ore. L. Rev. 101 (1931).

6. United States v. Mandujano, 425 U.S. 564, 571 (plurality opinion) (1976).

7. Elliff, “Notes on the Abolition of the English Grand Jury,” 29 Am. Inst. Crim. L. & Criminology 3 (Summer 1938).

8. 350 U.S. 359 (1956).

9. United States v. Calandra, 414 U.S. 338 (1974). In Gelbard v. United States, 408 U.S. 41 (1972), the court interpreted the Federal Wiretap Statute to prohibit utilization of unlawful wiretap information as a basis for questioning witnesses before grand juries.

10. Hurtado v. California, 110 U.S. 516 (1884).

11. 427 U.S. 97, 112 (1976).

12, 473 U.S. 667, 682 (1985).

13. 415 U.S. 419, 434 (1995).

14, 527 U.S. 263 (1999).

15. 267 F.3d 132, 142 (2d Cir. 2001).

16. 184 F.2d 18 (2d Cir. 1950).

17. 302 F.Supp. 1258 (S.D.N.Y. 1969).

18. Goldberg, New York Law Journal (March 12, 1998).

19. Goldberg, The New York State Association of Criminal Defense Lawyers publication titled The Mouthpiece (March/April 1998).

20. Goldberg, The Champion (August 1998).

21. Available at:

22. Hooper and Thorpe, “Brady v. Maryland Material in the United States District Courts: Rules Orders, and Policies—Report to the Advisory Committee on Criminal Rules of the Judicial Conference of the United States,” Federal Judicial Center (May 31, 2007). (Available at:$file/bradyma2.pdf). See, District of Connecticut Brady Rule: D. Conn. L. Crim. R. Appx. §(A)(11) (requiring disclosure of “[a]ll information known to the government which may be favorable to the defense” within 10 days of arraignment); Northern District of New York Brady Rule: N.D.N.Y. L. R. 14.1 (requiring disclosure of Brady information 14 days after arraignment and Giglio information no less than 14 days prior to jury selection).

23. See Yakobowicz and Jackson, supra.

24. Hooper and Thorpe, “Brady v. Maryland Material in the United States District Courts: Rules Orders, and Policies—Report to the Advisory Committee on Criminal Rules of the Judicial Conference of the United States,” Federal Judicial Center (May 31, 2007).

25. See also, the treatise by former prosecutor Professor Bennett Gershman titled Prosecutorial Misconduct, which is regularly supplemented and updated with new developments in this area.

26. See Henry F. Shuelke III, Report to Hon. Emmet G. Sullivan of Investigation Conducted Pursuant to the Court’s Order, dated April 7, 2009 (“Shuelke Report”) at 99 (available at

27. Mosteller, 15 Geo. Mason L. Rev. 257 (Winter 2008).

28. Gregory, 46 U.S.F. L. Rev. 819 (Winter 2012).

29. Joseph, 17 Cap. Def. J. 33 (Fall 2004).

30. See Model Ethical Rule Order, United States District Court for the District of Massachusetts, which court also has a standing Brady rule. The Ethical Rule is discussed in Scheck and Gertner, “Combating Brady Violations with an ‘Ethical Rule’ Order for Disclosure of Favorable Evidence,” The Champion (May 2013).

31. Too generous an assessment and an oversimplification of the aspirations of a prosecutor to simply do justice is set forth in Justice Sutherland’s opinion, writing for the court, in Berger v. United States, 295 U.S. 78 (1935).