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)).
